TITLE 19. EDUCATION

PART 2. TEXAS EDUCATION AGENCY

CHAPTER 61. SCHOOL DISTRICTS

SUBCHAPTER AA. COMMISSIONER'S RULES ON SCHOOL FINANCE

19 TAC §61.1011

The Texas Education Agency (TEA) adopts an amendment to §61.1011, concerning school finance. The amendment is adopted without changes to the proposed text as published in the October 21, 2016, issue of the Texas Register (41 TexReg 8252). The adopted amendment enables a school district receiving a reduced local share of Foundation School Program funding as a result of being combined with an academically unacceptable school district to receive the entire benefit of the adjustment rather than having it reduced by the Additional State Aid for Tax Reduction (ASATR) calculation.

REASONED JUSTIFICATION. The Texas Education Code (TEC), §42.2516, allows school districts to be held harmless for the loss in local tax collections for maintenance and operations caused by the compression of adopted tax rates by one third. Section 61.1011, adopted under the TEC, §42.2516, details the calculation of the hold harmless levels for each district, known as revenue targets, as well as how to determine whether hold harmless money is needed or if the state and local revenue received through formula funding is sufficient so that hold harmless money is not needed. Since the annexation of an academically unacceptable school district under the TEC, §13.054, rarely occurs, neither the TEC, §42.2516, nor 19 TAC §61.1011 addresses the impact on the ASATR calculation of the state assistance provided under the TEC, §13.054(f), which requires the commissioner to annually adjust the local fund assignment for a district to which territory of an academically unacceptable district is annexed.

Because of the recent annexation of an academically unacceptable school district, the TEA has determined that §61.1011 should be modified to ensure the extra state aid under the TEC, §13.054(f), is not reduced by a reduction to the ASATR calculation. The adopted amendment adds language to subsection (b)(5)(C) to describe the calculation adjustment for districts entitled to the state assistance provided under the TEC, §13.054(f).

SUMMARY OF COMMENTS AND AGENCY RESPONSES. The public comment period on the proposal began October 21, 2016, and ended November 21, 2016. No public comments were received.

STATUTORY AUTHORITY. The amendment is adopted under the Texas Education Code (TEC), §42.2516, which provides for hold harmless payments for school districts for the loss of local tax collections due to the tax rate compression instituted in 2006. TEC, §42.2516(g), authorizes the commissioner to adopt rules necessary to implement additional state aid for tax reduction.

CROSS REFERENCE TO STATUTE. The amendment implements the Texas Education Code, §42.2516.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 27, 2017.

TRD-201700771

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Effective date: March 19, 2017

Proposal publication date: October 21, 2016

For further information, please call: (512) 475-1497


CHAPTER 101. ASSESSMENT

SUBCHAPTER CC. COMMISSIONER'S RULES CONCERNING IMPLEMENTATION OF THE ACADEMIC CONTENT AREAS TESTING PROGRAM

DIVISION 3. SECURITY OF ASSESSMENTS, REQUIRED TEST ADMINISTRATION PROCEDURES AND TRAINING ACTIVITIES

19 TAC §101.3031

(Editor's note: In accordance with Texas Government Code, §2002.014, which permits the omission of material which is "cumbersome, expensive, or otherwise inexpedient," the figure in 19 TAC §101.3031 is not included in the print version of the Texas Register. The figure is available in the on-line version of the March 10, 2017, issue of the Texas Register.)

The Texas Education Agency (TEA) adopts an amendment to §101.3031, concerning student assessment. The amendment is adopted without changes to the proposed text as published in the December 30, 2016 issue of the Texas Register (41 TexReg 10505) and will not be republished. The amendment adopts the 2017 Test Security Supplement as part of the Texas Administrative Code. The earlier versions of the security supplement will remain in effect with respect to the year for which they were developed.

REASONED JUSTIFICATION. Through the adoption of 19 TAC §101.3031, effective March 26, 2012, the commissioner exercised rulemaking authority relating to the administration of assessment instruments adopted or developed under the TEC, §39.023, including procedures designed to ensure the security of the assessment instruments. The rule addresses purpose, administrative procedures, training activities, and records retention. As part of the administrative procedures, school districts and charter schools are required to comply with test security and confidentiality requirements delineated annually in test administration materials.

