19_01 Public Comments on 19 TAC Chapter 103, Subchapter DD
Attachment III
Summary of Public Comments and Agency Responses Related to Proposed Revisions to 19 TAC Chapter 103, Health and Safety, Subchapter DD, Commissioner's Rules Concerning Video Surveillance of Certain Special Education Settings
Comment: Two individuals commented that the definitions listed in proposed §103.1301(b) should apply to all rules implementing Texas Education Code (TEC), §29.022.
Agency Response: The agency agrees and has amended §103.1301(b) at adoption to specify that the definitions apply to the entire subchapter.
Comment: Two individuals commented that "school district" and "school board" should be defined in §103.1301(b) to include open-enrollment charter schools and their boards.
Agency Response: The agency disagrees. The language of §103.1301 appropriately addresses the requirements of TEC, §29.022, related to school districts and open-enrollment charter schools.
Comment: Two individuals commented that "video" in §103.1301(b) should be defined to include audio tracks and other video recordings.
Agency Response: The agency disagrees. The language of §103.1301 addresses audio and video recordings with sufficient specificity.
Comment: Two individuals commented that "and recordings" should be added after "cameras" in §103.1301(g) to address the deletion of the word "surveillance" from the subsection.
Agency Response: The agency disagrees. The language of §103.1301(g), particularly the word "operation," and §103.1301(g)(13), which includes the specific term "recordings," is sufficient to comply with TEC, §29.022.
Comment: Two individuals commented that required procedures to request and view video footage should be added to §103.1301(g)(7).
Agency Response: The agency disagrees. The language of §103.1301(g)(7) is sufficient to implement the pertinent requirements of TEC, §29.022.
Comment: Two individuals commented that §103.1301(g)(9) should be amended to include "student" in the singular and to expand operation of safety cameras to any time a student is present.
Agency Response: The agency agrees that the presence of a single student in a classroom or setting requires operation of a camera and has revised §103.1301(g)(9) at adoption to require operation of video cameras when one or more students are present in a self-contained classroom or other special education setting during the instructional day. However, in light of TEC, §29.022(b), the agency disagrees that operation of a camera in a classroom or special education setting should take place outside of the instructional day.
Comment: Two individuals commented that notice language required in TEC, §29.022(b), should be added to §103.1301(g) between paragraphs (11) and (12).
Agency Response: The agency disagrees with the specific request. However, the agency has amended §103.1301(g)(8) to reference the notice requirements of TEC, §29.022(b).
Comment: The Texas Classroom Teachers Association (TCTA) commented that it supported the change in subsection §103.1301(b)(2) regarding limiting the definition of "staff member" but requested that the terms "principal" and "assistant principal" be defined in subsection (b).
Agency Response: The agency agrees with the changes to the definition of "staff member." However, the agency disagrees with the comment that "principal" or "assistant principal" should be defined in the rule, as those terms reflect staff positions with specific, commonly understood titles and duties.
Comment: TCTA commented that it supported and appreciated the inclusion of the phrase "for at least 50 percent of the instructional day" in §103.1301(b)(4) and (5) and noted the alignment of the language to TEC, §29.022(a).
Agency Response: The agency agrees.
Comment: TCTA commented that it supported language in §103.1301(g)(9) that operation of video cameras is only required to take place during the instructional day when students are present and noted that the language aligned with TEC, §29.022(b).
Agency Response: The agency agrees.
Comment: TCTA commented that it supported the inclusion of language in §103.1301(g)(11) that addresses operation of video cameras "for the remainder of the school year . . . unless the requestor withdraws the request in writing" and noted that the language aligned with TEC, §29.022(b).
Agency Response: The agency agrees.
Comment: TCTA commented that the term "released and/or viewed" in §103.1301(h) should be replaced with "released for viewing" to align more closely with TEC, §29.022(i).
Agency Response: The agency disagrees and has maintained the language as proposed. The rule accurately reflects the language of TEC, §29.022(i).
Comment: TCTA commented that it supported the inclusion of the language "relating to the neglect or abuse of a student" to §103.1301(k) and noted that it aligned with TEC, §29.022(j).
Agency Response: The agency agrees.
Comment: The Texas Charter Schools Association (TCSA) commented that open-enrollment charter schools should be referenced in §103.1301(b)(9) regarding the definition of school business day.
Agency Response: The agency agrees and has amended §103.1301(b)(9) at adoption to include open-enrollment charter schools.
Comment: TCSA commented that open-enrollment charter school administrators should be referenced in §103.1301(h)(3) regarding individuals permitted to release and/or view confidential video footage.
Agency Response: The agency agrees and has amended §103.1301(h)(3) at adoption to include administrators of charter schools.
Comment: Texans for Special Education Reform (TxSER) (joined in this and all other comments submitted by TxSER regarding these proposed rules by Texas Parent to Parent, Capable Kids Foundation, National Autism Association of North Texas, Texas Democrats with Disabilities, National ARD/IEP Advocates, Autism Society of Texas, Texas Alliance for Student Rights, Moussa Autism Consulting, Not on Lil T's Watch, and one parent, collectively TxSER, et al.) first commented that it thanked the commissioner and Texas Education Agency (TEA) for addressing some of the concerns TxSER raised in response to the previous proposed revisions to 19 TAC Chapter 103.
Agency Response: The agency agrees.
Comment: TxSER, et al. commented that the word "alleged" should be added to "incident" throughout 19 TAC Chapter 103.
Agency Response: The agency disagrees. The definition of "incident" in §103.1301(b)(8) addresses this issue through its inclusion of the word "alleged" and "allegedly."
Comment: TxSER, et al. commented that the intent of TEC, §29.022, was to provide certain persons with access to view video recordings when an allegation of harm to a student or students was made and that TEA has unnecessarily restricted such access to view video recordings by using the definitions of various forms of abuse and neglect as described in the Texas Family Code, §261.001 and §261.410.
Agency Response: The agency disagrees. The definition of "incident" in §103.1301(b)(8) and its use of the Texas Family Code definitions of abuse and neglect appropriately implement TEC, §29.022.
Comment: TxSER, et al. and a business owner commented that the definition of "parent" in §103.1301(b)(1) has been expanded to include a student who is eighteen years of age or older and that such language should be removed.
Agency Response: The agency disagrees. The language at issue is currently in rule, and TEC, §29.022, was not amended in a way that contravenes the rule language.
Comment: TxSER, et al. and a business owner requested that the definition of "staff member" in §103.1301(b)(2) be expanded to include substitute personnel, volunteers, and instructional service providers.
Agency Response: The agency disagrees. The definition is sufficient to meet the requirements of TEC, §29.022, and reflects the definition in TEC, §29.022(u)(4).
Comment: TxSER, et al. and a business owner requested that the definition of "self-contained classroom" be clarified to include rooms used for occupational and physical therapy.
Agency Response: The agency disagrees. The definition is sufficient to meet the requirements of TEC, §29.022.
Comment: TxSER, et al. commented that the definition of "incident" in §103.1301(b)(8) is too narrow and, therefore, contravenes the intent of TEC, §29.022. The commenters requested that the definition be removed, expanded to include unethical behavior, or, if the definition remained, that "employee" be replaced with "staff member" in the definition.
Agency Response: The agency disagrees with removing or expanding the definition. The definition of "incident" in §103.1301(b)(8) and its use of the Texas Family Code definitions of abuse and neglect appropriately implement TEC, §29.022. However, the agency agrees that "employee" should be replaced by "staff member" and has amended §103.1301((b)(8) at adoption.
Comment: TxSER, et al. and a parent requested that §103.1301(g) include language that requires policies and procedures regarding maintenance and retention of video and audio recordings.
Agency Response: The agency disagrees. The language of §103.1301(g)(13) addresses the maintenance and retention requirements of TEC, §29.022(e-1).
