January 2016 Committee of the Full Board Wednesday Item 2
Proposed Revisions to 19 TAC Chapter 66, State Adoption and Distribution of Instructional Materials, Subchapter A, General Provisions, Subchapter B, State Adoption of Instructional Materials, and Subchapter C, Local Operations
(Second Reading and Final Adoption)
January 29, 2016
COMMITTEE OF THE FULL BOARD: ACTION
STATE BOARD OF EDUCATION: ACTION
SUMMARY: This item presents for second reading and final adoption proposed revisions to 19 TAC Chapter 66, State Adoption and Distribution of Instructional Materials, Subchapter A, General Provisions, Subchapter B, State Adoption of Instructional Materials, and Subchapter C, Local Operations. The proposed revisions would update rules related to state review and adoption of instructional materials as well as ordering and distribution of instructional materials.
STATUTORY AUTHORITY: Texas Education Code (TEC), §§7.102, 31.003-31.005, 31.022, 31.0221, 31.023, 31.024, 31.0241, 31.0242, 31.026, 31.0261, 31.027, 31.030, 31.035, 31.101, 31.103, 31.104, and 31.151.
TEC, §7.102, requires the State Board of Education (SBOE) to adopt rules related to the TEC, Chapter 31.
TEC, §31.003, authorizes the SBOE to adopt rules for the adoption, requisition, distribution, care, use, and disposal of instructional materials.
TEC, §31.004, requires annual certification to the SBOE and commissioner that the district or open-enrollment charter provides instructional materials to cover the Texas essential knowledge and skills (TEKS).
TEC, §31.005, authorizes an open-enrollment charter school to use the instructional materials allotment and subjects the school to Chapter 31 as if the school were a school district.
TEC, §31.022, requires the SBOE to adopt a review and adoption cycle for instructional materials in prekindergarten through Grade 12 and establishes priorities for that cycle. The statute requires the SBOE to adopt rules to provide for a full and complete investigation of instructional materials for each subject in the foundation curriculum every eight years and the enrichment curriculum as appropriate. TEC, §31.022, also establishes requirements for the SBOE to meet regarding issuing proclamations.
TEC, §31.0221, requires the SBOE to adopt rules for the midcycle review and adoption of instructional materials for a subject for which materials are not currently under review as part of the regular adoption cycle. The rules must require participating publishers to pay a fee to cover costs of the review, to enter into an appropriate contract that ends at the same time as other products adopted for that subject area, and to commit to providing adopted materials in the agreed-upon manner.
TEC, §31.023, requires the SBOE to adopt a list of instructional materials that meet applicable physical specifications and contain material covering at least half of the applicable TEKS in the student version and in the teacher version.
TEC, §31.024, requires the SBOE to make decisions on the adopted list by majority vote and to provide a list of adopted materials no later than December 1 of the year prior to the year the materials are expected to be in classrooms.
TEC, §31.0241, requires the SBOE to include open-source materials produced by eligible institutions on the adopted list if they meet certain requirements.
TEC, §31.0242, prescribes time periods and duties for the SBOE with regard to review of open-source materials.
TEC, §31.026, requires the SBOE to execute contracts with publishers of adopted materials that coincide with the board's review cycle and that specify a price fixed for the term of the contract that does not exceed the lowest price paid by any other state or any school or school district.
TEC, §31.0261, allows the SBOE to execute contracts for the printing of adopted open-source instructional materials and requires that the contracts allow a school district to purchase printed copies of those materials.
TEC, §31.027, establishes requirements for the provision of samples to school districts and charters.
TEC, §31.030, requires the SBOE to adopt rules regarding used instructional materials and provide for administrative penalties.
TEC, §31.035, allows the SBOE to adopt supplemental instructional materials that are not on the adopted list if the material covers one or more primary focal points or topics of a subject in the required curriculum, is not designed to serve as the only instructional material for the course, meets applicable physical specifications, and is free from factual errors. The statute requires the SBOE to identify the TEKS that are covered by the supplemental instructional material and requires the material to comply with the review and adoption cycle provisions.
TEC, §31.101, requires a school district board of trustees or a governing body of an open-enrollment charter school to notify the SBOE of instructional materials selected.
