November 2020 Committee on Instruction Item 1
Proposed Amendment to 19 TAC Chapter 66, State Adoption and Distribution of Instructional Materials, Subchapter A, General Provisions, §66.15, Administrative Penalty
(Second Reading and Final Adoption)
November 20, 2020
COMMITTEE ON INSTRUCTION: ACTION
STATE BOARD OF EDUCATION: ACTION
SUMMARY: This item presents for second reading and final adoption a proposed amendment to 19 Texas Administrative Code (TAC) Chapter 66, State Adoption and Distribution of Instructional Materials, Subchapter A, General Provisions, §66.15, Administrative Penalty. The proposed amendment would address penalties for failure to comply with state law and rule governing review and adoption of instructional materials. No changes are recommended since published as proposed.
STATUTORY AUTHORITY: Texas Education Code (TEC) §§31.002, 31.003, 31.023, 31.035, and 31.151(b).
TEC, §31.002, defines open education resource instructional material.
TEC, §31.003, authorizes the State Board of Education (SBOE) to adopt rules for the adoption, requisition, distribution, care, use, and disposal of instructional materials.
TEC, §31.023, requires the SBOE to adopt a list of instructional materials that meet applicable physical specifications, contain material covering at least half of the applicable Texas Essential Knowledge and Skills (TEKS) in the student version and in the teacher version, are suitable for the subject and grade level for which the instructional material was submitted, and have been reviewed by academic experts in the subject and grade level for which the instructional material was submitted.
TEC, §31.035, allows the SBOE to adopt supplemental instructional materials that are not on the adopted list if the material covers one or more primary focal points or topics of a subject in the required curriculum, is not designed to serve as the only instructional material for the course, meets applicable physical specifications, is free from factual errors, is suitable for the subject and grade level for which the instructional material was submitted, and has been reviewed by academic experts in the subject and grade level for which the instructional material was submitted. The statute requires the SBOE to identify the TEKS that are covered by the supplemental instructional material and requires the material to comply with the review and adoption cycle provisions.
TEC, §31.151(b), authorizes the SBOE to impose a reasonable administrative penalty against a publisher who knowingly violates a requirement imposed on a publisher or manufacturer of instructional materials by TEC, §31.151(a), and ensure the penalty is of sufficient amount to deter a future violation.
EFFECTIVE DATE: The proposed effective date of the proposed amendment is 20 days after filing as adopted with the Texas Register. Under TEC, §7.102(f), the SBOE must approve the rule action at second reading and final adoption by a vote of two-thirds of its members to specify an effective date earlier than the beginning of the 2021-2022 school year. The earlier effective date will enable the amended rule to apply to publishers immediately and will support higher quality instructional materials for students.
PREVIOUS BOARD ACTION: At the June-July 2020 SBOE meeting, the Committee on Instruction discussed possible amendments to Chapter 66 related to administrative penalties. At the September 2020 SBOE meeting, the board approved a proposed amendment to 19 TAC §66.15 for first reading and filing authorization.
BACKGROUND INFORMATION AND JUSTIFICATION: Rules in 19 TAC Chapter 66, Subchapter A, address the requirement for registers, procedures governing violations of statutes, and administrative penalties.
At the April 2020 SBOE meeting, SBOE members expressed concern about publishers making changes to adopted products without obtaining SBOE approval and asked staff to provide options to address this concern. At the June-July 2020 SBOE meeting, the Committee on Instruction discussed possible amendments to rules in Chapter 66 related to administrative penalties to address this issue. At the September 2020 SBOE meeting, the board approved a proposed amendment to 19 TAC §66.15 for first reading and filing authorization.
The proposed amendment would add new §66.15(f)(3) to impose stricter penalties for instructional materials containing factual errors if the errors occur due to updates to instructional materials and the publisher did not submit the proposed updates for review in accordance with requirements imposed by the SBOE.
The attachment to this item reflects the text of the proposed amendment to §66.15 for consideration by the SBOE for second reading and final adoption.
No changes are recommended since approved for first reading.
FISCAL IMPACT: No changes have been made to this section since published as proposed.
The Texas Education Agency (TEA) has determined that there are no additional costs to state or local government required to comply with the proposal.
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: No changes have been made to this section since published as proposed.
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 proposed rulemaking. During the first five years the proposed rulemaking would be in effect, it would expand an existing regulation related to administrative penalties for failure to comply with state law and rule governing review and adoption of instructional materials.
The proposed rulemaking 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 create a new regulation; would not 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 proposal would ensure adopted instructional materials continue to be appropriately aligned to the TEKS prior to use by Texas teachers and students. There is no anticipated economic cost to persons who are required to comply with the proposal.
DATA AND REPORTING IMPACT: No changes have been made to this section since published as proposed.
The proposal would have no new data and reporting impact.
PRINCIPAL AND CLASSROOM TEACHER PAPERWORK REQUIREMENTS: No changes have been made to this section since published as proposed.
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: Following the September 2020 SBOE meeting, notice of the proposed amendment to 19 TAC §66.15 was filed with the Texas Register, initiating the public comment period. The public comment period on the proposal began October 9, 2020, and ended November 13, 2020. No comments had been received at the time this item was prepared. A summary of any public comments received regarding the proposal will be provided to the SBOE prior to and during the November 2020 meeting. The SBOE will take registered oral and written comments on the proposal at the appropriate committee meeting in November 2020 in accordance with the SBOE board operating policies and procedures.
MOTION TO BE CONSIDERED: The State Board of Education:
Approve for second reading and final adoption the proposed amendment to 19 TAC Chapter 66, State Adoption and Distribution of Instructional Materials, Subchapter A, General Provisions, §66.15, Administrative Penalty; and
Make an affirmative finding that immediate adoption of proposed amendment to 19 TAC Chapter 66, State Adoption and Distribution of Instructional Materials, Subchapter A, General Provisions, §66.15, Administrative Penalty, is necessary and shall have an effective date of 20 days after filing as adopted with the Texas Register. (Per TEC, §7.102(f), a vote of two-thirds of the members of the board is necessary for an earlier effective date.)
Staff Members Responsible:
Melissa Lautenschlager, Director, Instructional Materials and Implementation
Amie Williams, Director, Review and Adoption
Attachment:
Text of Proposed Amendment to 19 TAC Chapter 66, State Adoption and Distribution of Instructional Materials, Subchapter A, General Provisions, §66.15, Administrative Penalty