19_01 Adopted Revisions to 19 TAC Chapter 103, Subchapter DD
Commissioner's Rules
Adopted Revisions to 19 TAC Chapter 103, Health and Safety, Subchapter DD, Commissioner's Rules Concerning Video Surveillance of Certain Special Education Settings
Attachment I. Statutory Citation (PDF)
Attachment II. Text of Adopted Revisions to 19 TAC Chapter 103, Health and Safety, Subchapter DD, Commissioner's Rules Concerning Video Surveillance of Certain Special Education Settings (PDF)
Attachment III. Summary of Public Comments and Agency Responses
SUMMARY: The rule action presented in this item was filed as adopted with the Texas Register under the commissioner's rulemaking authority. This item adopts revisions to 19 TAC Chapter 103, Health and Safety, Subchapter DD, Commissioner's Rules Concerning Video Surveillance of Certain Special Education Settings. The revisions 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 adopted revisions 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.
EFFECTIVE DATE: January 31, 2019.
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 Texas Education Agency (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 adopted amendment to §103.1301, Video Surveillance of Certain Special Education Settings, implements changes made by SB 1398. Subsection (a) has been modified to specify that a request for video equipment must be in writing and to amend the list of who may make a request for cameras to align with statute. The definitions of parent, staff member, self-contained classroom, and other special education setting have been amended in subsection (b), and definitions for school business day and time-out have been added. The definition for trustee has been 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, has been 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 have been included in the subsection. In addition, language relating to video surveillance of bathrooms has been clarified and the retention of video recordings has been changed from six months to three months to align with statutory changes.
Adopted new subsection (i) implements 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).
In response to public comment, the following changes were made to §103.1301 at adoption.
Subsection (b) was amended to specify that the definitions apply to the entire subchapter.
Subsection (b)(8) was amended to replace "employee" with "staff member."
Subsection (b)(9) was amended to include open-enrollment charter schools in the definition of school business day.
Subsection (g)(8) was amended to reference the notice requirements of TEC, §29.022(b), when notifying campus staff and parents of the opportunity to request continued video and audio surveillance if video and audio surveillance will otherwise cease.
Subsection (g)(9) was amended to clarify that video cameras must be operated when one or more students are present in a self-contained classroom or other special education setting during the instructional day.
Subsection (h) was amended to reference the requirements of TEC, §29.022(i), with which school districts, open-enrollment charters schools, and campuses must comply, regardless of the existence of local policies.
Subsection (h)(3) was amended to include administrators of charter schools in the list of individuals who may view a video or to whom a video may be released.
Adopted new §103.1303, Commissioner's Review of Actions Concerning Video Cameras in Special Education Settings, establishes 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 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 has been established. Recognizing the urgency of the need for resolution, expeditious timelines have been 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.
In response to public comment, the following changes were made to §103.1303 at adoption.
Subsection (a) was amended to address the denial of a request to view a video and to specify that one may appeal a constructive denial that occurs when a school district fails to issue a timely denial of a request.
Subsection (b) was amended to move language stating that the commissioner will not consider the cost to the district of installing cameras or releasing a video from paragraph (3) into new paragraph (4).
Subsection (b)(3) was amended to remove the phrase, "and school district policy," to clarify that the commissioner will consider whether a requestor made a proper request under TEC, §29.022(a-3), only.
Subsection (b)(7)(A) was amended to specify that the expedited review process does not apply to a request to only view a video.
Subsection (b)(7)(B) and (D) were amended to clarify that the party who requests an expedited review is not required to notify all interested parties of the request. In addition, language was added to subsection (b)(7)(E) stating that the agency will notify interested parties of a request for expedited review.
Subsection (b)(7)(E) was amended to direct all interested parties, including school districts, to identify any interested parties that are not identified by parents to ensure all interested parties are made aware of the expedited review.
Subsection (c)(1) was amended to specify that a school district should request an extension when it knows that it will not be able to timely install the camera.
FISCAL IMPACT: No changes have been made to this section since published as proposed.
TEA has determined that there are no additional costs to state or local government required to comply with the proposal. 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.
LOCAL EMPLOYMENT IMPACT: No changes have been made to this section since published as proposed.
The proposal has no effect on local economy; therefore, no local employment impact statement is required under Texas Government Code, §2001.022.
SMALL BUSINESS, MICROBUSINESS, AND RURAL COMMUNITY IMPACT: No changes have been made to this section since published as proposed.
The proposal has no direct adverse economic impact for small businesses, microbusinesses, or rural communities; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.
COST INCREASE TO REGULATED PERSONS: No changes have been made to this section since published as proposed.
The proposal does not impose a cost on regulated persons, another state agency, a special district, or a local government and, therefore, is not subject to Texas Government Code, §2001.0045.
TAKINGS IMPACT ASSESSMENT: The proposal does not impose a burden on private real property and, therefore, does not constitute a taking under Texas Government Code, §2007.043.
GOVERNMENT GROWTH IMPACT: No changes have been made to this section since published as proposed.
TEA staff prepared a Government Growth Impact Statement assessment for this rulemaking. During the first five years the 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. New §103.1303 is in response to the new requirements.
The 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 BENEFIT AND COST TO PERSONS: No changes have been made to this section since published as proposed.
The revisions benefit constituents by providing needed clarification of certain requirements in SB 1398 and by providing rules for expedited reviews and related appeals. There is no anticipated economic cost to persons who are required to comply with the proposal.
DATA AND REPORTING IMPLICATIONS: No changes have been made to this section since published as proposed.
TEC, §29.022, as amended by SB 1398, requires the TEA to collect data related to requests for cameras and how LEAs responded to the requests; however, the revisions do not impose any new or additional reporting requirements.
PRINCIPAL AND CLASSROOM TEACHER PAPERWORK REQUIREMENTS: TEA has determined that the proposal would not require a written report or other paperwork to be completed by a principal or classroom teacher.
PUBLIC COMMENTS: The public comment period on the proposal began on August 31, 2018, and ended on October 1, 2018, and included a public hearing on September 19, 2018. Attachment III reflects a summary of the public comments received and agency responses.
Staff Member Responsible:
Keith Swink, Manager, Division of Dispute Resolution and Strategic Supports