Comment: TxSER, et al., Disability Rights Texas (DRTx), Texas Council for Developmental Disabilities (TCDD), and a parent commented that all policies and procedures adopted under §103.1301 and all notices required by §103.1301 and §103.1303 should be made available in Spanish and other native languages of parents.
Agency Response: While the agency agrees that providing policies, procedures, and notices in the native language of parents is a laudable goal, TEC, §29.022, does not require such action on the part of school districts, open-enrollment charter schools, or schools.
Comment: TxSER, et al. commented that TEC, §29.022(l), does not limit parental requests for video camera placement to the subsequent school year and requested that TEA amend §103.1301(g)(5) to permit placement prior to the start of the subsequent school year.
Agency Response. The agency disagrees. Section 103.1301(g)(5) accurately reflects the language of TEC, §29.022(l).
Comment: TxSER, et al. commented that §103.1301(g)(7) was unclear regarding whether the language relates to video camera placement and operation or to requests to view or release video recordings.
Agency Response: The agency disagrees. The language of §103.1301(g)(7) is inapplicable to requests to view or release video recordings.
Comment: TxSER, et al. and a parent commented that policies in Texas public schools regarding requests to view or release video recordings are lacking, and TxSER, et al. requested that §103.1301(g)(7) be amended to reflect that such policies are required.
Agency Response: The agency disagrees. TEA notes that §103.1301 does not currently include a requirement that local policies be adopted to address the requirements of TEC, §29.022(i), discussed by TxSER, et al. However, TEA has amended §103.1301(h) at adoption 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.
Comment: TxSER, et al. commented that specific notice requirements of TEC, §29.022(b), added by Senate Bill 1398, 85th Texas Legislature, Regular Session, 2017, are not included in §103.1301(g)(8) and (11) and concluded that the proposed rule, therefore, conflicts with TEC, §29.022. TxSER, et al. requested that the referenced language be added to §103.1301 and further sought clarification regarding "when a school or district must resume operation of video cameras previously installed once a request to continue surveillance has been received."
Agency Response: The agency disagrees. However, TEA has amended §103.1301(g)(8) at adoption to reference the notice requirements of TEC, §29.022(b).
Comment: TxSER, et al., as well as DRTx, commented that §103.1301(g)(9) inappropriately restricted operation of cameras to times when only multiple students are present in a self-contained classroom or other special education setting, rather than a single student. TxSER, et al. requested that the language "one or more" be placed before "students" in §103.1301(g)(9).
Agency Response: The agency agrees and has amended §103.1301(g)(9) at adoption to require operation of video cameras when one or more students are present in a self-contained classroom or other special education setting during the instructional day.
Comment: TxSER, et al. commented that the requirements of §103.1301 regarding reporting incidents are cumbersome or unduly burdensome and recommended that the rule language be streamlined to reflect its position that a parent need only meet the definition of "parent" in §103.1301(b)(1), that a student is placed in a statutorily compliant setting, and that an incident has been reported in order to report an incident. TxSER, et al. and a parent further commented that TEC, §29.022(e-1), requires that parents be involved in determinations of whether incidents have occurred but that many parents are not permitted to participate in such determinations.
Agency Response: The agency disagrees. The reporting-related elements of §103.1301 accurately reflect the requirements of TEC, §29.022. The agency also disagrees with the position that TEC, §29.022(e-1), requires that parents be involved in determinations of whether incidents have occurred.
Comment: TxSER commented separately that §103.1301 currently protects school districts more than it protects children with disabilities and that the rule should focus on the safety of children with disabilities.
Agency Response: The agency agrees that §103.1301 is intended to protect children with disabilities. TEA's position is that §103.1301 protects the safety of children with disabilities within the constraints of current, applicable law.
Comment: DRTx commented that, while it appreciated TEA's decision to consider public feedback on the proposed amendment to §103.1301 and new §103.1303 published in the December 22, 2017 issue of the Texas Register and to repropose the rules, its position was that additional stakeholder input was needed for §103.1301 and §103.1303. DRTx requested that the rules be reposted after such additional stakeholder input was provided.
Agency Response: The agency disagrees. Because TEA has already reproposed the rules, TEA considers the public hearing and comment process sufficient to address the rule amendment process for §103.1301 and the process to adopt new §103.1303.
Comment: A parent commented that her child was assaulted by school staff and that the video recording of the incident was altered. The parent urged TEA to ensure verifiable safety at school for children with disabilities.
Agency Response: The agency agrees that verifiable safety for children with disabilities in public schools is extremely important. TEC, §29.022, and §103.1301 and §103.1303 are intended to help ensure the safety of children in public schools in Texas.
Comment: An individual with disabilities who was once a public-school student commented that the rule should not be narrower than the statute and shared her personal experiences in public school as a student with a disability. She explained that the lack of a video camera could have facilitated abuse by school staff.
Agency Response: The agency agrees and has determined that §103.1301 and §103.1303 are not more narrow than TEC, §29.022, and other applicable law permit.
Comment: Two parents commented that the purpose of §103.1301 and §103.1303 is to protect the health and safety of students with disabilities.
Agency Response: The agency agrees.
Comment: A parent commented that reporting incidents under §103.1301 is challenging for nonverbal students, students with disabilities who communicate in language other than English, and for the parents of both sets of students.
Agency Response: The agency agrees.
Comment: A business owner commented that "instructional day" should be removed from §103.1301(g)(9) because activities occur outside the hours of the instructional day.
Agency Response: In light of the language of TEC, §29.022(b), the agency disagrees that operation of a camera in a classroom or special education setting should take place outside of the instructional day.
Comment: A business owner commented that notice requirements to inform parents that video surveillance will be discontinued need to be more specific.
Agency Response: The agency disagrees. Notice issues have been addressed in §103.1301.
Comment: A parent provided personal information about the treatment of the parent's child in school and commented (1) on the length of time adopting §103.1301 and §103.1303 has taken; (2) that TEA was creating barriers to the implementation of TEC, §29.022; (3) that TEA was "quietly working to undo" the statute; (4) that TEA, through the rulemaking process, was "gutting the camera law;" and (5) that TEA was "making up" rules unrelated to TEC, §29.022. The parent further commented that information regarding compliance with TEC, §29.022, should not be available only in local policy repositories but should be available in such online locations as the SPEDTex website.
Agency Response: The agency disagrees with the parents' comments regarding TEA's actions in implementing TEC, §29.022, and related rule. The agency is not creating barriers but is, instead, implementing the amendments to TEC, §29.022, with fidelity via the rulemaking process. The agency received extensive public feedback regarding the proposed rules that necessitated extensive revisions to the same rules. TEA further notes that TEC, §29.022, does not require that the local policies of Texas public schools adopted in compliance with TEC, §29.022, and its rules be made available in a central location.
Comment: TCDD commented that, regardless of the provisions of TEC, §29.022, or TEA rules, parents of children with disabilities have an independent statutory right to report alleged abuse, neglect, or exploitation to the Department of Family and Protective Services (DFPS). TCDD further commented that this fact should be mandatorily communicated in English and other appropriate languages to parents of children with disabilities.
Agency Response: The agency agrees that parents have the right to report alleged abuse, neglect, or exploitation to the DFPS. However, TEC, §29.022, does not require that its implementing rules include the requested DFPS-related notice requirement.
Comment: TCDD commented that §103.1301(a) should clarify that written requests for camera placement should be permissible in English or in languages other than English.
Agency Response: The agency disagrees. While acceptance of such written requests in languages other than English is a laudable goal, TEC, §29.022, does not require that public schools do so. Therefore, the decision regarding whether requests must be made in English only or if they may be made in other languages is one of local policy.
Comment: TCDD commented that the term "employee" should be defined in §103.1301(b) and commented that the use of the word in §103.1301(b)(8)(A) is significant.
Agency Response: The agency disagrees. However, in response to other comments, §103.1301(b)(8)(A) has been amended at adoption to replace "employee" with "staff member."