The adopted amendment to 19 TAC §101.3031, concerning Required Test Administration Procedures and Training Activities to Ensure Validity, Reliability, and Security of Assessments, updates the rule by adopting the 2017 Test Security Supplement as Figure: 19 TAC §101.3031(b)(2). The 2017 Test Security Supplement describes the security procedures and guidelines that school districts and charter schools shall be required to follow to ensure the security and validity of the Texas assessment system.

Within the 2017 Test Security Supplement is one substantive change for the administration of the 2017 assessments. The change relates to the requirement for testing personnel to cover or remove instructional displays during testing. To help clarify existing policy, the 2017 Test Security Supplement specifies that prior to the administration, test administrators should walk through each testing location to verify that the environment is appropriate for testing and no instructional displays are visible (e.g., process and cycle diagrams, definitions or examples of literary terms, test-taking strategies, how to write an essay, anchor charts, maps, word walls, timelines, posters identifying historical figures, etc.). On page 12, the supplement explains that campus coordinators need to be trained to examine the test environment before each test.

The security supplements adopted prior to the 2017 year will remain in effect with respect to a given year.

SUMMARY OF COMMENTS AND AGENCY RESPONSES. The public comment period on the proposal began December 30, 2016, and ended January 30, 2017. Following is a summary of the public comment received and the corresponding agency response.

Comment: An individual commented that the TEA should not score an assessment a student refuses to take. The individual also requested that greater clarity be given about whether students are required to remain in the testing room for four hours if the students immediately turn in their assessment. The individual stated that the TEA should clarify that these students do not have to remain in the room. Finally, the commenter also requested that the TEA should consider adding language that instructs teachers not to ask that students continue working on his or her assessment once submitted.

Agency Response: Regarding the scoring of an assessment that a student refused to take, the agency disagrees. TEC, §26.010, prohibits opting out of an assessment, prohibits a student from being removed from a class or school by a parent in order to avoid a test, and prohibits a student from being exempted from satisfying grade-level or graduation requirements in a manner acceptable to both the school district and the agency. Districts are required to provide all eligible students who are in attendance during the administration of an assessment with an opportunity to participate in the test. Students are provided directions at the beginning of each test and periodically throughout the administration to record their answers on the answer document or in the online form for the corresponding test within the time period allowed for the administration of the test. As such, students who are in attendance on the day of testing and who choose not to participate or refuse to mark their answers on the answer document or in the online form will have their tests submitted for scoring as is.

As to whether the TEA should consider adding language that instructs teachers not to ask that students continue working on his or her assessment once it is submitted, the agency disagrees. As stated in the previous paragraph, test administrators are trained to provide students with directions at the beginning of each test and periodically throughout the administration to record their answers on the answer document or in the online form for the corresponding test within the time period allowed for the administration of the test. Consistent with the periodic reminders, test personnel have both the latitude and responsibility to remind students to complete the test and record their answers on the answer document for proper scoring.

Regarding the need for greater clarity about whether students are required to remain in the testing room for the duration of the assessment, the agency disagrees. As the agency states in the adopted Test Security Supplement, once a student has completed and turned in or submitted the test, the student may quietly read a book or be allowed to leave the testing area. Based on communication with Texas districts, this policy was implemented to give each district the flexibility to best determine how to most effectively manage a test administration with the resources available to that district.

