88R7914 KJE-D

By: Dutton H.B. No. 2721

A BILL TO BE ENTITLED

AN ACT

relating to accelerated and supplemental instruction provided to public school students who fail to achieve satisfactory performance on certain assessment instruments and access to criminal history record information for certain tutors providing that instruction.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 7.010(c), Education Code, is amended to read as follows:

(c) The electronic student records system must permit an authorized state or district official or an authorized representative of an institution of higher education to electronically transfer to and from an educational institution in which the student is enrolled and retrieve student transcripts, including information concerning a student's:

(1) course or grade completion;

(2) teachers of record;

(3) assessment instrument results;

(4) receipt of special education services, including placement in a special education program and the individualized education program developed; and

(5) personal graduation plan as described by Section [28.0212 or] 28.02121[, as applicable].

SECTION 2. Section 12.104(b), Education Code, as amended by Chapters 542 (S.B. 168), 887 (S.B. 1697), 915 (H.B. 3607), 974 (S.B. 2081), and 1046 (S.B. 1365), Acts of the 87th Legislature, Regular Session, 2021, is reenacted and amended to read as follows:

(b) An open-enrollment charter school is subject to:

(1) a provision of this title establishing a criminal offense;

(2) the provisions in Chapter 554, Government Code; and

(3) a prohibition, restriction, or requirement, as applicable, imposed by this title or a rule adopted under this title, relating to:

(A) the Public Education Information Management System (PEIMS) to the extent necessary to monitor compliance with this subchapter as determined by the commissioner;

(B) criminal history records under Subchapter C, Chapter 22;

(C) reading instruments and accelerated reading instruction programs under Section 28.006;

(D) accelerated instruction under Section 28.0211;

(E) high school graduation requirements under Section 28.025;

(F) special education programs under Subchapter A, Chapter 29;

(G) bilingual education under Subchapter B, Chapter 29;

(H) prekindergarten programs under Subchapter E or E-1, Chapter 29, except class size limits for prekindergarten classes imposed under Section 25.112, which do not apply;

(I) extracurricular activities under Section 33.081;

(J) discipline management practices or behavior management techniques under Section 37.0021;

(K) health and safety under Chapter 38;

(L) the provisions of Subchapter A, Chapter 39;

(M) public school accountability and special investigations under Subchapters A, B, C, D, F, G, and J, Chapter 39, and Chapter 39A;

(N) the requirement under Section 21.006 to report an educator's misconduct;

(O) [intensive programs of instruction under Section 28.0213;

[(P)] the right of a school employee to report a crime, as provided by Section 37.148;

(P) [(Q)] bullying prevention policies and procedures under Section 37.0832;

(Q) [(R)] the right of a school under Section 37.0052 to place a student who has engaged in certain bullying behavior in a disciplinary alternative education program or to expel the student;

(R) [(S)] the right under Section 37.0151 to report to local law enforcement certain conduct constituting assault or harassment;

(S) [(T)] a parent's right to information regarding the provision of assistance for learning difficulties to the parent's child as provided by Sections 26.004(b)(11) and 26.0081(c) and (d);

(T) [(U)] establishment of residency under Section 25.001;

(U) [(V)] school safety requirements under Sections 37.108, 37.1081, 37.1082, 37.109, 37.113, 37.114, 37.1141, 37.115, 37.207, and 37.2071;

(V) [(W)] the early childhood literacy and mathematics proficiency plans under Section 11.185;

(W) [(X)] the college, career, and military readiness plans under Section 11.186; and

(X) parental options to retain a student under Section 28.02124.

SECTION 3. Section 12.111(b), Education Code, is amended to read as follows:

(b) A charter holder of an open-enrollment charter school shall consider including in the school's charter a requirement that the school develop and administer personal graduation plans under Section [Sections 28.0212 and] 28.02121.

SECTION 4. Section 22.0825(b), Education Code, is amended to read as follows:

(b) The agency shall subscribe to the criminal history clearinghouse as provided by Section 411.0845, Government Code, and may obtain from any law enforcement or criminal justice agency all criminal history record information and all records contained in any closed criminal investigation file that relate to:

(1) a specific applicant for employment or current or former employee of a school district, district of innovation, open-enrollment charter school, other charter entity, regional education service center, or shared services arrangement; or

(2) an individual who provides accelerated or supplemental instruction services under Section 28.0211 as a tutor on behalf of a service provider.