Comment: TCDD stated its approval of the requirement in §103.1301 that rooms used for time-out for students with disabilities are subject to video surveillance.
Agency Response: The agency agrees.
Comment: TCDD asked how (1) TEA differentiates time-out from seclusion; (2) TEA ensures that placement in time-out does not interfere with instructional time; and (3) TEA gathers data on the use of restraint.
Agency Response: The comment and its related questions fall outside the scope of the rulemaking process for §103.1301 and §103.1303.
Comment: TCDD commented in connection with §103.1301(g)(13) that the minimum time to retain video recordings should be longer than three months in light of the reluctance of students with disabilities to communicate about incidents of abuse or neglect.
Agency Response: The agency disagrees. TEA's rule cannot contravene the video recording retention provisions of TEC, §29.022(e).
Comment: TxSER, et al. commented that TEA has failed to provide recourse for parents who are denied the ability to view a recording after receipt of express denial or who are effectively denied a viewing because the school district or charter school has failed to act on a request.
Agency Response: The agency agrees. Language has been added in §103.1303(a) at adoption to specify that one may appeal a constructive denial that occurs when a school district fails to issue a timely denial of a request.
Comment: TxSER, et al. and three other commenters objected to combining regular and expedited processes in one section and stated that it is hard to determine whether a provision applies to the regular or expedited review.
Agency Response: The agency disagrees. Having both the regular and the expedited process in one section is not inherently confusing. An individual may not know which process to use and may first plan to use the regular process and then decide to use the expedited process. Putting both options in one section can clarify the available options.
Comment: TxSER, et al., TCDD, and three other commenters stated that the appeal process is confusing and not easily accessed by parents without legal counsel.
Agency Response: The agency disagrees. The process as created by the Texas Legislature has multiple parts and gives parents options as to how to present a case. It addresses a school district's failure to install cameras. It addresses a school district's failure to grant access to video. It addresses a school district's request for an extension of time. It allows for a regular and an expedited process. It requires notification of all interested parties. A process to provide for a fair hearing as to all interested parties concerning all of these options will have some complexity. However, the process outlined in these rules is accessible to parents and is intended to be as clear as possible. As in most contested legal matters, legal counsel could be helpful, but it is not required.
Comment: TxSER, et al. commented that §103.1303(a) only concerns the denial of a request to release a video and does not concern the denial of a request to view a video.
Agency Response: The agency agrees in part. The first sentence of TEC, §29.022(i), refers to both releasing and viewing a video. A requestor could seek either to view a video or to have the video released. However, TEC, §29.022(m)(3), allows an expedited appeal of a decision not to release a video, but does not allow for an expedited appeal of a decision not to allow a person to view a video. Section §103.1303(a) was modified at adoption to address the denial of a request to view a video, and §103.1303(b)(7)(A) was modified at adoption to specify that the expedited review process does not apply to a request to only view a video.
Comment: TxSER, et al. and three other commenters objected that proposed §103.1303(b)(6)(B), relettered as §103.1303(b)(7)(B) at adoption, violates TEC, §29.022(n), by requiring parents to identify interested parties and notify them of a request for expedited review. The commenters stated that, while the district knows the interested parties, the parents do not.
Agency Response: The agency agrees in part. The commenters are correct that under TEC, §29.022(n), the agency is to notify interested parties of a request for expedited review. Changes were made at adoption in §103.1303(b)(7)(B) and (D) 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 §103.1303(b)(7)(E) stating that the agency will notify interested parties of a request for expedited review. However, TEC, §29.022(n), does not prohibit parents from identifying interested parties. The sooner interested parties are identified, the less time the process will take. Language was added to §103.1303(b)(7)(E) at adoption 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.
Comment: TxSER, et al. stated that, under §103.1303(b)(1), it is unnecessary to require the exhaustion of remedies through the school district's grievance process and recommended tolling the school district's grievance process when an expedited review is sought.
Agency Response: The agency disagrees. A school board's grievance process is an option for parents and employees as specified in TEC, §29.022(l)(1), which identifies the appeal process under TEC, §7.057, as being available to parents. This process requires the exhaustion of remedies before a school district before an issue can be brought to the commissioner. School districts are rightly given the first opportunity to solve school district problems, and many problems can be solved without the need to involve the commissioner. Tolling a school district's grievance process when an expedited review is requested would increase the time before a final decision could be issued under a request for expedited review. This would slow down the expedited review process.
Comment: TxSER, et al. requested that the phrase "and school district policy" be removed from §103.1303(b)(3) because this is not authorized by statute and because TEC, §29.022(a-1) and (a-3), provide all that is necessary.
Agency Response: The agency agrees and has removed the phrase at adoption. TEC, §29.022(a-1) and (a-3), sufficiently describe the request. There is no need to add the words "and school district policy."
Comment: TxSER, et al. objected that the process described in §103.1303(b)(6) is not expeditious and requested that specific deadlines be provided.
Agency Response: The agency disagrees. Such factors as the complexity of the dispute, a possible need for an in-camera inspection, and the number of interested parties make it difficult to create a one-size-fits-all timeline.
Comment: TxSER, et al. objected that, under proposed §103.1303(b)(6)(A), relettered as §103.1303(b)(7)(A) at adoption, the expedited review process is limited to the local record established during the school grievance level and there is no way to expand or supplement the local record.
Agency Response: The agency disagrees. The commissioner's initial determination is not at all based on the local record of a grievance. The facts alleged in the briefing and shown by attached documents are used to make the initial determination, as specified in §103.1303(b)(7)(F). The final determination is based on the local record. However, concerning the final determination, the local record can be supplemented by using the procedures found in 19 TAC §157.1073(f).
Comment: TxSER, et al. objected that proposed §103.1303(b)(6)(C), relettered as §103.1303(b)(7)(C) at adoption, does not allow filing with the commissioner earlier than 14 days after a request is denied by a school district and argued that this creates an unnecessary delay.
Agency Response: The agency disagrees. Allowing a district to attempt to solve a dispute for two weeks before starting the expedited review process is not an unnecessary delay. It gives a school district a reasonable opportunity to resolve a dispute.
Comment: TxSER, et al. objected that, because proposed §103.1303(b)(6)(I), relettered as §103.1303(b)(7)(I) at adoption, allows briefing as to issues not raised in the pleadings, it opens the door to briefing issues that are not relevant. The commenters requested that briefing be limited to issues raised in the pleadings.
Agency Response: The agency disagrees. Whether briefing is limited to issues raised in the pleadings, a party may choose to brief matters that are not relevant. This unfortunately happens even when briefing is limited by rule to issues pled. Mostly this happens because of good faith beliefs as to what is relevant. Briefing matters that are not relevant is not an effective strategy. It is not likely to be done intentionally. Allowing briefing as to issues not raised in the pleadings should assist those not familiar with legal processes. Often issues are dismissed and not considered because they were not properly pled.
Comment: TxSER, et al. requested that pleadings be limited specifically to issues related to the placement, operation, and maintenance of video cameras as well as the retention, viewing, and release of video recordings.
Agency Response: The agency disagrees. In accordance with TEC, §29.022(m), when the expedited process is used, the major issues to be considered in an expedited appeal are the denial of a request for the placement of cameras, the denial of request that a video be released for viewing, and the request from a school district for an extension of time to install cameras. There is no need to create a list of subsidiary issues in the rule.
Comment: TxSER, et al. requested that, if additional issues are raised in the briefings, reply briefs be allowed to address the new issues.
Agency Response: The agency agrees that reply briefs should be allowed. Reply briefs are allowed under §103.1303(b)(7)(I). No change to the rule is needed.
Comment: TxSER, et al. requested that, in proposed §103.1303(b)(6)(J), relettered as §103.1303(b)(7)(J) at adoption, there should be deadlines for the issuance of the commissioner's preliminary judgment and for the school district to fully comply with the judgment.