STATUTORY AUTHORITY. The amendment is adopted under the Texas Education Code (TEC), §26.010, which prohibits a student from being removed from a class or school by a parent in order to avoid a test and prohibits a student from being exempted from satisfying grade-level or graduation requirements in a manner acceptable to both the school district and the agency; TEC, §39.023(a), which requires school districts to administer the Grades 3-8 state-developed assessments to all eligible students; TEC, §39.025(a), which requires a student to pass each end-of-course assessment listed in TEC, §39.023(c), only for a course in which the student is enrolled and for which an end-of-course assessment is administered in order to receive a Texas diploma; TEC, §39.030(a), which requires school districts to ensure the security of the state's assessment instruments and student answer documents in their preparation and administration; TEC, §39.0301(a)(1), which requires the commissioner to establish procedures for the administration of the state's assessment instruments, including procedures designed to ensure the security of those assessments. Per TEC, §39.0301(a-1), the procedures the commissioner is required to establish must, to the extent possible, minimize disruptions to school operations and classroom environment. Additionally, TEC, §39.0301(a-1), stipulates that school districts must also minimize disruptions to school operations and the classroom environment when implementing the required assessment administration procedures; and TEC, §39.0304, which authorizes the commissioner to adopt rules to require training for school district employees involved in the administration of the state's assessments. This training may include qualifying components to ensure the school district personnel involved in an administration of the state's assessments possess the necessary knowledge and skills required to securely and reliably administer those assessments.

CROSS REFERENCE TO STATUTE. The amendment implements the Texas Education Code, §§26.010; 39.023(a); 39.025(a); 39.030(a); 39.0301; and 39.0304.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 27, 2017.

TRD-201700772

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Effective date: March 19, 2017

Proposal publication date: December 30, 2016

For further information, please call: (512) 475-1497


CHAPTER 103. HEALTH AND SAFETY

SUBCHAPTER DD. COMMISSIONER'S RULES CONCERNING VIDEO SURVEILLANCE OF CERTAIN SPECIAL EDUCATION SETTINGS

19 TAC §103.1301

The Texas Education Agency (TEA) adopts an amendment to §103.1301, concerning video surveillance of certain special education settings. The amendment is adopted with changes to the proposed text as published in the November 25, 2016 issue of the Texas Register (41 TexReg 9225). The adopted amendment updates the rule to be consistent with the plain language in the authorizing statute.

REASONED JUSTIFICATION. In order to promote the safety of students receiving special education and related services in certain self-contained classrooms and other special education settings, Texas Education Code (TEC), §29.022, requires video surveillance on request by a parent, trustee, or staff member. Beginning with the 2016-2017 school year, a school district or open-enrollment charter school must provide video equipment, including video cameras with audio recording capabilities, to campuses on request by a parent, trustee, or staff member. Campuses that receive such equipment must place, operate, and maintain video cameras in certain self-contained classrooms or other special education settings. Video recordings are confidential under the section and may only be released for viewing to certain individuals.

In March 2016, the TEA sought guidance from the Texas Attorney General regarding the proper construction of certain provisions in TEC, §29.022. While the opinion request was pending, TEA adopted new 19 TAC §103.1301 effective August 15, 2016, and advised the public that it would modify the rule, as necessary, upon receipt of the Texas Attorney General's opinion. On September 13, 2016, the Texas Attorney General issued his opinion, which advised TEA that the definition of staff member in 19 TAC §103.1301 is more restrictive than the plain language in TEC, §29.022. The opinion also advised that the plain language of the statute requires a school district or open-enrollment charter school to provide, upon request, video equipment to each self-contained classroom or other special education setting.

The adopted amendment updates the rule to be consistent with the plain language in statute by clarifying the definition of staff member. A conforming edit is made to language relating to who may view a video recording made under TEC, §29.022. In addition, to align with statute, technical changes are made to change the article the to a when referring to self-contained classrooms or other special education settings.

In response to public comment, a change was made at adoption to clarify in subsection (g)(4) that a school district's or charter school's policies relating to video surveillance must include a requirement that video cameras be operated at all times during the instructional day when students are in a self-contained classroom or other special education setting in which video cameras are placed.

SUMMARY OF COMMENTS AND AGENCY RESPONSES. The public comment period on the proposal began November 25, 2016, and ended December 27, 2016. In addition, a public hearing was held on January 9, 2017. Following is a summary of public comments received, including those received at the public hearing, and corresponding agency responses.

Comment: The Texas Association of School Boards (TASB) recommended that 19 TAC §103.1301(g)(4) be amended to read, "a requirement that video cameras be operated at all times during the instructional day when students are in a self-contained classroom or other special education setting in which video cameras are placed [emphasis added]." TASB stated that doing so would prevent local educational agencies (LEAs) from the need to adopt related policies requiring that cameras operate throughout an instructional day whenever students are in "a" self-contained classroom or setting regardless of whether the LEA has received a request for cameras.

