18_08 Proposed Revisions to 19 TAC Chapter 103, Subchapter DD

Commissioner's Rules

Proposed Revisions to 19 TAC Chapter 103, Health and Safety, Subchapter DD, Commissioner's Rules Concerning Video Surveillance of Certain Special Education Settings


Attachments:
I. Statutory Citation (PDF)
II. Text of Proposed Revisions to 19 TAC Chapter 103, Health and Safety, Subchapter DD, Commissioner's Rules Concerning Video Surveillance of Certain Special Education Settings (PDF)


SUMMARY: The rule action presented in this item was filed as proposed with the Texas Register under the commissioner's rulemaking authority. This item proposes revisions to 19 TAC Chapter 103, Health and Safety, Subchapter DD, Commissioner's Rules Concerning Video Surveillance of Certain Special Education Settings. The proposed revisions would amend 19 TAC §103.1301, Video Surveillance of Certain Special Education Settings, and add new 19 TAC §103.1303, Commissioner's Review of Actions Concerning Video Cameras in Special Education Settings. The proposed amendment and new rule would reflect requirements in Senate Bill (SB) 1398, 85th Texas Legislature, Regular Session, 2017.

STATUTORY AUTHORITY: Texas Education Code (TEC), §29.022, as amended by SB 1398, 85th Texas Legislature, Regular Session, 2017.

TEC, §29.022, as amended by SB 1398, 85th Texas Legislature, Regular Session, 2017, requires video surveillance in certain special education settings 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. TEC, §29.022, as amended by SB 1398, 85th Texas Legislature, Regular Session, 2017, authorizes the commissioner to adopt rules to address requests for expedited reviews and related appeals.

EARLIEST POSSIBLE DATE OF ADOPTION: October 1, 2018.

PROPOSED EFFECTIVE DATE: December 2, 2018.

BACKGROUND INFORMATION AND JUSTIFICATION: SB 507, 84th Texas Legislature, Regular Session, 2015, created TEC, §29.022, and required video surveillance to promote the safety of students receiving special education and related services in certain self-contained classrooms and other special education settings.

SB 1398, 85th Texas Legislature, Regular Session, 2017, amended TEC, §29.022, providing clarification on who may make a request for cameras, how a request must be made, how local educational agencies (LEAs) must respond to requests for cameras, and who may review a recording made under TEC, §29.022, and under what circumstances this can occur. TEC, §29.022(l), includes timelines for having cameras in operation following a request. TEC, §29.022(m)-(o), includes the right to ask the TEA to expedite a review of (1) a school district's denial for cameras; (2) a school district's request to extend the timeline to put the cameras in operation; and (3) a school district's determination not to release a recording. TEC, §29.022(p), requires the commissioner to adopt rules to address requests for expedited reviews and related appeals. Finally, TEC, §29.022, provides clarification of terms used in the statute.

The proposed amendment to §103.1301, Video Surveillance of Certain Special Education Settings, would implement changes made by SB 1398. Subsection (a) would be modified to specify that a request for video equipment must be in writing and would amend the list of who may make a request for cameras to align with statute. Subsection (b) would amend the definitions of parent, staff member, self-contained classroom, and other special education setting and add definitions for school business day and time-out. The definition for trustee would be removed since individual trustees were removed in TEC, §29.022, from the list of who may make a request for cameras.

Subsection (g), relating to policies and procedures, would be updated to refer to the process to appeal local decisions and provide additional details relating to policies and procedures for the placement, operation, and maintenance of video cameras. The timeframes established by TEC, §29.022, for when a school district or open-enrollment charter school must respond to a request for a video camera, begin operation of the camera, and maintain operation of the camera would be included in the subsection. In addition, language relating to video surveillance of bathrooms would be clarified and the retention of video recordings would be changed from six months to three months to align with statutory changes.

Proposed new subsection (i) would implement statute by specifying that certain contractors or employees performing job duties relating to video equipment or recordings do not violate the confidentiality required under subsection (h).

Proposed new §103.1303, Commissioner's Review of Actions Concerning Video Cameras in Special Education Settings, would establish provisions relating to the applicability, denial of a request, and extension of time for hearings and reviews of actions taken relating to the denial of a request for placement of a video camera or a determination not to release a video.

