On behalf of our members, TCSA recently submitted public comments to Education Commissioner Mike Morath on matters impacting students at public charter schools: New Instructional Facility Allotment and separately, the Student Attendance Accounting Handbook.
RE: Proposed Amendment to 19 TAC Chapter 61, School Districts, Subchapter CC, Commissioner's Rules Concerning School Facilities, §61.1034, New Instructional Facility Allotment
The Texas Charter Schools Association (“TCSA”) is the statewide membership organization for effective charter schools of all types, proudly representing nearly 275,000 students at more than 675 open-enrollment charter school campuses. We appreciate the opportunity to submit comments in response to the Proposed Amendment to 19 TAC Chapter 61, School Districts, Subchapter CC, Commissioner's Rules Concerning School Facilities, §61.1034, New Instructional Facility Allotment (“NIFA”). TCSA’s comments address concerns that the proposed NIFA rules, without further clarity, may exclude schools that would otherwise qualify for NIFA funds.
Definitions of New Instructional Facility
The proposed NIFA rules, under §61.1034(a)(3)(A) define a new instructional facility as a “facility that includes: a newly constructed instructional facility, which is a new instructional campus built from the ground up.” Additionally, the rules indicate that an instructional campus has “its own unique ID number.” Taking these two definitions together, TCSA is concerned that the NIFA rules limit eligibility to only campuses receiving a campus ID number for the first time, and excluding existing schools with existing campus ID numbers that are building new facilities to also be eligible for NIFA funds. To ensure that schools constructing new buildings for an existing campus ID number remain eligible for NIFA, TCSA recommends removing ‘new’ so that the definition under §61.1034(a)(3)(A) reads as “a newly constructed instructional facility, which is an instructional campus built from the ground up.”
Additionally, under §61.1034(3)(B) and (C), the definitions related to repurposing an instructional facility or leasing an instructional facility, may unintentionally limit a public school’s eligibility for NIFA funds to repurpose or lease a facility that was previously used as a private school. Under §46.001 of the Texas Education Code, and under §61.1034(a)(2) of the Texas Administrative Code, an instructional facility must be “used predominately for teaching the curriculum required by TEC §28.002.” The repurposed instructional facility and the leased facility definitions indicate that the facility must be “renovated to become an instruction facility for the first time” or “a leased facility operating for the first time as an instructional facility.” By using “for the first time” in these definitions, the definitions seem to limit a school’s eligibility for NIFA funds to renovate a former private school or lease a former private school facility. Private schools do not meet the definition of an instructional facility under §46.001, since they are not required to teach the “curriculum required by TEC §28.002.” To clarify, and to ensure public schools are eligible for NIFA funds to renovate or lease former private school facilities, TCSA recommends adding “as a public school” to the definitions of repurposed instructional facility and leased facility to read, in part, as follows:
(B) a repurposed instructional facility, which is a facility that has been renovated to become an instructional facility for the first time as a public school.
(C) a leased facility operating for the first time as a public school instructional facility with a minimum lease term of not less than 10 years.
Potential Relief for Harvey
As a result of the destruction caused by Hurricane Harvey, many public schools throughout southeast Texas are currently, or will be in the future, rebuilding or renovating instructional facilities that were flooded. TCSA urges the Agency to review potential options of using NIFA funds to assist schools that need to rebuild after Hurricane Harvey.
RE: Proposed Amendment to 19 TAC Chapter 129, Student Attendance, Subchapter AA, Commissioner's Rules, §129.1025, Adoption by Reference: Student Attendance Accounting Handbook
The Texas Charter Schools Association (“TCSA”) is the statewide membership organization for effective charter schools of all types, proudly representing nearly 275,000 students at more than 675 open-enrollment charter school campuses. We appreciate the opportunity to submit comments in response to the Proposed Amendment to 19 TAC Chapter 129, Student Attendance, Subchapter AA, Commissioner's Rules, §129.1025, Adoption by Reference: Student Attendance Accounting Handbook. Based on the changes from House Bill 2442 of the 85th Legislative Session, and the June 27, 2017 To the Administrator Letter (TAA), our comments focus on changes needed to the Student Attendance Accounting Handbook (“SAAH”) for clarity.