Agency Response: The agency agrees and has made the recommended change to §103.1301(g)(4) at adoption.

Comment: TASB commented that it has received questions from LEAs asking about situations when the bathroom in which an audio recording device is in operation is shared by other classrooms or faculty. TASB commented that it has also received questions from LEAs asking how to address situations where it is necessary for bathroom doors to be left open when students' clothes are being changed, resulting in an inadvertent video recording of part of the bathroom area. TASB requested that the agency amend the rule to clarify what is meant by "a bathroom or any area in the classroom or setting in which a student's clothes are changed" in TEC, §29.022(c)(1), and to clarify that incidental or accidental recording of a bathroom or changing area does not violate statute or rule. TASB requested, alternatively, that the agency issue guidance on the issue to provide clarification.

Agency Response: The agency disagrees that additional clarification in rule is needed. It is not possible to develop a rule that addresses every possible scenario. LEAs must determine how best to comply with the statute and rule. Additionally, the agency disagrees that additional guidance is required of the agency on this issue.

Comment: The Texas Council of Administrators of Special Education (TCASE) requested that the agency provide guidance related to Family Educational Rights and Privacy Act (FERPA) issues surrounding confidentiality that includes a definition of education record within the context of the rule.

Agency Response: The agency disagrees. Each situation must be addressed on a case-by-case basis and not through a general guidance document. It is each LEA's responsibility to ensure that it meets FERPA requirements arising from implementation of the related statute and rule.

Comment: TCASE asked the agency to provide the following clarifications.

1. Clarify that one request applies to one classroom in alignment with legislative intent.

2. Clarify the staff member making the request is a staff member assigned or serving students in the classroom for which the camera is requested.

3. Clarify that substitute teachers do not meet the definition of staff member.

4. Clarify the parent making the request is the parent of the child in the classroom for which the camera is requested.

5. Add to classroom setting definition that students must also be eligible to take or would be eligible to take an alternate state assessment in alignment with legislative intent.

6. Allow cameras to be removed in the event the original requestor rescinds the request or no longer meets the definition of parent, staff member, or trustee.

7. Add "local" to clarify other available dispute resolution channels.

8. Add language to clarify that in order to view a video based on a policy violation, the video must document a violation of policy related to abuse or neglect.

9. Add language to clarify a videotape cannot be used in due process hearing or litigation unless it involves allegations of abuse or neglect.

10. Add a definition for in regular attendance to clarify that regular attendance means the child is enrolled in a class for which attendance is regularly taken for state attendance accounting purposes.

11. Identify appropriate funds for this purpose.

Agency Response: The agency disagrees with the first requested clarification related to the extent of a single request for a camera in an eligible classroom, as a request for cameras in one eligible classroom triggers the requirement that cameras be placed in all eligible classrooms as defined by statute and rule.

The agency disagrees with the second requested clarification related to staff members, as any staff member of an LEA may request that cameras be placed in eligible classrooms as defined by statute and rule.

The agency disagrees with the third requested clarification related to substitute teachers. The rule is clear that an employee of the LEA may request that cameras be placed in all eligible classrooms as defined by statute.

The agency disagrees with the fourth requested clarification related to parent requests. The statute does not impose the limitation that TCASE assumes within the clarification request.

The agency disagrees with the fifth requested clarification related to students to which the statute and rule apply, as the statute does not limit the requests to classrooms of students who take an alternate state assessment.

The agency disagrees with the sixth requested clarification related to allowing the removal of cameras from an eligible classroom in the event the requestor rescinds the request or no longer meets the definition of parent, staff member, or trustee, as the statute does not provide for this clarification. Once installed, cameras must remain in a classroom until the setting is no longer a "self-contained classroom or other special education setting in which a majority of the students in regular attendance are: (1) provided special education and related services; and (2) assigned to a self-contained classroom or other special education setting for at least 50 percent of the instructional day."