TEC, §31.103, prescribes instructional materials requisition procedures and requirements for school districts and open-enrollment charters.
TEC, §31.104, prescribes requirements for schools districts and charters on the distribution and handling of instructional materials.
TEC, §31.151, authorizes the SBOE to impose a reasonable administrative penalty against a publisher or a manufacturer who knowingly violates the TEC, §31.151(a), and requires the SBOE to provide for a hearing to be held to determine whether a penalty is to be imposed and, if so, the amount of the penalty.
EFFECTIVE DATE: The proposed effective date of the proposed revisions is 20 days after filing as adopted with the Texas Register. Under TEC, §7.102(f), the SBOE must approve the rule action at second reading and final adoption by a vote of two-thirds of its members to specify an effective date earlier than the beginning of the 2016-2017 school year. The earlier effective date will enable Proclamation 2017 products to be reviewed under the revised rules.
PREVIOUS BOARD ACTION: The SBOE adopted rules in 19 TAC Chapter 66, Subchapters A-C, effective September 1, 1996. Subsequent amendments to the rules included comprehensive changes adopted effective October 12, 2006. The SBOE last amended rules in Subchapters A and C effective July 8, 2012, and in Subchapter B effective May 21, 2014. The SBOE approved proposed revisions to 19 TAC Chapter 66, Subchapters A-C, for first reading and filing authorization at the November 2015 meeting.
BACKGROUND INFORMATION AND SIGNIFICANT ISSUES: The changing nature of instructional materials and changes in statute since the passage of Senate Bill 6, 82nd Texas Legislature, First Called Session, 2011, and legislation passed by the 84th Texas Legislature, 2015, necessitates updates to the SBOE rules regarding instructional materials.
The proposed revisions to 19 TAC Chapter 66, Subchapters A-C, shown in Attachment II, would update and clarify the process for the review, adoption, and distribution of instructional materials. The proposed revisions include the repeal of a number of rules in order to reorganize the chapter and to remove provisions that are no longer necessary. Provisions that are still needed from the proposed repealed rules would be added as new rules and as amendments to existing rules. Many of the proposed revisions are non-substantive and intended to make the Chapter 66 rules clearer and easier to follow. The proposed revisions would include the following.
Proposed new §66.10 would clarify the process by which a complainant may allege violation of the TEC, §39.151, or a rule implementing that section. The proposed rule specifies the format of the complaint and creates a process for the commissioner of education to consider the complaint and make a recommendation to the SBOE for action on the complaint. The rule clarifies the contested case hearing process for a publisher against whom the SBOE seeks to assess an administrative penalty.
Proposed new §66.15 would clarify that the SBOE may assess an administrative penalty for a violation of the TEC, §31.151, or a rule implementing that provision. The proposed rule specifies certain conditions under which the violations of the TEC, §31.151, or rules adopted thereunder may be sanctioned and provides a safe harbor for publishers to come into compliance. The proposed section is necessary to provide greater clarity about how violations of the TEC, §31.151, will be cured or adjudicated and sanctioned and ensure adequate due process in addressing those alleged violations.
The proposed amendment to §66.21 would add to the rule the statutory requirements of the TEC, §31.022, which mandates certain minimum requirements for the instructional materials review and adoption cycle, and would provide that the SBOE will consider the estimated expenditures required for new materials as part of the review and adoption process.
The proposed amendment to §66.27 would provide that the SBOE will conduct an investigation into the need for new instructional materials after the adoption of revised Texas essential knowledge and skills (TEKS) and would set out options should the investigation result in determined need for instructional materials. The rule provides additional clarity about the procedural and substantive requirements for instructional materials proclamations to benefit both publishers and districts. The rule includes minimum requirements for accessibility of electronic materials by students with disabilities.
Additionally, the proposal would specify detailed requirements for a publisher offering materials for review and adoption. These requirements provide for transparency and clarity about the standards to which publishers will be held in compliance with the TEC, Chapter 31. The proposal would also set out requirements that a publisher who participates in the midcycle review must meet, including submission of samples to the SBOE. The proposal would provide that, consistent with the TEC, the publisher must ensure compliance with certain minimum manufacturing standards. The proposal prescribes minimum standards for participation in the bidding process and review process, which include making the bid, ensuring accessibility of the item for review, payment of fees and costs, the provision of samples prior to adoption, and TEKS coverage.