SECTION 5. The heading to Section 22.0833, Education Code, is amended to read as follows:

Sec. 22.0833. NATIONAL CRIMINAL HISTORY RECORD INFORMATION REVIEW OF NONCERTIFIED EMPLOYEES AND CERTAIN SERVICE PROVIDERS.

SECTION 6. Section 22.0833(a), Education Code, is amended to read as follows:

(a) This section applies to a person who is not an applicant for or holder of a certificate under Subchapter B, Chapter 21, and who on or after January 1, 2008:

(1) [,] is offered employment by:

(A) [(1)] a school district or open-enrollment charter school; or

(B) [(2)] a shared services arrangement, if the employee's or applicant's duties are or will be performed on school property or at another location where students are regularly present; or

(2) provides accelerated or supplemental instruction services under Section 28.0211 as a tutor on behalf of a service provider with whom a school district, open-enrollment charter school, or shared services arrangement contracts.

SECTION 7. Section 22.0834(a-1), Education Code, is amended to read as follows:

(a-1) This section does not apply to a contracting entity, subcontracting entity, or other person subject to Section 22.0833(a)(2) or 22.08341.

SECTION 8. Section 22.085, Education Code, is amended by amending Subsection (c) and adding Subsection (c-1) to read as follows:

(c) A school district, open-enrollment charter school, or shared services arrangement may not allow a person [who is an employee of or applicant for employment by an entity that contracts with the district, school, or shared services arrangement] to serve at the district or school or for the shared services arrangement if:

(1) the person is:

(A) an employee of or applicant for employment by an entity that contracts with the district, school, or shared services arrangement; or

(B) an individual who provides accelerated or supplemental instruction services under Section 28.0211 as a tutor on behalf of a service provider with whom the district, school, or shared services arrangement contracts; and

(2) the district, school, or shared services arrangement obtains information described by Subsection (a) through a criminal history record information review concerning the person [employee or applicant].

(c-1) A school district, open-enrollment charter school, or shared services arrangement must ensure that an entity that the district, school, or shared services arrangement contracts with for services has obtained all criminal history record information as required by Section 22.0834 or 22.08341.

SECTION 9. Section 22.092(d), Education Code, is amended to read as follows:

(d) The agency shall provide equivalent access to the registry maintained under this section to:

(1) private schools;

(2) public schools; [and]

(3) service providers approved by the agency under Section 28.0211(m) for the purpose of vetting individuals to provide accelerated or supplemental instruction services as tutors under that section; and

(4) nonprofit teacher organizations approved by the commissioner for the purpose of participating in the tutoring program established under Section 33.913.

SECTION 10. The heading to Section 22.093, Education Code, is amended to read as follows:

Sec. 22.093. REQUIREMENT TO REPORT EMPLOYEE OR CERTAIN SERVICE PROVIDER MISCONDUCT.

SECTION 11. Sections 22.093(b), (c), (d), (e), (f), (g), (j), and (k), Education Code, are amended to read as follows:

(b) This section applies to a person who:

(1) is employed by a school district, district of innovation, open-enrollment charter school, other charter entity, regional education service center, or shared services arrangement and [who] does not hold a certification or permit issued under Subchapter B, Chapter 21; or

(2) provides accelerated or supplemental instruction services under Section 28.0211 as a tutor on behalf of a service provider with whom a school district, open-enrollment charter school, or shared services arrangement contracts.

(c) In addition to the reporting requirement under Section 261.101, Family Code, the superintendent or director of a school district, district of innovation, open-enrollment charter school, other charter entity, regional education service center, or shared services arrangement shall notify the commissioner if:

(1) a person's [an employee's] employment or contracted services at the school district, district of innovation, charter school, other charter entity, service center, or shared services arrangement were [was] terminated and there is evidence that the person [employee]:

(A) abused or otherwise committed an unlawful act with a student or minor; or

(B) was involved in a romantic relationship with or solicited or engaged in sexual contact with a student or minor; or

(2) the person [employee] resigned or discontinued contracted services and there is evidence that the person [employee] engaged in misconduct described by Subdivision (1).