The agency disagrees with the seventh requested clarification to amend §103.1301(e) to read, "other local dispute resolution channels," as this would impose unnecessary limitations on other possible dispute resolution options the parent and local educational agency may access.

The agency disagrees with the eighth requested clarification related to adding language clarifying that a video must document a policy violation related to abuse or neglect prior to someone being able to view the video. The agency has determined that the definition of incident in §103.1301(b)(9) and the policy requirements in §103.1301(g)(11) are sufficient to address the request.

The agency disagrees with the ninth requested clarification related to disallowing the use of a video in a hearing or in litigation unless it involves allegations of abuse or neglect. Section 103.1301(g)(9) specifically clarifies that the "video recordings must not be used for teacher evaluation or monitoring or for any purpose other than the promotion of student safety."

The agency disagrees with the tenth requested clarification and has determined it is not necessary to define in regular attendance in the rule.

Finally, TCASE requested that the agency identify appropriate funds for the purpose of implementing the statute. This comment is outside the scope of the proposed rulemaking. However, the agency has determined that §103.1301(d) provides sufficient guidance on this issue.

Comment: Disability Rights Texas (DRTx) noted agreement with proposed changes to §103.1301(b)(2), resulting from an opinion from the Texas Attorney General.

Agency Response: The agency agrees and has maintained language as proposed.

Comment: DRTx recommended that §103.1301(g)(6) be amended to reference TEC, §29.022(b), related to how long a local educational agency must operate and maintain a camera in an eligible classroom, and to explain that the Texas Attorney General has recognized that there are no exceptions to requirements in TEC, §29.022(a).

Agency Response: The agency disagrees and has determined that the recommend change is not needed. As noted previously, once installed, cameras must remain in a classroom until the setting is no longer a "self-contained classroom or other special education setting in which a majority of the students in regular attendance are: (1) provided special education and related services; and (2) assigned to a self-contained classroom or other special education setting for at least 50 percent of the instructional day."

Comment: DRTx recommended that §103.1301(g) be amended to include the requirement for LEAs to have written policies requiring that, upon receipt of a request, the LEA will ensure the installation of all necessary cameras and audio recording devices in each eligible classroom and setting in the LEA.

Agency Response: The agency disagrees and has determined the additional clarification is not needed given the Texas Attorney General's opinion, written guidance from the agency on the issue, the statute, and current rule text.

Comment: One individual commented in agreement with the rule and the proposed changes.

Agency Response: The agency agrees. However, in response to another comment, the agency has modified §103.1301(g)(4) at adoption.

Comment: One parent and a representative of Coalition of Human Rights Policy Advocates (CHRPA) recommended that §103.1301 be amended to include timelines by when an LEA must respond to a request for cameras and indicate that the LEA is granting or refusing the request, timelines by when an LEA must install cameras after someone makes a request, and timelines for when an LEA must provide maintenance or upkeep to the cameras and related equipment.

Agency Response: The agency disagrees and has maintained language as proposed. TEC, §29.022, does not include timelines as requested by the commenters. Because the number of classrooms and settings that are subject to the requirements of the statute could vary significantly from one LEA to another, LEAs are in the best position to determine reasonable timelines for responding to requests, installing cameras, and providing maintenance and upkeep to the cameras and related equipment.

Comment: One parent provided testimony about her child's specific situation.

Agency Response: The agency thanks the parent for her testimony, but the issues raised fall outside the scope of the proposed rulemaking.

Comment: Two parents recommended that §103.1301 be amended to allow for criminal charges to be filed against LEAs that do not implement the statute and rule and/or that tamper with video or audio recordings made of classrooms.

Agency Response: The agency disagrees that the amendment is necessary and has maintained language as proposed. The agency does not have rulemaking authority under TEC, §29.022, to impose criminal penalties.

Comment: A representative from CHRPA commented that the rule is not clear as to whether a parent should file a grievance with the LEA if the parent believes that the LEA is not implementing the statute or rule or whether the parent should file a complaint with TEA. The representative commented that a grievance at the local level is for human resource issues and that TEA's website seems to indicate that a parent should file a complaint. One individual recommended that §103.1301 be amended to require a parent to file an initial grievance with an LEA and then to allow the parent to appeal the outcome to TEA or to hearing examiners.