Agency Response: The agency disagrees. While the agency recognizes the need for an expeditious resolution of disputes, a one-size-fits-all approach does not recognize the complexity of particular cases.
Comment: TxSER, et al. argued that compliance with the preliminary judgment as to an expedited review be ongoing while a final resolution is sought through all appeal levels, including an appeal to district court.
Agency Response: The agency disagrees as to the need to make a change to the proposed rule. The agency agrees that, when a preliminary judgment is issued because it is determined that the school district is not likely to prevail, the school district must fully comply with the order, as this is required by TEC, §29.022(o). However, the agency's final judgment might conclude that the school district prevails. In that case, the school district would have to comply with the preliminary judgment until there was a final judgment. If a school district were to appeal a preliminary judgment to district court, the statute indicates that the school district would have to comply to the agency's order. However, it is not the commissioner's role to make rules directing the courts. The judiciary is a coequal branch of government.
Comment: TxSER, et al. and three other commenters stated that the expedited process is not sufficiently expedited.
Agency Response: The agency disagrees. The expedited process is sufficiently expedited, particularly when compared to the regular process. The regular process for resolving a dispute is through a school district's grievance process. After completing a school district's grievance process, if a parent believes a school district has violated the Texas Education Code, the next step is an appeal to the commissioner under TEC, §7.057, which is specifically referenced in TEC, §29.022(l)(1). The statutory timeline for a commissioner's decision in a case against a school district is 240 days in accordance with TEC, §7.057(c). The expedited process is considerably quicker than the regular process. The expedited process ensures that all interested persons have a say in the adjudicative process. Reducing the time periods under the expedited process would impact the fairness of the proceedings.
Comment: The Texas Counsel of Administrators of Special Education (TCASE), TASA, TASB, TCSA, and three other commenters stated that the rules should allow for a charter school to request an extension of time.
Agency Response: The agency agrees in part. Either a school district or a charter school can request an extension of time in accordance with TEC, §29.022(l)(3) and (5). The commenters are correct that there should be a process for charter schools to request an extension of time. However, as the current proposed appeal rule does not affect charter schools, the commissioner could not adopt rules that governed charter schools without first proposing said rules and allowing for public comment. Proposed rules concerning a charter school's request for an extension of time under §103.1303 may possibly be addressed at a later date.
Comment: TCASE, TASA, and TASB stated that the term "days" should always refer to school business days because of school breaks and because of confusion that may result without clarification.
Agency Response: The agency disagrees. The process is meant to be expeditious. To allow for holidays and summer break to interrupt the process would make the process significantly less expeditious.
Comment: TCASE, TASA, and TASB pointed out that the first sentence of proposed §103.1303(b)(3) applies only to the denial of a request for placement, and the second sentence applies to both a denial of a request for placement and to the releasing of a video. They argued that this is confusing.
Agency Response: The agency agrees. A change was made at adoption to move the second sentence of §103.1303(b)(3) into new paragraph (4).
Comment: TCASE, TASA, and TASB stated that the cost of releasing a video should be considered by the commissioner. They noted that TEC, §29.022(h), prohibits regular or continual monitoring of video and argued that the costs to districts could be significant.
Agency Response: The agency disagrees. While costs may at times be significant, TEC, §29.022(i) requires that a school district shall release for viewing a recording when an alleged incident is documented in a recording and when there is a DFPS investigation. A video is to be released when there is an alleged incident. An incident is defined in 19 TAC §103.1301(b)(8) to be abuse and neglect as defined in the Texas Family Code, Chapter 261. A serious allegation must be made prior to the release of a video, and the alleged incident must be documented in the recording. Because of these requirements, requests to continuously monitor a classroom most likely will be denied.
Comment: TCASE, TASA, and TASB stated that a video should not be allowed to be viewed because of a preliminary judgment, because a final judgment could conclude that the video should not be viewed and, once viewed, there is no way to undo a viewing.
Agency Response: The agency disagrees. TEC, §29.022(o), provides that, if the agency determines that the district is not likely to prevail, the district must comply with TEC, §29.022, notwithstanding an appeal of the agency's decision.
Comment: TCSA and three other commenters stated that the rules should allow appeals against open-enrollment charter schools concerning the denial of a request for the placement of cameras or the denial for the release or viewing of a video under TEC, §7.057.
Agency Response: The agency disagrees. The general process to appeal a violation of the school laws of this state, which include TEC, §29.022, is found at TEC, §7.057. However, TEC, §7.057, does not apply to charter schools. TEC, §29.022, does not give the commissioner the authority to expand the commissioner's jurisdiction under TEC, §7.057, to include charter schools. The Texas Legislature, in TEC, §29.022(p), has required the commissioner to adopt rules concerning expedited review for school district actions, but has given the commissioner the option of adopting rules concerning expedited review for charter schools. After reviewing how these rules for expedited review have worked for school districts, a decision may be made whether to extend expedited review to charter schools.
Comment: TCSA stated that the procedures should be simplified. TCSA objected to requiring parents and school personnel to file briefs, allowing briefing outside the pleadings, and recommending legal citations.
Agency Response: The agency disagrees. Briefing is how a party explains why the commissioner should rule in a party's favor. Legal citations are recommended in the rule because the commissioner is to determine legal issues. Briefing outside of the pleadings can benefit those not well versed in the legal process. In legal proceedings, arguments are often dismissed because they have not been pled. The commissioner is to be a neutral decisionmaker in the appeal process. Hence, the commissioner can only decide what the parties bring. The commissioner is not to make the argument for either party. Each party needs to make its own arguments through briefing.
Comment: TCDD stated that parents should be notified that they can report abuse or neglect without going through these rules.
Agency Response: The agency disagrees. Section 103.1301 and §103.1303 are about the installation of cameras and the release and viewing of videos. It is not likely that anyone would believe that she or he had to go through these rules before reporting abuse or neglect.
Comment: TCDD stated that it is unnecessary to use TEC, §7.057, procedures in the expedited review process under proposed §103.1303(b)(6), relettered as §103.1303(b)(7) at adoption.
Agency Response: The agency disagrees. The only way to allow for an appeal of a Commissioner's Decision to the courts is to bring the commissioner's review under TEC, §7.057. TEC, §29.022, itself does not allow for such an appeal. Further, school districts know how to conduct grievance hearings as to other matters that may be appealed to the commissioner. Holding a grievance hearing at the school district is superior to having all interested parties travel to Austin.
Comment: TCDD commented that TEA should provide a copy of §§157.1052(b), 157.1073(d), 157.1059, 157.1061, and 157.1073(e)-(h), as referenced in proposed §103.1303(b)(6), to parents.
Agency Response: The agency agrees. The rules at issue are on the TEA website at http://ritter.tea.state.tx.us/rules/tac/chapter157/index.html, and hard copies can be provided to all interested parties to a case.
Comment: TCDD noted that TEC, §29.022(i), uses the phrase "released for viewing" and argued that several subsections that use the phrase "release a video" should be amended to use the phrase "release a video for viewing." Also, TCDD noted that proposed §103.1303(b)(4), relettered as §103.1303(b)(5) at adoption, should be amended to read, "the commissioner will determine whether the requestor is a person allowed to view a released video."
Agency Response: The agency disagrees. The only purpose for requesting a video is to view the video. There is no need to specify that a video is to be released for viewing.
Comment: TCDD and several other commenters stated that timelines should be created for the school district grievance process.
Agency Response: The agency disagrees. The comment falls outside the scope of the rulemaking process for §103.1301 and §103.1303.
Comment: A commenter stated that too much time is given for a school district to request an extension of time to install a camera. The commenter noted that the 45th school business day is the statutory deadline for installing cameras.
Agency Response: The agency disagrees in part. TEC, §29.022(l)(5), states that the timeline for installing cameras is the 10th day of the fall semester or the 45th school business day, whichever is later. However, language was modified at adoption in §103.1303(c)(1) to specify that a school district should request an extension when it knows that it will not be able to timely install the camera.