(d) A superintendent or director of a school district, district of innovation, open-enrollment charter school, other charter entity, regional education service center, or shared services arrangement shall complete an investigation of a person [an employee] that involves evidence that the person [employee] may have engaged in misconduct described by Subsection (c)(1)(A) or (B), despite the person's [employee's] resignation from employment or discontinuance of contracted services before completion of the investigation.

(e) The principal of a school district, district of innovation, open-enrollment charter school, or other charter entity campus must notify the superintendent or director of the school district, district of innovation, charter school, or other charter entity not later than the seventh business day after the date of a person's [an employee's] termination of employment, [or] resignation, or discontinuance of contracted services following an alleged incident of misconduct described by Subsection (c)(1)(A) or (B).

(f) The superintendent or director must notify the commissioner by filing a report with the commissioner not later than the seventh business day after the date the superintendent or director receives a report from a principal under Subsection (e) or knew about a person's [an employee's] termination of employment, [or] resignation, or discontinuance of contracted services following an alleged incident of misconduct described by Subsection (c)(1)(A) or (B). The report must be:

(1) in writing; and

(2) in a form prescribed by the commissioner.

(g) The superintendent or director shall notify the board of trustees or governing body of the school district, district of innovation, open-enrollment charter school, other charter entity, regional education service center, or shared services arrangement and the person [employee] of the filing of the report required by Subsection (f).

(j) The name of a student or minor who is the victim of abuse or unlawful conduct by a person [an employee] must be included in a report filed under this section, but the name of the student or minor is not public information under Chapter 552, Government Code.

(k) A superintendent or director required to file a report under Subsection (f) commits an offense if the superintendent or director fails to file the report by the date required by that subsection with intent to conceal a person's [an employee's] criminal record or alleged incident of misconduct. A principal required to notify a superintendent or director about a person's [an employee's] alleged incident of misconduct under Subsection (e) commits an offense if the principal fails to provide the notice by the date required by that subsection with intent to conceal a person's [an employee's] alleged incident of misconduct. An offense under this subsection is a state jail felony.

SECTION 12. The heading to Section 28.0211, Education Code, is amended to read as follows:

Sec. 28.0211. [ACCELERATED LEARNING COMMITTEE;] ACCELERATED INSTRUCTION; MODIFIED TEACHER ASSIGNMENT.

SECTION 13. Section 28.0211, Education Code, is amended by amending Subsections (a), (a-1), (a-2), (a-3), (a-4), (f), (f-1), (f-2), (f-3), (h), (i), (j), (k), and (n) and adding Subsections (a-7), (a-8), (a-9), (a-10), (b), (i-1), (i-2), (m), and (q) to read as follows:

(a) [A school district shall establish an accelerated learning committee described by Subsection (c) for each student who does not perform satisfactorily on:

[(1) the third grade mathematics or reading assessment instrument under Section 39.023;

[(2) the fifth grade mathematics or reading assessment instrument under Section 39.023; or

[(3) the eighth grade mathematics or reading assessment instrument under Section 39.023.

[(a-1)] Each time a student fails to perform satisfactorily on an assessment instrument administered under Section 39.023(a) or (l) in the third, fourth, fifth, sixth, seventh, or eighth grade or on an end-of-course assessment instrument administered under Section 39.023(c), the school district in which the student attends school shall provide to the student accelerated instruction in the applicable subject area during the subsequent summer or school year.

(a-1) Subject to Subsection (a-7), each time a student fails to perform satisfactorily on an assessment instrument specified under Subsection (a) that is a mathematics or reading assessment instrument or the English I, English II, or Algebra I end-of-course assessment instrument, the school district in which the student attends school shall [and] either:

(1) allow the student to be assigned a classroom teacher who is certified as a master, exemplary, or recognized teacher under Section 21.3521 for the subsequent school year in the applicable subject area; or

(2) provide the student supplemental instruction under Subsection (a-4).

(a-2) Accelerated instruction provided during the following school year under Subsection (a) [(a-1)] may require participation of the student before or after normal school hours.

(a-3) In providing accelerated instruction under Subsection (a) [(a-1)], a district may not remove a student, except under circumstances for which a student enrolled in the same grade level who is not receiving accelerated instruction would be removed, from:

(1) instruction in the foundation curriculum and enrichment curriculum adopted under Section 28.002 for the grade level in which the student is enrolled; or

(2) recess or other physical activity that is available to other students enrolled in the same grade level.