The intention of proposed new §103.1303 is to comply with the statutory requirements for the commissioner's review of appeals of school district decisions concerning video cameras in special education settings and requests from school districts for extensions of time and to do so in a manner that provides an expeditious and fair decision for appeals and requests. While recognizing that parents and school employees retain their rights to grievance hearings and an appeal to the commissioner under TEC, §7.057, a new appeal structure to the commissioner would be established. Recognizing the urgency of the need for resolution, expeditious timelines would be established. When an appeal of a denial of a request for the placement of cameras is made, the commissioner will consider whether the person making the request is statutorily authorized to do so and whether the request was properly made. The commissioner will not consider the cost of compliance. When an appeal of a denial of a request to release a video is made, the commissioner will consider whether the individual is statutorily authorized to receive the video. The commissioner may conduct an in-camera inspection of the video in an appropriate case. When the commissioner considers a request for an extension of time, he will consider all relevant factors, which may include contracting statutes, architectural and structural issues, and the difference in costs to the district if a moderate extension of time is granted.

FISCAL IMPACT: The TEA has determined that there are no additional costs to persons or entities required to comply with the proposed amendment or new rule. Potential costs to school districts and open-enrollment charter schools resulting from SB 1398, 85th Texas Legislature, Regular Session, 2017, will vary depending on the number of self-contained and other special education settings in the district or charter school and on the number of cameras necessary to adequately cover each classroom.

The TEA has also determined that there is no direct adverse economic impact for small businesses, microbusinesses, and rural communities; therefore, no regulatory flexibility analysis specified in Texas Government Code, §2006.002, is required. There is no effect on local economy; therefore, no local employment impact statement is required under Texas Government Code, §2001.022. The proposed amendment and new rule do not impose a cost on regulated persons, another state agency, a special district, or a local government and, therefore, are not subject to Texas Government Code, §2001.0045.

GOVERNMENT GROWTH IMPACT: TEA staff prepared a Government Growth Impact Statement assessment for this proposed rulemaking. During the first five years the proposed rulemaking would be in effect, it would create a new regulation. TEC, §29.022, as amended by SB 1398, 85th Texas Legislature, Regular Session, 2017, includes the right to ask the TEA to expedite a review of a school district's denial for cameras, a school district's request to extend the timeline to put the cameras in operation, and a school district's determination not to release a recording. The TEA must adopt rules to address requests for expedited reviews and related appeals. Proposed new §103.1303 is in response to the new requirements.

The proposed amendment and new rule would not create or eliminate a government program; would not require the creation of new employee positions or elimination of existing employee positions; would not require an increase or decrease in future legislative appropriations to the agency; would not require an increase or decrease in fees paid to the agency; would not expand, limit, or repeal an existing regulation; would not increase or decrease the number of individuals subject to its applicability; and would not positively or adversely affect the state's economy.

PUBLIC AND STUDENT BENEFIT: The proposed amendment and new rule would benefit constituents by aligning the rules with statute and providing needed clarification of certain requirements in SB 1398.

PROCEDURAL AND REPORTING IMPLICATIONS: TEC, §29.022, as amended by SB 1398, 85th Texas Legislature, Regular Session, 2017, requires the TEA to collect data related to requests for cameras and how LEAs responded to the requests; however, the proposed amendment and new rule would not impose any new or additional reporting requirements for school districts.

 
LOCALLY MAINTAINED PAPERWORK REQUIREMENTS: The proposed amendment and new rule would require school districts and charter schools to adopt and/or amend policies and procedures to implement SB 1398.

PUBLIC COMMENTS: The public comment period on the proposal begins August 31, 2018, and ends October 1, 2018.

ALTERNATIVES: None.

OTHER COMMENTS AND RELATED ISSUES: A public hearing to solicit testimony and input on the proposed amendment and new rule will be held at 8:30 a.m. on September 24, 2018, in Room 1-100, William B. Travis Building, 1701 North Congress Avenue, Austin, Texas 78701. Anyone wishing to testify at the hearing must sign in between 8:15 a.m. and 9:00 a.m. on the day of the hearing. The hearing will conclude once all who have signed in have been given the opportunity to comment.

Staff Members Responsible:
Justin Porter, Executive Director, Department of Special Populations
Keith Swink, Manager, Division of Special Education