Summary of Public Comments and Agency Responses Related to Proposed Revisions to 19 TAC Chapter 103, Health and Safety, Subchapter DD, Commissioner's Rules Concerning Video Surveillance of Certain Special Education Settings
Comment: Two individuals commented that the definitions listed in proposed §103.1301(b) should apply to all rules implementing Texas Education Code (TEC), §29.022.
Agency Response: The agency agrees and has amended §103.1301(b) at adoption to specify that the definitions apply to the entire subchapter.
Comment: Two individuals commented that "school district" and "school board" should be defined in §103.1301(b) to include open-enrollment charter schools and their boards.
Agency Response: The agency disagrees. The language of §103.1301 appropriately addresses the requirements of TEC, §29.022, related to school districts and open-enrollment charter schools.
Comment: Two individuals commented that "video" in §103.1301(b) should be defined to include audio tracks and other video recordings.
Agency Response: The agency disagrees. The language of §103.1301 addresses audio and video recordings with sufficient specificity.
Comment: Two individuals commented that "and recordings" should be added after "cameras" in §103.1301(g) to address the deletion of the word "surveillance" from the subsection.
Agency Response: The agency disagrees. The language of §103.1301(g), particularly the word "operation," and §103.1301(g)(13), which includes the specific term "recordings," is sufficient to comply with TEC, §29.022.
Comment: Two individuals commented that required procedures to request and view video footage should be added to §103.1301(g)(7).
Agency Response: The agency disagrees. The language of §103.1301(g)(7) is sufficient to implement the pertinent requirements of TEC, §29.022.
Comment: Two individuals commented that §103.1301(g)(9) should be amended to include "student" in the singular and to expand operation of safety cameras to any time a student is present.
Agency Response: The agency agrees that the presence of a single student in a classroom or setting requires operation of a camera and has revised §103.1301(g)(9) at adoption to require operation of video cameras when one or more students are present in a self-contained classroom or other special education setting during the instructional day. However, in light of TEC, §29.022(b), the agency disagrees that operation of a camera in a classroom or special education setting should take place outside of the instructional day.
Comment: Two individuals commented that notice language required in TEC, §29.022(b), should be added to §103.1301(g) between paragraphs (11) and (12).
Agency Response: The agency disagrees with the specific request. However, the agency has amended §103.1301(g)(8) to reference the notice requirements of TEC, §29.022(b).
Comment: The Texas Classroom Teachers Association (TCTA) commented that it supported the change in subsection §103.1301(b)(2) regarding limiting the definition of "staff member" but requested that the terms "principal" and "assistant principal" be defined in subsection (b).
Agency Response: The agency agrees with the changes to the definition of "staff member." However, the agency disagrees with the comment that "principal" or "assistant principal" should be defined in the rule, as those terms reflect staff positions with specific, commonly understood titles and duties.
Comment: TCTA commented that it supported and appreciated the inclusion of the phrase "for at least 50 percent of the instructional day" in §103.1301(b)(4) and (5) and noted the alignment of the language to TEC, §29.022(a).
Agency Response: The agency agrees.
Comment: TCTA commented that it supported language in §103.1301(g)(9) that operation of video cameras is only required to take place during the instructional day when students are present and noted that the language aligned with TEC, §29.022(b).
Agency Response: The agency agrees.
Comment: TCTA commented that it supported the inclusion of language in §103.1301(g)(11) that addresses operation of video cameras "for the remainder of the school year . . . unless the requestor withdraws the request in writing" and noted that the language aligned with TEC, §29.022(b).
Agency Response: The agency agrees.
Comment: TCTA commented that the term "released and/or viewed" in §103.1301(h) should be replaced with "released for viewing" to align more closely with TEC, §29.022(i).
Agency Response: The agency disagrees and has maintained the language as proposed. The rule accurately reflects the language of TEC, §29.022(i).
Comment: TCTA commented that it supported the inclusion of the language "relating to the neglect or abuse of a student" to §103.1301(k) and noted that it aligned with TEC, §29.022(j).
Agency Response: The agency agrees.
Comment: The Texas Charter Schools Association (TCSA) commented that open-enrollment charter schools should be referenced in §103.1301(b)(9) regarding the definition of school business day.
Agency Response: The agency agrees and has amended §103.1301(b)(9) at adoption to include open-enrollment charter schools.
Comment: TCSA commented that open-enrollment charter school administrators should be referenced in §103.1301(h)(3) regarding individuals permitted to release and/or view confidential video footage.
Agency Response: The agency agrees and has amended §103.1301(h)(3) at adoption to include administrators of charter schools.
Comment: Texans for Special Education Reform (TxSER) (joined in this and all other comments submitted by TxSER regarding these proposed rules by Texas Parent to Parent, Capable Kids Foundation, National Autism Association of North Texas, Texas Democrats with Disabilities, National ARD/IEP Advocates, Autism Society of Texas, Texas Alliance for Student Rights, Moussa Autism Consulting, Not on Lil T's Watch, and one parent, collectively TxSER, et al.) first commented that it thanked the commissioner and Texas Education Agency (TEA) for addressing some of the concerns TxSER raised in response to the previous proposed revisions to 19 TAC Chapter 103.
Agency Response: The agency agrees.
Comment: TxSER, et al. commented that the word "alleged" should be added to "incident" throughout 19 TAC Chapter 103.
Agency Response: The agency disagrees. The definition of "incident" in §103.1301(b)(8) addresses this issue through its inclusion of the word "alleged" and "allegedly."
Comment: TxSER, et al. commented that the intent of TEC, §29.022, was to provide certain persons with access to view video recordings when an allegation of harm to a student or students was made and that TEA has unnecessarily restricted such access to view video recordings by using the definitions of various forms of abuse and neglect as described in the Texas Family Code, §261.001 and §261.410.
Agency Response: The agency disagrees. The definition of "incident" in §103.1301(b)(8) and its use of the Texas Family Code definitions of abuse and neglect appropriately implement TEC, §29.022.
Comment: TxSER, et al. and a business owner commented that the definition of "parent" in §103.1301(b)(1) has been expanded to include a student who is eighteen years of age or older and that such language should be removed.
Agency Response: The agency disagrees. The language at issue is currently in rule, and TEC, §29.022, was not amended in a way that contravenes the rule language.
Comment: TxSER, et al. and a business owner requested that the definition of "staff member" in §103.1301(b)(2) be expanded to include substitute personnel, volunteers, and instructional service providers.
Agency Response: The agency disagrees. The definition is sufficient to meet the requirements of TEC, §29.022, and reflects the definition in TEC, §29.022(u)(4).
Comment: TxSER, et al. and a business owner requested that the definition of "self-contained classroom" be clarified to include rooms used for occupational and physical therapy.
Agency Response: The agency disagrees. The definition is sufficient to meet the requirements of TEC, §29.022.
Comment: TxSER, et al. commented that the definition of "incident" in §103.1301(b)(8) is too narrow and, therefore, contravenes the intent of TEC, §29.022. The commenters requested that the definition be removed, expanded to include unethical behavior, or, if the definition remained, that "employee" be replaced with "staff member" in the definition.
Agency Response: The agency disagrees with removing or expanding the definition. The definition of "incident" in §103.1301(b)(8) and its use of the Texas Family Code definitions of abuse and neglect appropriately implement TEC, §29.022. However, the agency agrees that "employee" should be replaced by "staff member" and has amended §103.1301((b)(8) at adoption.
Comment: TxSER, et al. and a parent requested that §103.1301(g) include language that requires policies and procedures regarding maintenance and retention of video and audio recordings.
Agency Response: The agency disagrees. The language of §103.1301(g)(13) addresses the maintenance and retention requirements of TEC, §29.022(e-1).