(a-4) If a district receives funding under Section 29.0881 or 48.104, the Coronavirus Response and Relief Supplemental Appropriations Act, 2021 (Div. M, Pub. L. No. 116-260), or the American Rescue Plan Act of 2021 (Pub. L. No. 117-2), then supplemental instruction provided by a school district under Subsection (a-1)(2) must:

(1) include targeted instruction in the essential knowledge and skills for the applicable grade levels and subject area;

(2) be provided in addition to instruction normally provided to students in the grade level in which the student is enrolled;

(3) be provided [for no less than 30 total hours] during the subsequent summer or school year:

(A) to each student for no less than 15 hours;

(B) for an average of no less than 30 hours per student for all students receiving supplemental instruction; and

(C) [,] unless the instruction is provided to a student fully during summer, [include instruction] no less than once per week during the school year, except as otherwise provided by commissioner rule to account for school holidays or shortened school weeks;

(4) be designed to assist the student in achieving satisfactory performance in the applicable grade level and subject area;

(5) include effective instructional materials designed for supplemental instruction;

(6) be provided to a student individually or in a group of no more than four [three] students, unless the parent or guardian of each student in the group authorizes a larger group;

(7) be provided by a person with training in the applicable instructional materials for the supplemental instruction and under the oversight of the school district; and

(8) to the extent possible, be provided by one person for the entirety of the student's supplemental instruction period.

(a-7) A school district is not required to provide supplemental instruction under Subsection (a-1)(2) to a student who is retained at a grade level for the school year in which that provision would otherwise apply.

(a-8) A parent or guardian of a student to whom supplemental instruction will be provided under Subsection (a-1)(2) and who either was administered and failed to perform satisfactorily on an assessment instrument described by Subsection (a) or was administered a beginning-of-year assessment instrument aligned with the essential knowledge and skills for the applicable subject area may elect to reduce or remove a requirement for that instruction under Subsection (a-4) by submitting a written request to the school district. A school district may not encourage or direct a parent or guardian to make an election under this subsection that would allow the district to not provide supplemental instruction to the student.

(a-9) The agency shall approve an automated or computerized method for providing supplemental instruction under Subsection (a-1)(2) that may be used in lieu of some or all of the individual or group instruction required under Subsection (a-4)(6), as appropriate for the applicable grade level and subject area and a student's academic deficiency. The agency may approve a method under this subsection only if evidence indicates that the method is as effective as or more effective than the individual or group instruction required under Subsection (a-4)(6) and the method provides individualized and immediate tutoring support to students as necessary. The commissioner shall adopt rules regarding when a method approved under this subsection may be used and the requirements under Subsection (a-4) for which the method may be substituted.

(a-10) A school district that is required to provide to a student accelerated instruction under Subsection (a) or supplemental instruction under Subsection (a-1)(2) is not required to provide additional instruction under either subsection to the student based on the student's failure to perform satisfactorily on an assessment instrument administered as an optional assessment in the same subject area in which the district is required to provide the student the accelerated or supplemental instruction.

(b) For each student who does not perform satisfactorily on an assessment instrument described by Subsection (a-1) for two or more consecutive school years, the school district the student attends shall develop an accelerated education plan as described by Subsection (f).

(f) Not [An accelerated learning committee described by Subsection (c) shall, not] later than the start of the subsequent school year, a school district shall develop an accelerated education [educational] plan for each [the] student to whom Subsection (b) applies that provides the necessary accelerated instruction to enable the student to perform at the appropriate grade or course level by the conclusion of the school year. The plan:

(1) must:

(A) identify the reason the student did not perform satisfactorily on the applicable assessment instrument described by Subsection (a-1); and

(B) notwithstanding Subsections (a-4)(3)(A) and (B), require the student to be provided with no less than 30 hours, or a greater number of hours if appropriate, of supplemental instruction under Subsection (a-4) for each consecutive school year in which the student does not perform satisfactorily on the assessment instrument in the applicable subject area described by Subsection (a-1); and

(2) may require that, as appropriate to ensure the student performs satisfactorily on the assessment instrument in the applicable subject area described by Subsection (a-1) at the next administration of the assessment instrument:

(A) notwithstanding Subsection (a-4)(6), the student be provided supplemental instruction under Subsection (a-4) individually or in a group of fewer than four students;

(B) the district expand the times in which supplemental instruction under Subsection (a-4) is available to the student;

(C) the student be assigned for the school year to a specific teacher who is better able to provide accelerated instruction; and

(D) the district provide any necessary additional resources to the student.