Agency Response: The agency disagrees that revision is necessary and has maintained language as proposed. There is no provision in TEC, §29.022, establishing a complaint or appeal process relating to the statute. The rule requires LEAs to specifically develop and implement policies related to the local grievance procedures for filing a complaint alleging violations of TEC, §29.022, and/or the rule. These policies control in terms of filing a related complaint. While TEC, §7.057(a), allows a person who is aggrieved by actions or decisions of a school district board of trustees that violate the school laws of Texas to file an appeal with the commissioner, the agency notes that commissioner decisions have held that the statute does not apply to decisions made by the governing body of an open-enrollment charter school.

Comment: A representative from the Texas affiliate of the American Federation of Teachers (Texas AFT) recommended that §103.1301(g) be amended to allow educators the ability to stop cameras from recording when no students are in the classroom.

Agency Response: The agency disagrees that the recommended language is needed. Section 103.1301(g)(4) requires an LEA's policies to include a "requirement that video cameras be operated at all times during the instructional day when students are in the self-contained classroom or other special education setting [emphasis added]."

Comment: A representative from Texas AFT recommended that §103.1301(g)(8) be amended to clarify that recordings must be encrypted and secured in order to ensure students' privacy.

Agency Response: The agency disagrees and has maintained language as proposed. The agency has determined that LEAs are the best authority for determining how to secure recordings made in their classrooms.

Comment: A representative from Texas AFT recommended that §103.1301 be amended to require LEAs to obtain and use technology for redacting images, voices, and any other student-identifying information from recordings.

Agency Response: The agency disagrees. TEC, §29.022, does not address redactions from video recordings. To the extent a video recording made under TEC, §29.022, is an education record under FERPA, a school should follow the relevant Family Policy Compliance Office (FPCO) guidance in determining whether the images, voices, or other identifying information of students must be redacted.

Comment: A representative from Texas AFT recommended that §103.1301 be amended to require LEAs to maintain viewer logs of those who view recordings made in the classrooms.

Agency Response: The agency disagrees. TEC, §29.022, does not include a requirement for viewer logs. To the extent a video recording made under TEC, §29.022, is an education record under FERPA, a school should follow the relevant FPCO guidance related to maintaining access logs to the recordings.

Comment: A representative from Texas AFT recommended that §103.1301(h)(1) be amended to clarify that only staff members who are involved in an incident as defined by the rule may view a recording as opposed to any staff member of an LEA. The representative states that, as written, "involved in an incident" modifies the word "parent" and not "staff member," meaning that any staff member can view the recordings.

Agency Response: The agency disagrees that clarification is needed and has maintained language as proposed. Section 103.1301(h)(1) is derived from TEC, §29.002(i), and both provisions are clear that "involved in an incident" modifies both "staff member" and "parent."

STATUTORY AUTHORITY. The amendment is adopted under the Texas Education Code (TEC), §29.022, which requires video surveillance in certain special education settings in order to promote student safety. TEC, §29.022(k), authorizes the commissioner to adopt rules to implement and administer TEC, §29.022, including rules regarding the special education settings to which the section applies.

CROSS REFERENCE TO STATUTE. The amendment implements the Texas Education Code, §29.022.

§103.1301.Video Surveillance of Certain Special Education Settings.

(a) Requirement to implement. Beginning with the 2016-2017 school year, in order to promote student safety, on request by a parent, trustee, or staff member, a school district or open-enrollment charter school must provide video equipment to campuses in accordance with Texas Education Code (TEC), §29.022, and this section. Campuses that receive video equipment must place, operate, and maintain video cameras in self-contained classrooms or other special education settings in accordance with TEC, §29.022, and this section.

(b) Definitions. For purposes of TEC, §29.022, and this section, the following terms have the following meanings.

(1) Parent means a person described in TEC, §26.002, whose child receives special education and related services for at least 50 percent of the instructional day in a self-contained classroom or other special education setting. Parent also means a student who receives special education and related services for at least 50 percent of the instructional day in a self-contained classroom or other special education setting and who is 18 years of age or older or whose disabilities of minority have been removed for general purposes under Texas Family Code, Chapter 31, unless the student has been determined to be incompetent or the student's rights have been otherwise restricted by a court order.

