Tex. Education Code § 28.0211 — TX Code / Code ed / Chapter 28 / Section 28.0211
§ 28.0211. ACCELERATED INSTRUCTION; MODIFIED TEACHER ASSIGNMENT.
Status: repealed

(a) To ensure that each student achieves at least satisfactory performance on each assessment instrument administered under Section 39.023, a school district shall ensure that the district's curricular and instructional systems provide instruction to all students that:

(1) is consistently aligned with the essential knowledge and skills for the applicable subject area and grade level; and

(2) strategically and timely addresses deficiencies in the prerequisite essential knowledge and skills for the applicable subject area and grade level.

(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 an end-of-course assessment instrument administered under Section 39.023(c), other than an assessment instrument developed or adopted based on alternative academic achievement standards, 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 and, subject to Subsections (a-7) and (a-8), 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-1) may require participation of the student before or after normal school hours.

(a-3) In providing accelerated instruction under Subsection (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 during the subsequent summer or school year:

(A) to each student for no less than:

(i) 15 hours; or

(ii) 30 hours for a student whose performance on the applicable assessment instrument was significantly below satisfactory, as defined by commissioner rule; and

(B) unless the instruction is provided to a student fully during summer, 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 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-5) Each school district shall establish a process allowing for the parent or guardian of a student who fails to perform satisfactorily on an assessment instrument specified under Subsection (a-1) to make a request for district consideration that the student be assigned to a particular classroom teacher in the applicable subject area for the subsequent school year, if more than one classroom teacher is available.

(a-6) The commissioner shall provide guidelines to school districts on research-based best practices and effective strategies that a district may use in developing an accelerated instruction program and shall provide resources to districts to assist in the provision of an accelerated instruction program.

(a-7) The requirements under Subsection (a-1)(1) or (2) do not apply to a student who is retained at a grade level for the school year in which those requirements would otherwise apply.

(a-8) A school district may not be required to provide supplemental instruction under Subsection (a-1)(2) to a student in more than two subject areas per school year. If the district would otherwise be required to provide supplemental instruction to a student in more than two subject areas for a school year, the district shall prioritize providing supplemental instruction to the student in mathematics and reading language arts, or Algebra I or English I, as applicable, for that school year.

(a-9) 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 specified under Subsection (a-1) or was administered a beginning-of-year assessment instrument aligned with the essential knowledge and skills for the applicable subject area, including a student to whom Subsection (b) applies, may elect to modify or remove a requirement for that instruction under Subsection (a-4) by submitting a written request to an administrator of the campus at which the student is enrolled. 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:

(1) not provide supplemental instruction to the student; or

(2) provide supplemental instruction in a group larger than authorized under Subsection (a-4)(6).

(a-10) A school district is not required to provide accelerated instruction under Subsection (a-1) to a student who, instead of being administered an assessment instrument specified under Subsection (a-1), was administered a substitute assessment instrument in accordance with other law or agency rule authorizing the use of the substitute assessment instrument for purposes of satisfying the requirements concerning the applicable assessment instrument under Subsection (a-1).

(a-11) The agency shall approve one or more products that use an automated, computerized, or other augmented 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 product under this subsection only if evidence indicates that the product is more effective than the individual or group instruction required under Subsection (a-4)(6). The commissioner shall adopt rules regarding when a product approved under this subsection may be used and the requirements under Subsection (a-4) for which the product may be substituted.

(a-12) For the purpose of providing accelerated instruction or supplemental instruction under this section, a school district may use a service provider that is not on a list of service providers approved by the agency if the district can demonstrate to the commissioner that use of the service provider results in measurable improvement in student outcomes.

(a-13) A school district that is required to provide to a student accelerated instruction under Subsection (a-1) or supplemental instruction under Subsection (a-1)(2) is not required to provide additional instruction under either provision 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.

(a-14) A school district shall provide to the parent or guardian of a student who fails to perform satisfactorily on an assessment instrument specified under Subsection (a-1) notice that the student is not performing on grade level in the applicable subject area. Notwithstanding Subsection (h), the district must provide the notice at a parent-teacher conference or, if the district is unable to provide the notice at a parent-teacher conference, by another means. The agency shall develop and provide to school districts a model notice in plain language for use under this section.

(a-15) The agency shall approve high-impact tutoring providers for purposes of providing accelerated or supplemental instruction under this section. In approving a provider, the agency shall consider the requirements under Subsection (a-4).

(a-16) In contracting with a high-impact tutoring provider approved by the agency under Subsection (a-15), a school district may use an outcomes-based contract. The agency may approve an instrument necessary to collect, manage, and analyze student outcomes at scale for those providers.

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

(b-1) A school district shall make a good faith attempt to provide to the parent or guardian of a student to whom Subsection (b) applies a parent-teacher conference with the student's primary teacher at the start and end of the subsequent school year. At the conference, the district shall provide the student's parent or guardian with:

(1) the notice required under Subsection (a-14); and

(2) an explanation of:

(A) the accelerated instruction to which the student is entitled under this section; and

(B) the accelerated education plan that must be developed for the student under Subsection (f) and the manner in which the parent or guardian may participate in developing the plan.

(c) Repealed by Acts 2023, 88th Leg., R.S., Ch. 404 (H.B. 1416), Sec. 5(1), eff. June 9, 2023.

