(a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.
  (1) FERPA means the Family Educational Rights and Privacy Act, 42 U.S.C. §1232g, including regulations and informal written guidance issued by the United States Department of Education and any amendments or supplementation thereof.
  (2) Cooperating Agencies means the Texas Education Agency (TEA), the Texas Higher Education Coordinating Board (CB), and the Texas Workforce Commission (TWC).
  (3) P-20/Workforce Data Repository refers to the collection of data from each Cooperating Agency. The cooperating agencies shall execute agreements for the sharing of data for the purpose of facilitating the studies or evaluations at Education Research Centers (ERCs). In accordance with the agreements, each cooperating agency shall make available all appropriate data, including to the extent possible data collected by the cooperating agency for at least the preceding 20 years. A cooperating agency shall periodically update the data as additional data is collected, but not less than once each year. The repository shall be operated by the CB.
  (4) The CB may enter into data agreements for data required for approved studies or evaluations with the state education agency of another state, giving priority to the agencies of those states that send the highest number of postsecondary education students to this state or that receive the highest number of postsecondary education students from this state. An agreement under this paragraph must be reviewed by the United States Department of Education and must require the agency of another state to comply with all data security measures required of a center. The CB may also enter into data agreements with local agencies or organizations that provide education services to students in this state or that collect data that is relevant to current or former students of public schools in this state and is useful to the conduct of research that may benefit education in this state.
  (5) Confidential information as applied to data in the P-20/Workforce Data Repository provided to an ERC includes all individual-level data, including any data cells small enough to allow identification of an individual. All data cells containing between one and four individuals, inclusive, are confidential.
    (A) Small data cells will be considered any cell containing between one and four individuals inclusive. Information may not be disclosed where small data cells can be determined through subtraction or other simple mathematical manipulations or subsequent cross-tabulation of the same data with other variables. Institutions may use any of the common methods for masking including:
      (i) hiding the small cell and the next larger cell on the row and column so the size of the small cell cannot be determined; or
      (ii) hiding the small cell and displaying the total for both the row and column as a range of at least ten; or
      (iii) any methodology approved by the cooperating agencies.
    (B) References to the CB shall also be deemed to include the Commissioner of Higher Education. References to the TEA shall also be deemed to include the Commissioner of Education. References to the TWC shall also be deemed to include the Workforce Commissioners.
(b) Purpose.
  (1) ERCs shall be established by the CB. An ERC may only be established at a sponsoring public institution of higher education in Texas but may be awarded to a consortium of such institutions. An ERC must be physically located within Texas and must retain all data at that location except for secure off-site data back-up in accordance with written procedures approved by the Advisory Board. Individual level data from the ERC P-20/Workforce Data Repository may not be provided to a researcher except in the following ways:
    (A) individual level data may be provided to a researcher at a Research Center or the CB or a public institution of higher education located in Texas that is an acknowledged consortium member of the ERC; or
    (B) individual level data may be accessed by approved researchers via secure, restricted, VPN remote access provided all other provisions of this chapter are met and established policies are followed regarding additional controls.
  (2) The CB is responsible for general oversight and technical assistance of ERCs, except as otherwise provided in this chapter. All policy decisions shall be approved by the CB.
  (3) Sponsoring institutions of higher education are responsible for all equipment, salaries and other operating costs of an ERC, including documented staff time and equipment at TEA and the CB necessary to prepare and maintain data for the ERCs, as well as reasonable reimbursable expenses of the Advisory Board. Costs will include actual documented expenses up to two full-time equivalent employees at TEA and CB along with associated data storage costs as set by DIR for the data center consolidation rates unless otherwise agreed to by the CB and the ERCs.
  (4) The ERCs may provide researchers access to shared data only through secure methods and require each researcher to execute an agreement regarding compliance with the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. §1232g) and rules and regulations adopted under that Act. Each ERC shall adopt rules or policies to protect the confidentiality of information used or stored at the center in accordance with applicable state and federal law, including rules or policies establishing procedures to ensure that confidential information is not duplicated or removed from an Education Research Center or from a remote access interface in an unauthorized manner.
(c) Advisory Board.
  (1) The Commissioner of Higher Education shall create and maintain an advisory board to review and approve, as it deems appropriate, research involving access to confidential information and to adopt policies and rules governing the protection of such information in ERC operations. The Advisory Board is considered to be a governmental body for purposes of Chapters 551 and 552 of the Texas Government Code.
  (2) Membership of the Advisory Board shall include, at a minimum:
    (A) the Commissioner of Higher Education, as Chair;
    (B) a representative of TEA, designated by the Commissioner of Education;
    (C) a representative of the CB, designated by the Commissioner of Higher Education;
    (D) a representative of the TWC, designated by the Commission;
    (E) the Director or Director's designee of each ERC; and
    (F) a representative of preschool, elementary, or secondary education, designated by the Commissioner of Higher Education.
    (G) Additional member(s) may be appointed within the discretion of and as determined by the Commissioner of Higher Education.
  (3) The Advisory Board will review each study or evaluation proposal. A study or evaluation proposal must be approved in advance by majority vote of the Advisory Board before it can be conducted at an ERC. The Advisory Board's review of a proposal must include the following factors:
    (A) the potential to benefit education in Texas;
    (B) require each ERC Director or designee to approve of the research design and methods to be used; and
    (C) the extent to which the required data is not readily available from another source.
  (4) The Advisory Board will decide if a submitted proposal falls under the "studies" exception or the "audit/evaluation" exception described in FERPA and its implementing regulations. Should a proposed study or evaluation not be permitted by FERPA or its implementing regulations, the proposal will be denied.
  (5) Each ERC will enter into a written agreement with each researcher mandating the researcher's compliance with FERPA.
  (6) The Advisory Board shall meet at the call of the Chair at least quarterly each year and such meetings will be open to the public.
  (7) Meetings may be conducted by electronic means, including telephonic, video conference call, Internet, or any combination of those means.
  (8) The Advisory Board may create committees and subcommittees as it deems necessary or appropriate.
(d) Operation.
  (1) An ERC may operate only under written authorization by the CB. Status as an ERC may not be assigned, delegated or transferred to any other entity.
  (2) An ERC shall be led by a managing Director who is a professional employee of the sponsoring institution of higher education (IHE). The managing Director shall report directly to the chief operating officer of the sponsoring IHE unless a different reporting structure is approved by the CB.
Cont'd...