Comment: TxSER, et al., Disability Rights Texas (DRTx), Texas Council for Developmental Disabilities (TCDD), and a parent commented that all policies and procedures adopted under §103.1301 and all notices required by §103.1301 and §103.1303 should be made available in Spanish and other native languages of parents.
Agency Response: While the agency agrees that providing policies, procedures, and notices in the native language of parents is a laudable goal, TEC, §29.022, does not require such action on the part of school districts, open-enrollment charter schools, or schools.
Comment: TxSER, et al. commented that TEC, §29.022(l), does not limit parental requests for video camera placement to the subsequent school year and requested that TEA amend §103.1301(g)(5) to permit placement prior to the start of the subsequent school year.
Agency Response. The agency disagrees. Section 103.1301(g)(5) accurately reflects the language of TEC, §29.022(l).
Comment: TxSER, et al. commented that §103.1301(g)(7) was unclear regarding whether the language relates to video camera placement and operation or to requests to view or release video recordings.
Agency Response: The agency disagrees. The language of §103.1301(g)(7) is inapplicable to requests to view or release video recordings.
Comment: TxSER, et al. and a parent commented that policies in Texas public schools regarding requests to view or release video recordings are lacking, and TxSER, et al. requested that §103.1301(g)(7) be amended to reflect that such policies are required.
Agency Response: The agency disagrees. TEA notes that §103.1301 does not currently include a requirement that local policies be adopted to address the requirements of TEC, §29.022(i), discussed by TxSER, et al. However, TEA has amended §103.1301(h) at adoption 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.
Comment: TxSER, et al. commented that specific notice requirements of TEC, §29.022(b), added by Senate Bill 1398, 85th Texas Legislature, Regular Session, 2017, are not included in §103.1301(g)(8) and (11) and concluded that the proposed rule, therefore, conflicts with TEC, §29.022. TxSER, et al. requested that the referenced language be added to §103.1301 and further sought clarification regarding "when a school or district must resume operation of video cameras previously installed once a request to continue surveillance has been received."
Agency Response: The agency disagrees. However, TEA has amended §103.1301(g)(8) at adoption to reference the notice requirements of TEC, §29.022(b).
Comment: TxSER, et al., as well as DRTx, commented that §103.1301(g)(9) inappropriately restricted operation of cameras to times when only multiple students are present in a self-contained classroom or other special education setting, rather than a single student. TxSER, et al. requested that the language "one or more" be placed before "students" in §103.1301(g)(9).
Agency Response: The agency agrees and has amended §103.1301(g)(9) at adoption to require operation of video cameras when one or more students are present in a self-contained classroom or other special education setting during the instructional day.
Comment: TxSER, et al. commented that the requirements of §103.1301 regarding reporting incidents are cumbersome or unduly burdensome and recommended that the rule language be streamlined to reflect its position that a parent need only meet the definition of "parent" in §103.1301(b)(1), that a student is placed in a statutorily compliant setting, and that an incident has been reported in order to report an incident. TxSER, et al. and a parent further commented that TEC, §29.022(e-1), requires that parents be involved in determinations of whether incidents have occurred but that many parents are not permitted to participate in such determinations.
Agency Response: The agency disagrees. The reporting-related elements of §103.1301 accurately reflect the requirements of TEC, §29.022. The agency also disagrees with the position that TEC, §29.022(e-1), requires that parents be involved in determinations of whether incidents have occurred.
Comment: TxSER commented separately that §103.1301 currently protects school districts more than it protects children with disabilities and that the rule should focus on the safety of children with disabilities.
Agency Response: The agency agrees that §103.1301 is intended to protect children with disabilities. TEA's position is that §103.1301 protects the safety of children with disabilities within the constraints of current, applicable law.
Comment: DRTx commented that, while it appreciated TEA's decision to consider public feedback on the proposed amendment to §103.1301 and new §103.1303 published in the December 22, 2017 issue of the Texas Register and to repropose the rules, its position was that additional stakeholder input was needed for §103.1301 and §103.1303. DRTx requested that the rules be reposted after such additional stakeholder input was provided.
Agency Response: The agency disagrees. Because TEA has already reproposed the rules, TEA considers the public hearing and comment process sufficient to address the rule amendment process for §103.1301 and the process to adopt new §103.1303.
Comment: A parent commented that her child was assaulted by school staff and that the video recording of the incident was altered. The parent urged TEA to ensure verifiable safety at school for children with disabilities.
Agency Response: The agency agrees that verifiable safety for children with disabilities in public schools is extremely important. TEC, §29.022, and §103.1301 and §103.1303 are intended to help ensure the safety of children in public schools in Texas.
Comment: An individual with disabilities who was once a public-school student commented that the rule should not be narrower than the statute and shared her personal experiences in public school as a student with a disability. She explained that the lack of a video camera could have facilitated abuse by school staff.
Agency Response: The agency agrees and has determined that §103.1301 and §103.1303 are not more narrow than TEC, §29.022, and other applicable law permit.
Comment: Two parents commented that the purpose of §103.1301 and §103.1303 is to protect the health and safety of students with disabilities.
Agency Response: The agency agrees.
Comment: A parent commented that reporting incidents under §103.1301 is challenging for nonverbal students, students with disabilities who communicate in language other than English, and for the parents of both sets of students.
Agency Response: The agency agrees.
Comment: A business owner commented that "instructional day" should be removed from §103.1301(g)(9) because activities occur outside the hours of the instructional day.
Agency Response: In light of the language of TEC, §29.022(b), the agency disagrees that operation of a camera in a classroom or special education setting should take place outside of the instructional day.
Comment: A business owner commented that notice requirements to inform parents that video surveillance will be discontinued need to be more specific.
Agency Response: The agency disagrees. Notice issues have been addressed in §103.1301.
Comment: A parent provided personal information about the treatment of the parent's child in school and commented (1) on the length of time adopting §103.1301 and §103.1303 has taken; (2) that TEA was creating barriers to the implementation of TEC, §29.022; (3) that TEA was "quietly working to undo" the statute; (4) that TEA, through the rulemaking process, was "gutting the camera law;" and (5) that TEA was "making up" rules unrelated to TEC, §29.022. The parent further commented that information regarding compliance with TEC, §29.022, should not be available only in local policy repositories but should be available in such online locations as the SPEDTex website.
Agency Response: The agency disagrees with the parents' comments regarding TEA's actions in implementing TEC, §29.022, and related rule. The agency is not creating barriers but is, instead, implementing the amendments to TEC, §29.022, with fidelity via the rulemaking process. The agency received extensive public feedback regarding the proposed rules that necessitated extensive revisions to the same rules. TEA further notes that TEC, §29.022, does not require that the local policies of Texas public schools adopted in compliance with TEC, §29.022, and its rules be made available in a central location.
Comment: TCDD commented that, regardless of the provisions of TEC, §29.022, or TEA rules, parents of children with disabilities have an independent statutory right to report alleged abuse, neglect, or exploitation to the Department of Family and Protective Services (DFPS). TCDD further commented that this fact should be mandatorily communicated in English and other appropriate languages to parents of children with disabilities.
Agency Response: The agency agrees that parents have the right to report alleged abuse, neglect, or exploitation to the DFPS. However, TEC, §29.022, does not require that its implementing rules include the requested DFPS-related notice requirement.
Comment: TCDD commented that §103.1301(a) should clarify that written requests for camera placement should be permissible in English or in languages other than English.
Agency Response: The agency disagrees. While acceptance of such written requests in languages other than English is a laudable goal, TEC, §29.022, does not require that public schools do so. Therefore, the decision regarding whether requests must be made in English only or if they may be made in other languages is one of local policy.
Comment: TCDD commented that the term "employee" should be defined in §103.1301(b) and commented that the use of the word in §103.1301(b)(8)(A) is significant.
Agency Response: The agency disagrees. However, in response to other comments, §103.1301(b)(8)(A) has been amended at adoption to replace "employee" with "staff member."
