|(a) General provisions. In accordance with the Texas Education Code (TEC), §29.0821, a school district may modify its instructional calendar to provide a flexible year program to meet the educational needs of its students, including providing intensive instructional services. A school district approved by the commissioner of education to implement an Optional Flexible Year Program (OFYP) may reduce the number of instructional days for certain students. (b) Eligibility. A student is eligible to participate in the OFYP if the student meets one or more of the following criteria. (1) The student did not or is not likely to achieve a passing score on an assessment instrument administered under the TEC, §39.023. (2) The student is not eligible for promotion to the next grade level. (c) Program criteria. (1) A school district may reduce the number of instructional days during the regular school year for students who are not eligible for participation in this program to no fewer than 170 days. (2) A school district must provide at least 180 days of instruction to those students who meet the eligibility criteria defined in subsection (b) of this section. (3) In accordance with subsection (d) of this section, a school district may request waivers for no more than five days of staff development or teacher preparation in order to provide additional days of instruction. (4) A school district that provides transportation services must continue to provide these services during the OFYP. (5) A school district that participates in the National School Lunch Program or the National School Breakfast Program must continue to provide these services during the OFYP. (6) A school district may require educational support personnel to provide service as necessary for an OFYP. (7) Each educator employed under a ten-month contract must provide the minimum days of service required under the TEC, §21.401, notwithstanding the reduction in the number of instructional days or in the number of staff development days. (d) Approval process. To implement an OFYP, a school district must request prior approval from the commissioner of education. (1) A school district must submit a letter to the Texas Education Agency division responsible for state funding describing the proposed modifications to the instructional calendar, including a description of the OFYP that will be provided under the TEC, §29.0821. The letter must indicate the date on which the board of trustees approved the modified instructional calendar. If the district is requesting a waiver of staff development days or teacher preparation days, the letter must also indicate that the request to waive staff development days or teacher preparation days has been approved by the campus site-based decision-making committee. (2) Approval to modify the number of instructional days is limited to one year. Extensions may be approved by submitting subsequent applications. (3) No approval will be granted that reduces the number of instructional days to fewer than 170 days. (4) The commissioner may require a school district to provide an evaluation that demonstrates the success of its approach as a condition of approval. (e) Funding. For a school district that operates an OFYP, the calculation of average daily attendance is modified to reflect the approved instructional calendar. For students placed on a reduced instructional calendar, the reported number of days of instruction used as the divisor in calculating average daily attendance must reflect the reduced number of days (no fewer than 170). For eligible students served through the OFYP, the reported number of days of instruction used as the divisor in calculating average daily attendance must reflect the scheduled number of days (180 or more) in which instruction took place.