(2) Staff member means an employee of the school district or open-enrollment charter school.

(3) Trustee means a member of a school district's board of trustees or a member of an open-enrollment charter school's governing body.

(4) Open-enrollment charter school means a charter granted to a charter holder under TEC, §12.101 or §12.152, identified with its own county district number.

(5) Self-contained classroom means a classroom on a regular school campus (i.e., a campus that serves students in general education and students in special education) of a school district or an open-enrollment charter school in which a majority of the students in regular attendance are provided special education and related services and have one of the following instructional arrangements/settings described in the student attendance accounting handbook adopted under §129.1025 of this title (relating to Adoption by Reference: Student Attendance Accounting Handbook):

(A) self-contained (mild/moderate/severe) regular campus;

(B) full-time early childhood (preschool program for children with disabilities) special education setting;

(C) residential care and treatment facility--self-contained (mild/moderate/severe) regular campus;

(D) residential care and treatment facility--full-time early childhood special education setting;

(E) off home campus--self-contained (mild/moderate/severe) regular campus; or

(F) off home campus--full-time early childhood special education setting.

(6) Other special education setting means a classroom on a separate campus (i.e., a campus that serves only students who receive special education and related services) of a school district or open-enrollment charter school in which a majority of the students in regular attendance are provided special education and related services and have one of the following instructional arrangements/settings described in the student attendance accounting handbook adopted under §129.1025 of this title:

(A) residential care and treatment facility--separate campus; or

(B) off home campus--separate campus.

(7) Video camera means a video surveillance camera with audio recording capabilities.

(8) Video equipment means one or more video cameras and any technology and equipment needed to place, operate, and maintain video cameras as required by TEC, §29.022, and this section. Video equipment also means any technology and equipment needed to store and access video recordings as required by TEC, §29.022, and this section.

(9) Incident means an event or circumstance that:

(A) involves alleged "abuse" or "neglect," as those terms are described in Texas Family Code, §261.001, of a student by an employee of the school district or charter school or alleged "physical abuse" or "sexual abuse," as those terms are described in Texas Family Code, §261.410, of a student by another student; and

(B) allegedly occurred in a self-contained classroom or other special education setting in which video surveillance under TEC, §29.022, and this section is conducted.

(c) Exclusions. A school district or open-enrollment charter school is not required to provide video equipment to a campus of another district or charter school or to a nonpublic school. In addition, the Texas School for the Deaf, the Texas School for the Blind and Visually Impaired, the Texas Juvenile Justice Department, and any other state agency that provides special education and related services to students are not subject to the requirements in TEC, §29.022, and this section.

(d) Use of funds. A school district or open-enrollment charter school may solicit and accept gifts, grants, and donations from any person to implement the requirements in TEC, §29.022, and this section. A district or charter school is not permitted to use Individuals with Disabilities Education Act, Part B, funds or state special education funds to implement the requirements of TEC, §29.022, and this section.

(e) Dispute resolution. The special education dispute resolution procedures in 34 Code of Federal Regulations, §§300.151-300.153 and 300.504-300.515, do not apply to complaints alleging that a school district or open-enrollment charter school has failed to comply with TEC, §29.022, and/or this section. Complaints alleging violations of TEC, §29.022, and/or this section must be addressed through the district's or charter school's local grievance procedures or other dispute resolution channels.

(f) Regular school year and extended school year services. TEC, §29.022, and this section apply to video surveillance during the regular school year and during extended school year services.