Comment: TCDD stated its approval of the requirement in §103.1301 that rooms used for time-out for students with disabilities are subject to video surveillance.
Agency Response: The agency agrees.
Comment: TCDD asked how (1) TEA differentiates time-out from seclusion; (2) TEA ensures that placement in time-out does not interfere with instructional time; and (3) TEA gathers data on the use of restraint.
Agency Response: The comment and its related questions fall outside the scope of the rulemaking process for §103.1301 and §103.1303.
Comment: TCDD commented in connection with §103.1301(g)(13) that the minimum time to retain video recordings should be longer than three months in light of the reluctance of students with disabilities to communicate about incidents of abuse or neglect.
Agency Response: The agency disagrees. TEA's rule cannot contravene the video recording retention provisions of TEC, §29.022(e).
Comment: TxSER, et al. commented that TEA has failed to provide recourse for parents who are denied the ability to view a recording after receipt of express denial or who are effectively denied a viewing because the school district or charter school has failed to act on a request.
Agency Response: The agency agrees. Language has been added in §103.1303(a) at adoption to specify that one may appeal a constructive denial that occurs when a school district fails to issue a timely denial of a request.
Comment: TxSER, et al. and three other commenters objected to combining regular and expedited processes in one section and stated that it is hard to determine whether a provision applies to the regular or expedited review.
Agency Response: The agency disagrees. Having both the regular and the expedited process in one section is not inherently confusing. An individual may not know which process to use and may first plan to use the regular process and then decide to use the expedited process. Putting both options in one section can clarify the available options.
Comment: TxSER, et al., TCDD, and three other commenters stated that the appeal process is confusing and not easily accessed by parents without legal counsel.
Agency Response: The agency disagrees. The process as created by the Texas Legislature has multiple parts and gives parents options as to how to present a case. It addresses a school district's failure to install cameras. It addresses a school district's failure to grant access to video. It addresses a school district's request for an extension of time. It allows for a regular and an expedited process. It requires notification of all interested parties. A process to provide for a fair hearing as to all interested parties concerning all of these options will have some complexity. However, the process outlined in these rules is accessible to parents and is intended to be as clear as possible. As in most contested legal matters, legal counsel could be helpful, but it is not required.
Comment: TxSER, et al. commented that §103.1303(a) only concerns the denial of a request to release a video and does not concern the denial of a request to view a video.
Agency Response: The agency agrees in part. The first sentence of TEC, §29.022(i), refers to both releasing and viewing a video. A requestor could seek either to view a video or to have the video released. However, TEC, §29.022(m)(3), allows an expedited appeal of a decision not to release a video, but does not allow for an expedited appeal of a decision not to allow a person to view a video. Section §103.1303(a) was modified at adoption to address the denial of a request to view a video, and §103.1303(b)(7)(A) was modified at adoption to specify that the expedited review process does not apply to a request to only view a video.
Comment: TxSER, et al. and three other commenters objected that proposed §103.1303(b)(6)(B), relettered as §103.1303(b)(7)(B) at adoption, violates TEC, §29.022(n), by requiring parents to identify interested parties and notify them of a request for expedited review. The commenters stated that, while the district knows the interested parties, the parents do not.
Agency Response: The agency agrees in part. The commenters are correct that under TEC, §29.022(n), the agency is to notify interested parties of a request for expedited review. Changes were made at adoption in §103.1303(b)(7)(B) and (D) 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 §103.1303(b)(7)(E) stating that the agency will notify interested parties of a request for expedited review. However, TEC, §29.022(n), does not prohibit parents from identifying interested parties. The sooner interested parties are identified, the less time the process will take. Language was added to §103.1303(b)(7)(E) at adoption 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.
Comment: TxSER, et al. stated that, under §103.1303(b)(1), it is unnecessary to require the exhaustion of remedies through the school district's grievance process and recommended tolling the school district's grievance process when an expedited review is sought.
Agency Response: The agency disagrees. A school board's grievance process is an option for parents and employees as specified in TEC, §29.022(l)(1), which identifies the appeal process under TEC, §7.057, as being available to parents. This process requires the exhaustion of remedies before a school district before an issue can be brought to the commissioner. School districts are rightly given the first opportunity to solve school district problems, and many problems can be solved without the need to involve the commissioner. Tolling a school district's grievance process when an expedited review is requested would increase the time before a final decision could be issued under a request for expedited review. This would slow down the expedited review process.
Comment: TxSER, et al. requested that the phrase "and school district policy" be removed from §103.1303(b)(3) because this is not authorized by statute and because TEC, §29.022(a-1) and (a-3), provide all that is necessary.
Agency Response: The agency agrees and has removed the phrase at adoption. TEC, §29.022(a-1) and (a-3), sufficiently describe the request. There is no need to add the words "and school district policy."
Comment: TxSER, et al. objected that the process described in §103.1303(b)(6) is not expeditious and requested that specific deadlines be provided.
Agency Response: The agency disagrees. Such factors as the complexity of the dispute, a possible need for an in-camera inspection, and the number of interested parties make it difficult to create a one-size-fits-all timeline.
Comment: TxSER, et al. objected that, under proposed §103.1303(b)(6)(A), relettered as §103.1303(b)(7)(A) at adoption, the expedited review process is limited to the local record established during the school grievance level and there is no way to expand or supplement the local record.
Agency Response: The agency disagrees. The commissioner's initial determination is not at all based on the local record of a grievance. The facts alleged in the briefing and shown by attached documents are used to make the initial determination, as specified in §103.1303(b)(7)(F). The final determination is based on the local record. However, concerning the final determination, the local record can be supplemented by using the procedures found in 19 TAC §157.1073(f).
Comment: TxSER, et al. objected that proposed §103.1303(b)(6)(C), relettered as §103.1303(b)(7)(C) at adoption, does not allow filing with the commissioner earlier than 14 days after a request is denied by a school district and argued that this creates an unnecessary delay.
Agency Response: The agency disagrees. Allowing a district to attempt to solve a dispute for two weeks before starting the expedited review process is not an unnecessary delay. It gives a school district a reasonable opportunity to resolve a dispute.
Comment: TxSER, et al. objected that, because proposed §103.1303(b)(6)(I), relettered as §103.1303(b)(7)(I) at adoption, allows briefing as to issues not raised in the pleadings, it opens the door to briefing issues that are not relevant. The commenters requested that briefing be limited to issues raised in the pleadings.
Agency Response: The agency disagrees. Whether briefing is limited to issues raised in the pleadings, a party may choose to brief matters that are not relevant. This unfortunately happens even when briefing is limited by rule to issues pled. Mostly this happens because of good faith beliefs as to what is relevant. Briefing matters that are not relevant is not an effective strategy. It is not likely to be done intentionally. Allowing briefing as to issues not raised in the pleadings should assist those not familiar with legal processes. Often issues are dismissed and not considered because they were not properly pled.
Comment: TxSER, et al. requested that pleadings be limited specifically to issues related to the placement, operation, and maintenance of video cameras as well as the retention, viewing, and release of video recordings.
Agency Response: The agency disagrees. In accordance with TEC, §29.022(m), when the expedited process is used, the major issues to be considered in an expedited appeal are the denial of a request for the placement of cameras, the denial of request that a video be released for viewing, and the request from a school district for an extension of time to install cameras. There is no need to create a list of subsidiary issues in the rule.
Comment: TxSER, et al. requested that, if additional issues are raised in the briefings, reply briefs be allowed to address the new issues.
Agency Response: The agency agrees that reply briefs should be allowed. Reply briefs are allowed under §103.1303(b)(7)(I). No change to the rule is needed.
Comment: TxSER, et al. requested that, in proposed §103.1303(b)(6)(J), relettered as §103.1303(b)(7)(J) at adoption, there should be deadlines for the issuance of the commissioner's preliminary judgment and for the school district to fully comply with the judgment.
Agency Response: The agency disagrees. While the agency recognizes the need for an expeditious resolution of disputes, a one-size-fits-all approach does not recognize the complexity of particular cases.
