19 Tex. Admin. Code § 3.19 - Compliance
(a) The chief
executive officer of each postsecondary educational institution shall annually
certify in writing to the Coordinating Board, not later than October 31 of each
year, that the institution is in substantial compliance with Texas Education
Code, Chapter 51, Subchapter E-2. The Coordinating Board shall make available
to institutions a required template for the certification which satisfies the
requirements of this section.
(b)
In addition to annually reviewing the reporting under Texas Education Code
§
51.258 and §
3.19, the Coordinating Board shall conduct risk-based compliance monitoring of
Texas Education Code, Chapter 51, Subchapters E-2 and E-3. The Coordinating
Board will determine the basis for reviews based on risk factors such as time
since last review, stakeholder feedback, prior findings or complaints, and
other factors. The Coordinating Board shall make available to the institutions
a report template which satisfies the requirements of this section.
(c) If the Coordinating Board determines that
a postsecondary educational institution is not in substantial compliance with
Texas Education Code, Chapter 51, Subchapters E-2, effective January 1, 2020,
or Subchapter E-3, effective August 1, 2020, the Coordinating Board may assess
an administrative penalty against the institution in an amount not to exceed $2
million annually. Compliance errors committed by an institution or system that
are in substantial compliance with Subchapters E-2 and E-3 will not result in a
penalty. The Coordinating Board will not find an institution is out of
substantial compliance with the provisions in Subchapter E-2 and Subchapter E-3
based on a determination that the Coordinating Board would have taken different
action after an independent evaluation of evidence.
(d) In evaluating whether an institution or
system is in substantial compliance in accordance with §
3.3 of this title (relating to
Definitions), the Coordinating Board will determine the institution's or
system's good faith effort by evaluating the following factors:
(1) The nature and seriousness of the
compliance error;
(2) The extent to
which the institution complied with the statutory requirements and to what
extent it did not;
(3) The number
of any institutional compliance errors;
(4) Whether the institution had actual notice
of the error;
(5) Whether the
institution made any effort to rectify any compliance errors or agrees to
rectify any violations going forward;
(6) The extent to which the institution has
relevant policies and/or practices;
(7) The institution' s intent;
(8) Severity of the error' s
effect;
(9) Any previous compliance
errors of a similar kind and the time lapse since those error(s);
(10) Institutional efforts to prevent
compliance errors, including the extent to which the institution provided
training to employees and/or acted after learning about the error;
(11) The explanation for the cause of the
compliance error, including a good-faith mistake; a differing, reasonable
interpretation of the law; a conflict between two provisions, or a conflict
with another legal or governmental requirement (such as Title IX regulations or
a mandatory report to the National Institutes of Health);
(12) Any prevention and/or response efforts
of the institution, made in good faith, to address a possible compliance
error;
(13) The degree of
cooperation of the institution with the Coordinating Board in remedying a
potential compliance error; and
(14) Any other fact or circumstance as
justice may require.
(e)
A postsecondary educational Institution's failure to timely and accurately file
the certification of substantial compliance with Texas Education Code §
51.258 and Subsection
(a) not later than October 31 of each year shall result in a penalty of $2,000
per day of violation.
(1) A postsecondary
educational institution may cure a violation under this subsection by filing
its report not later than November 30 of the year the report was due.
(2) If the postsecondary educational
institution cures the violation as provided in this subsection, the
Coordinating Board shall not assess a penalty.
(3) If the postsecondary educational
Institution fails to cure the violation as provided in this subsection, the
Coordinating Board shall assess the full penalty owed under this subsection
beginning on November 1 of the year the report was due.
(4) If a postsecondary educational
institution files a good faith correction to a previously filed certification
of substantial compliance within a reasonable time of discovering an
unintentional error, but not later than February 1 following the due date of
the report, the Coordinating Board shall not assess a penalty.
(f) The Coordinating Board may
assess an administrative penalty, up to a total of $2 million annually, if a
postsecondary educational institution has failed to maintain substantial
compliance with Texas Education Code, Chapter 51, Subchapters E-2 or E-3.
(1) In determining the total penalty to
assess, the Coordinating Board shall consider the number of students at the
institution, the penalty matrix in this section, apply mitigating and
aggravating factors, and any other factor justice may require. Mitigating
factors may result in a reduction of the administrative penalty. Aggravating
factors may result in an increased administrative penalty, up to $2 million
annually.
(2) Penalty Matrix.
Potential annual penalty amounts are shown in Figure 1.
(3)
Mitigating factors may include:
(A) The
inability of the postsecondary educational institution to meet the requirement
of law due to:
(i) a disaster declared under
Texas Government Code, Chapter 418;
(ii) a technology failure rendering
compliance impossible; or
(iii) a
severe medical impairment of a person responsible for compliance with a
requirement under Texas Education Code, Chapter 51, Subchapters E-2 or
E-3.
(B) Evidence that
the postsecondary educational institution properly reported an incident to
another state or federal agency with law enforcement or regulatory
authority;
(C) Any actual notice
from the institution of the compliance error;
(D) Institutional efforts to prevent
compliance errors, including the extent to which the institution provided
training to employees and/or acted after learning about the error;
(E) The explanation for the cause of the
compliance error, including a good-faith mistake; a differing, reasonable
interpretation of the law; a conflict between two provisions, or a conflict
with another legal or governmental requirement (such as Title IX regulations or
a mandatory report to the National Institutes of Health);
(F) The lack of harm to any individual;
and
(G) The extent to which the
institution or system complied with Texas Education Code, Chapter 51,
Subchapters E-2 and E-3.
(4) Aggravating factors shall include:
(A) Harm to an individual caused by, or
directly related to, the postsecondary educational institution's failure to
comply with Chapter 51, Subchapters E-2 and E-3;
(B) Any evidence of a postsecondary
educational institution's failure to act on a prior substantially similar
complaint;
(C) Any evidence of
multiple incidents of similar failures or length of time of failure by the
postsecondary institution;
(D) Any
evidence that the postsecondary educational institution or its chief executive
officer knowingly provided a false certification under Texas Education Code
§
51.258(a);
(E) That the postsecondary educational
institution attempted to conceal or cause others to conceal information
relevant to a determination of violation under Texas Education Code, Chapter
51, Subchapters E-2 and E-3; and
(F) The extent to which the institution or
system failed to comply with Texas Education Code, Chapter 51, Subchapters E-2
and E-3.
(g) If
the Coordinating Board assesses an administrative penalty against a
postsecondary educational institution under subsection (f) of this section, the
Coordinating Board shall provide to the institution written notice of the
Coordinating Board's reason for assessing the penalty.
(h) A postsecondary educational institution
assessed an administrative penalty under Subsection (f) may appeal the penalty
in the manner provided by Chapter 2001, Texas Government Code. The Coordinating
Board shall enter a final decision and order as to any penalty assessed after a
contested case proceeding.
(i) A
postsecondary educational institution may not pay an administrative penalty
assessed under Subsection (f) using state-appropriated or federal
money.
(j) The Coordinating Board
shall deposit an administrative penalty collected under this section to the
credit of the sexual assault program fund established under Section
420.008, Texas
Government Code.
(k) The
Coordinating Board shall annually submit to the governor, the lieutenant
governor, the speaker of the house of representatives, and the standing
legislature committees with primary jurisdiction over legislation concerning
sexual assault at postsecondary educational institutions a report regarding
compliance with this subchapter, including a summary of the postsecondary
education institutions found not to be in substantial compliance as provided by
this section and any penalties assessed under the section during the calendar
year preceding the date of the report.
Notes
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