Proposed new §66.29 would contain specific requirements for a website that is used to meet the TEKS coverage in a state-adopted material. The rule requires that the content be monitored by the publisher to maintain TEKS coverage, keep the material updated, and be free from advertising. These requirements are necessary to make sure students are protected from unsafe website content and that the TEKS coverage remains aligned.
The proposed amendments to §66.30 and §66.36 would set out additional procedural safeguards for eligibility, appointment, and conduct for members of the state instructional materials review panels in order to make sure qualified individuals are appointed to the panels and that the SBOE retains input into the process. These rules would also address the training and conduct of the review panel members to help ensure a high-quality review process that is free from conflicts of interest. These include ethical standards and periods of prohibited contacts for review panel and SBOE members.
Proposed new §66.39 would contain provisions governing the handling of electronic samples of instructional materials in a manner that maintains the integrity of the process and allows for public access.
Proposed new §66.41 and §66.43 would address when content may be added during the review panel process and the public comment period. These rules would update provisions taken from rules proposed for repeal to ensure the greatest clarity and transparency for the instructional materials adoption.
The proposed amendment to §66.81 would require publishers to offer components of instructional materials packages for individual sale.
The proposed amendment to §66.104 would require a school district board of trustees to provide assurance to the public of coverage of the TEKS and adopt materials locally in a public and transparent manner with opportunity for public input.
The proposed amendment to §66.107 would require a school district board of trustees to require training of local personnel in use of the state online instructional materials adoption system, known as EMAT.
The proposed revisions include other clarifying and conforming amendments pursuant to the TEC, §31.003, to implement each of the requirements of the TEC, Chapter 31.
FISCAL IMPACT: The Texas Education Agency (TEA) has determined that there are no additional costs to persons or entities required to comply with the proposed rule actions. In addition, there is no direct adverse economic impact for small businesses and microbusinesses; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.
PUBLIC AND STUDENT BENEFIT: Benefits include clear guidance regarding the review and adoption of instructional materials for those participating in the process.
PROCEDURAL AND REPORTING IMPLICATIONS: The proposed revisions would have no procedural and reporting requirements, with the exception of proposed new 19 TAC §66.10. This proposed new rule would require districts wishing to complain about instructional materials to provide specific information to the TEA.
LOCALLY MAINTAINED PAPERWORK REQUIREMENTS: The proposed revisions would have no locally maintained paperwork requirements.
PUBLIC COMMENTS: Following the November 2015 SBOE meeting, notice of the proposed revisions to 19 TAC Chapter 66, State Adoption and Distribution of Instructional Materials, Subchapter A, General Provisions, Subchapter B, State Adoption of Instructional Materials, and Subchapter C, Local Operations, was filed with the Texas Register, initiating the official public comment period. No comments had been received at the time this item was prepared. A summary of any public comments received regarding the proposal will be provided to the SBOE prior to and during the January 2016 meeting.
ALTERNATIVES: None.
OTHER COMMENTS AND RELATED ISSUES: Adoption of the review of 19 TAC Chapter 66, State Adoption and Distribution of Instructional Materials, Subchapter A, General Provisions, Subchapter B, State Adoption of Instructional Materials, and Subchapter C, Local Operations, is presented for action as a separate item in this agenda.
MOTION TO BE CONSIDERED: The State Board of Education:
By an affirmative vote of two-thirds of the members of the board, approve for second reading and final adoption proposed revisions to 19 TAC Chapter 66, State Adoption and Distribution of Instructional Materials, Subchapter A, General Provisions, Subchapter B, State Adoption of Instructional Materials, and Subchapter C, Local Operations, with an effective date of 20 days after filing as adopted with the Texas Register.
Staff Members Responsible:
Monica Martinez, Associate Commissioner
Standards and Programs
Kelly Callaway, Division Director
Instructional Materials and Educational Technology
Attachments:
I. Statutory Citations (PDF, 62KB)
II. Text of Proposed Revisions to 19 TAC Chapter 66, State Adoption and Distribution of Instructional Materials, Subchapter A, General Provisions, Subchapter B, State Adoption of Instructional Materials, and Subchapter C, Local Operations (PDF, 269KB)