3.8 Calendar: Instructional Minutes v. Operational Minutes
House Bill 2610 from the 84th Legislative Session changed the requirement of 180 days per year to 75,600 minutes of instruction. During the most recent legislative session, House Bill 2442 sought to correct some of the unintended consequences of House Bill 2610. As part of the changes to school calendar requirements, House Bill 2442 changed “minutes of instruction” to minutes of operation”. However, the SAAH does not use these two terms consistently when referencing the 75,600 minutes requirement.
In section 3.8 Calendar, the SAAH starts by stating that schools “must operate so that it provides at least 75,600 minutes of instruction.” In the following paragraph, the SAAH references the accumulation of “75,600 minutes of operation.” Additionally, the TEA TAA regarding Minutes of Operation-Updates to House Bill (HB) 2442 states that schools are required to “provide 75,600 minutes of operation.”
Though House Bill 2442 does not take effect until the 2018-2019 school year, if the Agency is going to implement the minutes of operation requirement, instead of the minutes of instruction requirement, we urge the Agency to amend the SAAH so all references to 75,600 minutes read as “75,600 minutes of operation” instead of “75,600 minutes of instruction”.
Charter Schools with Unique Programs
The SAAH addresses the minutes requirement for district and charter schools operating alternative education programs (AEPs). Under Section 10, the SAAH indicates that a school operating an AEP is eligible to receive full ADA if the district or charter school provides at least 43,200 minutes of instruction. However, the SAAH does not address minute requirements or waivers for other unique programs.
The June 27, 2017, TAA letter indicates that schools operating programs such as “dropout recovery campus, a day treatment facility, a residential treatment facility, a psychiatric hospital, a school program offered at a correctional facility, an alternative education program (AEP), a disciplinary alternative education program (DAEP), and a school operating under Texas Education Code (TEC), §29.259” will receive full ADA funding so long as the school complies with the “four-hour instruction rule.” The TAA goes on to say schools offering these programs do not need to submit a waiver and a school will automatically receive a waiver from the 75,600 minutes of operation requirement. Unfortunately, the SAAH does not provide any mention of such a waiver.
For clarity, and consistency, TCSA asks the Agency to include language in the 2017-2018 SAAH addressing the automatic waiver for school district and charter school programs serving students in all AEPs as well as hospitals, treatment centers, correctional facilities, and adult education programs under §29.259.
Charter Schools Operating Prior to January 1, 2015
Finally, the SAAH does not address automatic waivers for charter schools operating prior to January 1, 2015. Specifically, House Bill 2442 from the 85th Legislative Session allows charter schools operating prior to January 1, 2015, and campus or site expansions approved by the commissioner after January 1, 2015, to receive full ADA funding as calculated prior to January 1, 2015. Though House Bill 2442 will not be effective until the 2018-2019 school year, the Agency decided to implement this change in the 2017-2018 school year through an automatic waiver.
According to the TAA regarding Minutes of Operation-Updates to House Bill (HB) 2442, charter schools will receive full funding if “they report 180 days of attendance and comply with the four-hour instruction rule.” However, the 2017-2018 SAAH does not mention this option or automatic waiver. In order to ensure all charter schools are aware of the requirements and to remain consistent, TCSA urges the Agency to include the automatic waiver language, as well as the option to provide 180 days with the four-hour instructional rule in the 2017-2018 SAAH for charter schools operating prior to January 1, 2015, including any expansions approved after January 1, 2015.
TCSA recognizes and applauds the efforts of TEA in addressing the disruptive impact that Hurricane Harvey had on over 1.4 million schoolchildren in Texas. TEA’s guidance and continued leadership to assist schools to reopen and serve students is remarkable. Though TEA continues to issue guidance on a daily basis, to assist schools throughout the school year, TCSA recommends a section specifically dedicated to attendance, bad weather days, and funding as it relates to Hurricane Harvey. TCSA understands that the Agency is still developing solutions for schools, but a section in the SAAH providing contact information and already approved waivers would be helpful.
 Instructional day is defined as the “portion of the school day where instruction takes place. The instructional day includes lunch, recess, intermissions, etc.” 2017-2018 Student Attendance Accounting Handbook, 273.
 Operational time is defined as “the time of when the first school bell to the last school bell (bell to bell).” Id. at 274.
 Id. at 69
 House Bill 2442 allows a charter school operating prior to January 1, 2015 with an academic accountability performance rating of C or higher, to expand, with approval from the commissioner, and receive full ADA funding as calculated prior to January 1, 2015.