(g) Policies and procedures. Each school district board of trustees and open-enrollment charter school governing body must adopt written policies relating to video surveillance under TEC, §29.022, and this section. At a minimum, the policies must include:

(1) a statement that video surveillance is for the purpose of promoting student safety in certain self-contained classrooms and other special education settings;

(2) the procedures for requesting video surveillance and the procedures for responding to a request for video surveillance;

(3) the procedures for providing advanced written notice to the campus staff and the parents of the students assigned to a self-contained classroom or other special education setting that video and audio surveillance will be conducted in the classroom or setting;

(4) a requirement that video cameras be operated at all times during the instructional day when students are in a self-contained classroom or other special education setting in which video cameras are placed;

(5) a statement regarding the personnel who will have access to video equipment or video recordings for purposes of operating and maintaining the equipment or recordings;

(6) a requirement that a campus continue to operate and maintain any video camera placed in a self-contained classroom or other special education setting for as long as the classroom or setting continues to satisfy the requirements in TEC, §29.022(a);

(7) a requirement that video cameras placed in a self-contained classroom or other special education setting be capable of recording video and audio of all areas of the classroom or setting, except that no video surveillance may be conducted of the inside of a bathroom or other area used for toileting or diapering a student or removing or changing a student's clothes;

(8) a statement that video recordings must be retained for at least six months after the date the video was recorded;

(9) a statement that the regular or continual monitoring of video is prohibited and that video recordings must not be used for teacher evaluation or monitoring or for any purpose other than the promotion of student safety;

(10) at the school district's or open-enrollment charter school's discretion, a requirement that campuses post a notice at the entrance of any self-contained classroom or other special education setting in which video cameras are placed stating that video and audio surveillance are conducted in the classroom or setting;

(11) the procedures for reporting a complaint alleging that an incident occurred in a self-contained classroom or other special education setting in which video surveillance under TEC, §29.022, and this section is conducted;

(12) the local grievance procedures for filing a complaint alleging violations of TEC, §29.022, and/or this section; and

(13) a statement that video recordings made under TEC, §29.022, and this section are confidential and a description of the limited circumstances under which the recordings may be viewed.

(h) Confidentiality of video recordings. A video recording made under TEC, §29.022, and this section is confidential and may only be viewed by the following individuals, to the extent not limited by the Family Educational Rights and Privacy Act of 1974 (FERPA) or other law:

(1) a staff member or a parent of a student involved in an incident described in subsection (b)(9) of this section that is documented by a video recording for which a complaint has been reported to the district or charter school;

(2) appropriate Texas Department of Family and Protective Services personnel as part of an investigation under Texas Family Code, §261.406;

(3) a peace officer, school nurse, administrator trained in de-escalation and restraint techniques as provided by commissioner rule, or a human resources staff member designated by the school district's board of trustees or open-enrollment charter school's governing body in response to a complaint or an investigation of an incident described in subsection (b)(9) of this section; or

(4) appropriate Texas Education Agency or State Board for Educator Certification personnel or agents as part of an investigation.

(i) Child abuse and neglect reporting. If a person described in subsection (h)(3) or (4) of this section views a video recording and has cause to believe that the recording documents possible abuse or neglect of a child under Texas Family Code, Chapter 261, the person must submit a report to the Texas Department of Family and Protective Services or other authority in accordance with the local policy adopted under §61.1051 of this title (relating to Reporting Child Abuse and Neglect) and Texas Family Code, Chapter 261.

(j) Disciplinary actions and legal proceedings. If a person described in subsection (h)(2), (3), or (4) of this section views a video recording and believes that it documents a possible violation of school district, open-enrollment charter school, or campus policy, the person may allow access to the recording to appropriate legal and human resources personnel of the district or charter school to the extent not limited by FERPA or other law. A recording believed to document a possible violation of school district, open-enrollment charter school, or campus policy may be used in a disciplinary action against district or charter school personnel and must be released in a legal proceeding at the request of a parent of the student involved in the incident documented by the recording. A recording believed to document a possible violation of school district, open-enrollment charter school, or campus policy must be released for viewing by the district or charter school employee who is the subject of the disciplinary action at the request of the employee.

(k) Access rights. Subsections (i) and (j) of this section do not limit the access of a student's parent to an educational record of the student under FERPA or other law. To the extent any provisions in TEC, §29.022, and this section conflict with FERPA or other federal law, federal law prevails.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 23, 2017

TRD-201700732

Cristina De La Fuente-Valadez

Director, Rulemaking

Texas Education Agency

Effective date: March 15, 2017

Proposal publication date: November 25, 2016

For further information, please call: (512) 475-1497