(f-1) The accelerated education [educational] plan under Subsection (f) must be documented in writing, and a copy must be provided to the student's parent or guardian.

(f-2) During the school year, the student shall be monitored to ensure that the student is progressing in accordance with the accelerated education plan developed under Subsection (f). The district shall administer to the student the assessment instrument for the grade level in which the student is placed at the time the district regularly administers the assessment instruments for that school year.

(f-3) The board of trustees of each school district shall adopt a policy consistent with the grievance procedure adopted under Section 26.011 to allow a parent to contest the content or implementation of an accelerated education [educational] plan developed under Subsection (f).

(h) In each instance under this section in which a school district is specifically required to provide notice or a written copy to a parent or guardian of a student, the district shall make a good faith effort to ensure that such notice or copy is provided either in person or by regular mail or e-mail and that the notice or copy is clear and easy to understand and is written in English or the parent or guardian's native language.

(i) The admission, review, and dismissal committee of a student who participates in a district's special education program under Subchapter A, Chapter 29, and who does not perform satisfactorily on an assessment instrument specified under Subsection (a) [and administered under Section 39.023(a) or (b)] must [meet to] determine the manner in which the student will participate in an accelerated instruction program under this section. For a student for whom the committee determines participation in the required model for supplemental instruction under Subsection (a-4) is not appropriate, the committee must review the student's individualized education plan and adjust the plan as appropriate to target the areas in which the student did not perform satisfactorily on the assessment instrument.

(i-1) If a student who attends school in a homebound or other off-campus instructional arrangement is unable to participate in an accelerated instruction program required under this section due to the nature of the student's circumstance, the student's admission, review, and dismissal committee or committee established under Section 504, Rehabilitation Act of 1973 (29 U.S.C. Section 794), as applicable, may determine that the student may be provided the accelerated instruction when the student attends school in an on-campus instructional setting. If the student's circumstance prevents the student from attending school in an on-campus instructional setting for the school year during which the accelerated instruction is required to be provided to the student, the school district is not required to provide the accelerated instruction to the student for that school year.

(i-2) The admission, review, and dismissal committee of a student who participates in a district's special education program under Subchapter A, Chapter 29, and for whom an accelerated education plan is required under Subsection (b) shall develop the accelerated education plan for the student and must determine the manner in which the student will participate in an accelerated instruction program under this section. To the extent consistent with federal law, the accelerated education plan may not be considered to be part of the student's individualized education program and is not subject to the requirements of Section 29.005 or 20 U.S.C. Section 1414(d) relating to the development of an individualized education program. A parent or guardian of a student for whom an accelerated education plan is developed under this subsection may contest the content or implementation of the plan only through the grievance procedure adopted under Subsection (f-3).

(j) A school district or open-enrollment charter school shall provide students required to attend accelerated programs under this section with transportation to those programs if the programs occur outside of regular school hours, unless the district or school does not operate, or contract or agree with another entity to operate, a transportation system.

(k) The commissioner may adopt rules as necessary to implement this section, including rules for required reporting necessary to support student transfers.

(m) The agency shall establish and maintain a list of service providers approved by the agency to provide accelerated or supplemental instruction services under this section. Section 44.031(a) does not apply to a contract entered into by a school district with an approved service provider for accelerated or supplemental instruction services under this section.

(n) Except as requested under Subsection (a-5) or provided by Subsection (n-1), a student for whom an accelerated education plan must be developed [who fails to perform satisfactorily on an assessment instrument specified] under Subsection (b) [(a) and is promoted to the next grade level] must be assigned, in each [the subsequent] school year and [in each] subject covered by the accelerated education plan, [in which the student failed to perform satisfactorily on an assessment instrument specified under Subsection (a)] to an appropriately certified teacher who meets all state and federal qualifications to teach that subject and grade.