(d) Repealed by Acts 2021, 87th Leg., R.S., Ch. 910 (H.B. 4545), Sec. 10(1), eff. June 16, 2021.

(e) Repealed by Acts 2021, 87th Leg., R.S., Ch. 910 (H.B. 4545), Sec. 10(1), eff. June 16, 2021.

(f) Not later than the start of the subsequent school year, a school district shall develop an accelerated education plan for each 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 specified under Subsection (a-1); and

(B) notwithstanding Subsection (a-4)(3)(A), 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 specified under 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 specified under Subsection (a-1) at the next administration of the assessment instrument:

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

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

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

(f-1) The accelerated education 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).

(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 plan developed under Subsection (f).

(f-4) Repealed by Acts 2023, 88th Leg., R.S., Ch. 404 (H.B. 1416), Sec. 5(1), eff. June 9, 2023.

(f-5) Repealed by Acts 2023, 88th Leg., R.S., Ch. 404 (H.B. 1416), Sec. 5(1), eff. June 9, 2023.

(g) This section does not preclude the retention at a grade level, in accordance with state law or school district policy, of a student who performs satisfactorily on an assessment instrument specified under Subsection (a-1).

(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 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-1) shall, at the student's next annual review meeting, review the student's participation and progress in, as applicable, accelerated instruction provided under Subsection (a), supplemental instruction provided under Subsection (a-1)(2), or an accelerated education plan developed under Subsection (f). The student's parent may request, or the district may schedule, an additional committee meeting if a committee member believes that the student's individualized education program needs to be modified based on the requirements under this section. If the district refuses to convene a committee meeting requested by the student's parent under this subsection, the district shall provide the parent with written notice explaining the reason the district refuses to convene the meeting.

(i-1) If a student who attends school in a homebound or other off-campus instructional arrangement, including at a residential treatment campus or state hospital, is unable to participate in an accelerated instruction program required under this section due to the student's condition, the school district may determine that the student be provided the accelerated instruction when the student attends school in an on-campus instructional setting. If the student's condition 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 district is not required to provide the accelerated instruction to the student for that school year.

(i-2) Repealed by Acts 2021, 87th Leg., R.S., Ch. 910 (H.B. 4545), Sec. 10(1), eff. June 16, 2021.

(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.

(l) The agency shall monitor and evaluate the effectiveness of the accelerated instruction required under this section.

(l-1) The commissioner may adopt rules requiring a school district that receives federal funding under Title I of the Elementary and Secondary Education Act of 1965 (20 U.S.C. Section 6301 et seq.) to use that funding to provide supplemental educational services under 20 U.S.C. Section 6316 in conjunction with the accelerated instruction provided under this section, provided that the rules may not conflict with federal law governing the use of that funding.

(m) Repealed by Acts 2021, 87th Leg., R.S., Ch. 910 (H.B. 4545), Sec. 10(1), eff. June 16, 2021.

(m-1) Repealed by Acts 2021, 87th Leg., R.S., Ch. 910 (H.B. 4545), Sec. 10(1), eff. June 16, 2021.

(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 under Subsection (b) must be assigned, in each school year and subject covered by the accelerated education plan, to an appropriately certified teacher who meets all state and federal qualifications to teach that subject and grade.

(n-1) In a manner consistent with federal law and notwithstanding any other law, the commissioner may waive the requirement under Subsection (n) regarding the assignment of a student to an appropriately certified classroom teacher on the request of a school district.

(o) This section does not require the administration of a fifth or eighth grade assessment instrument in a subject under Section 39.023(a) to a student enrolled in the fifth or eighth grade, as applicable, if the student:

(1) is enrolled in a course in the subject intended for students above the student's grade level and will be administered an assessment instrument adopted or developed under Section 39.023(a) that aligns with the curriculum for the course in which the student is enrolled; or

(2) is enrolled in a course in the subject for which the student will receive high school academic credit and will be administered an end-of-course assessment instrument adopted or developed under Section 39.023(c) for the course.

(p) Notwithstanding any other provision of this section, a student described by Subsection (o) may not be denied promotion on the basis of failure to perform satisfactorily on an assessment instrument not required to be administered to the student in accordance with that subsection.

(q) The commissioner may waive the requirements under this section regarding accelerated instruction for a school district for each school year in which at least 60 percent of the students who received accelerated instruction during the school year immediately preceding the previous school year, including at least 60 percent of students whose performance on the applicable assessment instrument was significantly below satisfactory, as defined by commissioner rule, performed satisfactorily in the previous school year on the assessment instrument in each subject in which the student previously failed to perform satisfactorily. For purposes of determining whether a school district qualifies for a waiver under this subsection, the commissioner shall:

(1) if a student received accelerated instruction in more than one subject during the applicable school year, consider the student's performance on the assessment instrument in each subject separately from the student's performance on the assessment instrument for each other subject; and

(2) by rule provide that a school district may not qualify for a waiver if students who are receiving special education services or are educationally disadvantaged are overrepresented among the students in the district who received accelerated instruction during the school year immediately preceding the previous school year and did not perform satisfactorily in the previous school year on the assessment instrument in each applicable subject.

(r) Not later than the beginning of each school year, the commissioner shall publish a list of school districts that qualify for a waiver under Subsection (q).