Comment: TxSER, et al. argued that compliance with the preliminary judgment as to an expedited review be ongoing while a final resolution is sought through all appeal levels, including an appeal to district court.
Agency Response: The agency disagrees as to the need to make a change to the proposed rule. The agency agrees that, when a preliminary judgment is issued because it is determined that the school district is not likely to prevail, the school district must fully comply with the order, as this is required by TEC, §29.022(o). However, the agency's final judgment might conclude that the school district prevails. In that case, the school district would have to comply with the preliminary judgment until there was a final judgment. If a school district were to appeal a preliminary judgment to district court, the statute indicates that the school district would have to comply to the agency's order. However, it is not the commissioner's role to make rules directing the courts. The judiciary is a coequal branch of government.
Comment: TxSER, et al. and three other commenters stated that the expedited process is not sufficiently expedited.
Agency Response: The agency disagrees. The expedited process is sufficiently expedited, particularly when compared to the regular process. The regular process for resolving a dispute is through a school district's grievance process. After completing a school district's grievance process, if a parent believes a school district has violated the Texas Education Code, the next step is an appeal to the commissioner under TEC, §7.057, which is specifically referenced in TEC, §29.022(l)(1). The statutory timeline for a commissioner's decision in a case against a school district is 240 days in accordance with TEC, §7.057(c). The expedited process is considerably quicker than the regular process. The expedited process ensures that all interested persons have a say in the adjudicative process. Reducing the time periods under the expedited process would impact the fairness of the proceedings.
Comment: The Texas Counsel of Administrators of Special Education (TCASE), TASA, TASB, TCSA, and three other commenters stated that the rules should allow for a charter school to request an extension of time.
Agency Response: The agency agrees in part. Either a school district or a charter school can request an extension of time in accordance with TEC, §29.022(l)(3) and (5). The commenters are correct that there should be a process for charter schools to request an extension of time. However, as the current proposed appeal rule does not affect charter schools, the commissioner could not adopt rules that governed charter schools without first proposing said rules and allowing for public comment. Proposed rules concerning a charter school's request for an extension of time under §103.1303 may possibly be addressed at a later date.
Comment: TCASE, TASA, and TASB stated that the term "days" should always refer to school business days because of school breaks and because of confusion that may result without clarification.
Agency Response: The agency disagrees. The process is meant to be expeditious. To allow for holidays and summer break to interrupt the process would make the process significantly less expeditious.
Comment: TCASE, TASA, and TASB pointed out that the first sentence of proposed §103.1303(b)(3) applies only to the denial of a request for placement, and the second sentence applies to both a denial of a request for placement and to the releasing of a video. They argued that this is confusing.
Agency Response: The agency agrees. A change was made at adoption to move the second sentence of §103.1303(b)(3) into new paragraph (4).
Comment: TCASE, TASA, and TASB stated that the cost of releasing a video should be considered by the commissioner. They noted that TEC, §29.022(h), prohibits regular or continual monitoring of video and argued that the costs to districts could be significant.
Agency Response: The agency disagrees. While costs may at times be significant, TEC, §29.022(i) requires that a school district shall release for viewing a recording when an alleged incident is documented in a recording and when there is a DFPS investigation. A video is to be released when there is an alleged incident. An incident is defined in 19 TAC §103.1301(b)(8) to be abuse and neglect as defined in the Texas Family Code, Chapter 261. A serious allegation must be made prior to the release of a video, and the alleged incident must be documented in the recording. Because of these requirements, requests to continuously monitor a classroom most likely will be denied.
Comment: TCASE, TASA, and TASB stated that a video should not be allowed to be viewed because of a preliminary judgment, because a final judgment could conclude that the video should not be viewed and, once viewed, there is no way to undo a viewing.
Agency Response: The agency disagrees. TEC, §29.022(o), provides that, if the agency determines that the district is not likely to prevail, the district must comply with TEC, §29.022, notwithstanding an appeal of the agency's decision.
Comment: TCSA and three other commenters stated that the rules should allow appeals against open-enrollment charter schools concerning the denial of a request for the placement of cameras or the denial for the release or viewing of a video under TEC, §7.057.
Agency Response: The agency disagrees. The general process to appeal a violation of the school laws of this state, which include TEC, §29.022, is found at TEC, §7.057. However, TEC, §7.057, does not apply to charter schools. TEC, §29.022, does not give the commissioner the authority to expand the commissioner's jurisdiction under TEC, §7.057, to include charter schools. The Texas Legislature, in TEC, §29.022(p), has required the commissioner to adopt rules concerning expedited review for school district actions, but has given the commissioner the option of adopting rules concerning expedited review for charter schools. After reviewing how these rules for expedited review have worked for school districts, a decision may be made whether to extend expedited review to charter schools.
Comment: TCSA stated that the procedures should be simplified. TCSA objected to requiring parents and school personnel to file briefs, allowing briefing outside the pleadings, and recommending legal citations.
Agency Response: The agency disagrees. Briefing is how a party explains why the commissioner should rule in a party's favor. Legal citations are recommended in the rule because the commissioner is to determine legal issues. Briefing outside of the pleadings can benefit those not well versed in the legal process. In legal proceedings, arguments are often dismissed because they have not been pled. The commissioner is to be a neutral decisionmaker in the appeal process. Hence, the commissioner can only decide what the parties bring. The commissioner is not to make the argument for either party. Each party needs to make its own arguments through briefing.
Comment: TCDD stated that parents should be notified that they can report abuse or neglect without going through these rules.
Agency Response: The agency disagrees. Section 103.1301 and §103.1303 are about the installation of cameras and the release and viewing of videos. It is not likely that anyone would believe that she or he had to go through these rules before reporting abuse or neglect.
Comment: TCDD stated that it is unnecessary to use TEC, §7.057, procedures in the expedited review process under proposed §103.1303(b)(6), relettered as §103.1303(b)(7) at adoption.
Agency Response: The agency disagrees. The only way to allow for an appeal of a Commissioner's Decision to the courts is to bring the commissioner's review under TEC, §7.057. TEC, §29.022, itself does not allow for such an appeal. Further, school districts know how to conduct grievance hearings as to other matters that may be appealed to the commissioner. Holding a grievance hearing at the school district is superior to having all interested parties travel to Austin.
Comment: TCDD commented that TEA should provide a copy of §§157.1052(b), 157.1073(d), 157.1059, 157.1061, and 157.1073(e)-(h), as referenced in proposed §103.1303(b)(6), to parents.
Agency Response: The agency agrees. The rules at issue are on the TEA website at http://ritter.tea.state.tx.us/rules/tac/chapter157/index.html, and hard copies can be provided to all interested parties to a case.
Comment: TCDD noted that TEC, §29.022(i), uses the phrase "released for viewing" and argued that several subsections that use the phrase "release a video" should be amended to use the phrase "release a video for viewing." Also, TCDD noted that proposed §103.1303(b)(4), relettered as §103.1303(b)(5) at adoption, should be amended to read, "the commissioner will determine whether the requestor is a person allowed to view a released video."
Agency Response: The agency disagrees. The only purpose for requesting a video is to view the video. There is no need to specify that a video is to be released for viewing.
Comment: TCDD and several other commenters stated that timelines should be created for the school district grievance process.
Agency Response: The agency disagrees. The comment falls outside the scope of the rulemaking process for §103.1301 and §103.1303.
Comment: A commenter stated that too much time is given for a school district to request an extension of time to install a camera. The commenter noted that the 45th school business day is the statutory deadline for installing cameras.
Agency Response: The agency disagrees in part. TEC, §29.022(l)(5), states that the timeline for installing cameras is the 10th day of the fall semester or the 45th school business day, whichever is later. However, language was modified at adoption in §103.1303(c)(1) to specify that a school district should request an extension when it knows that it will not be able to timely install the camera.