(q) The commissioner may waive the requirements under this section for a school year for a school district in which at least 60 percent of the district's students to whom accelerated instruction was required to be provided under Subsection (a) during the school year immediately before the preceding school year performed satisfactorily in the preceding school year on the assessment instrument described by Subsection (a) in each subject area in which the district was required to provide accelerated instruction. Not later than the beginning of each school year, the commissioner shall publish a list of school districts that qualify for a waiver under this subsection.

SECTION 14. Section 29.0881(e), Education Code, is amended to read as follows:

(e) A school district or open-enrollment charter school that receives grant funds under this section may use the funds to:

(1) financially support or train or otherwise prepare educators and other staff;

(2) pay for agreements with other entities to provide prekindergarten services; or

(3) pay for accelerated instruction provided under Section 28.0211 [or 28.0217].

SECTION 15. Section 39.025(b-1), Education Code, is amended to read as follows:

(b-1) A school district shall provide each student who fails to perform satisfactorily as determined by the commissioner under Section 39.0241(a) on an end-of-course assessment instrument with accelerated instruction under Section 28.0211 [28.0217] in the subject assessed by the assessment instrument.

SECTION 16. Section 39.235(b), Education Code, is amended to read as follows:

(b) Before awarding a grant under this section, the commissioner may require a campus or school district to:

(1) obtain local matching funds; or

(2) meet other conditions, including developing a personal graduation plan under Section [28.0212 or] 28.02121[, as applicable,] for each student enrolled at the campus or in a district [middle, junior high, or] high school.

SECTION 17. Section 411.0901(a), Government Code, is amended to read as follows:

(a) The Texas Education Agency is entitled to obtain criminal history record information maintained by the department about a person who:

(1) is employed or is an applicant for employment by a school district or open-enrollment charter school;

(2) is employed or is an applicant for employment by a shared services arrangement, if the employee's or applicant's duties are or will be performed on school property or at another location where students are regularly present; [or]

(3) is employed or is an applicant for employment by an entity that contracts with a school district, open-enrollment charter school, or shared services arrangement if:

(A) the employee or applicant has or will have continuing duties relating to the contracted services; and

(B) the employee or applicant has or will have direct contact with students; or

(4) provides accelerated or supplemental instruction services under Section 28.0211 as a tutor on behalf of a service provider.

SECTION 18. Section 411.097(a), Government Code, is amended to read as follows:

(a) A school district, charter school, private school, regional education service center, commercial transportation company, or education shared services arrangement, or an entity that contracts to provide services to a school district, charter school, or shared services arrangement, is entitled to obtain from the department criminal history record information maintained by the department that the district, school, service center, shared services arrangement, or entity is required or authorized to obtain under Subchapter C, Chapter 22, Education Code, that relates to a person who [is]:

(1) is an applicant for employment by the district, school, service center, or shared services arrangement;

(2) is an employee of or an applicant for employment with a public or commercial transportation company that contracts with the district, school, service center, or shared services arrangement to provide transportation services if the employee drives or the applicant will drive a bus in which students are transported or is employed or is seeking employment as a bus monitor or bus aide on a bus in which students are transported; [or]

(3) is an employee of or applicant for employment by an entity that contracts to provide services to a school district, charter school, or shared services arrangement as provided by Section 22.0834 or 22.08341, Education Code; or

(4) provides accelerated or supplemental instruction services under Section 28.0211 as a tutor on behalf of a service provider with whom the district, school, service center, or shared services arrangement contracts.

SECTION 19. The following provisions of the Education Code are repealed:

(1) Sections 28.0211(c), (f-4), (f-5), (o), and (p); and

(2) Sections 28.0212, 28.0213, and 28.0217.

SECTION 20. The changes in law made by this Act to Section 28.0211, Education Code, apply beginning with assessment instruments administered during the 2023 spring semester.

SECTION 21. The repeal by this Act of Sections 28.0212, 28.0213, and 28.0217, Education Code, applies beginning with the 2023-2024 school year.

SECTION 22. To the extent of any conflict, this Act prevails over another Act of the 88th Legislature, Regular Session, 2023, relating to nonsubstantive additions to and corrections in enacted codes.

SECTION 23. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2023.