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TxSER's Submitted Comments on the Commissioner's Proposed Rules Concerning Cameras in Classrooms

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Texans for Special Education Reform (TxSER) would like to begin by thanking the Commissioner and TEA for addressing some of the concerns raised regarding the previous Proposed Revisions to 19 TAC Chapter 103 in our Public Comments dated January 10, 2018. However, TxSER believes more changes are required to provide much-needed clarification, promote proper implementation and discourage the frivolous denial of parental requests by schools and districts. The following organizations join TxSER in submitting the comments below with regard to the current Proposed Revisions to 19 TAC Chapter 103:

  • Texas Parent to Parent                                                          

  • Capable Kids Foundation

  • National Autism Association of North Texas                         

  • Texas Democrats with Disabilities

  • Louis Geigerman, Nat’l ARD/IEP Advocates                           

  • Autism Society of Texas

  • Texas Alliance for Student Rights                                         

  • Moussa Autism Consulting

  • Not on Lil T’s Watch

 

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

General Comments In amending TEC §29.022, SB 1398 intentionally included the addition of the word “alleged” whenever referring to an ”incident;” thereby demonstrating the legal distinction the use of the term “alleged” imparts; namely clarifying that a showing of proof is not required to trigger the school/district’s obligation to release a video for viewing by persons, including parents and staff members, in accordance with TEC §29.022(i). The Proposed Revisions fail to incorporate this change in language and, in so doing places a significant and unauthorized burden of proof on the requestor by adding their own definition of “incident” in direct conflict with both the language of the statute and its express purpose. TxSER requests that all uses of the word “incident” be replaced with “alleged incident” to align with statutory requirements which imposes no legal finding to be made prior to a viewing.

TxSER also notes the neglect to address the actual viewing of video surveillance recordings and/or audio recordings.  The intent of TEC §29.022 is to provide certain persons, parents included, the ability to access and view video surveillance recordings of a student when there is an allegation of harm to a student or students. TEA has restricted the ability of parents to access these recordings by requiring parents to allege an incident that comports with the Texas Family Code definition of abuse and neglect alone when the intent of the statute is far broader.  Additionally, TEA has failed to provide any recourse for parents who are either denied the ability to view a recording after receipt of an express denial or who are effectively denied a viewing because the school district or charter school has failed to act on such a request.  TEA has not provided a recourse for either one of these denials of a a viewing as one of the actionable bases outlined for the two appeal processes in it’s Proposed Revisions.

§103.1301(b)(1) TEA expands the definition of “Parent” in this subsection to include “a student who receives special education and related services in one or more self-contained classrooms or other special education settings and who is 18 years of age or older or whose disabilities of minority have been removed for general purposes under Texas Family Code, Chapter 31, unless the student has been determined to be incompetent or the student's rights have been otherwise restricted by a court order.” This is not authorized under TEC §29.022 and, in fact, conflicts with the overall purpose of promoting student safety by opening the door for districts to deny requests to install cameras, or to cease recording in classrooms where cameras have been placed, based on a child turning 18 without regard to the child’s actual competency, whether there is still a parental/child relationship in which the student is in fact still a dependent as is recognized in 34 C.F.R. 99.31(a)(8), or whether the parent is in the process of seeking guardianship. TxSER requests this language be removed.

§103.1301(b)(2)  TxSER requests the definition of “staff member” be expanded to include  substitute personnel and volunteers as well as an instructional service provider as the state of Texas does not consider a speech therapist to be a related services provider but rather, defines them as an “instructional service provider.”

§103.1301(b)(4) TxSER requests the definition of self-contained classroom be clarified to ensure the inclusion of rooms used for providing related services such as occupational and physical therapy where a majority of the students in regular attendance are provided special education and related services for at least 50 percent of the instructional day and have one of the listed instructional arrangement/settings.

§103.1301(b)(8) The definition of “incident” created by TEA is inappropriately narrow, unsupported by statute - going beyond the authority granted TEA by TEC §29.022 - and does not comport with the broader requirement of promoting student safety. The express purpose of TEC §29.022 is to “promote student safety” and is not designed to ensure the reporting of abuse and neglect as those terms are defined under the Texas Family Code alone. Assessment of harm with regard to a student with a disability must take into account the developmental level and unique physical, emotional and behavioral characteristics of the individual student’s disability. TxSER is aware of numerous reports throughout the state of harm inflicted on students with disabilities that have not been found to meet the criteria for abuse or neglect as those terms are defined in the Texas Family Code but which any reasonable person would find cruel or harmful to a student.  For example; vinegar soaked cotton balls being inserted in children’s mouths to promote compliance, the repeated capping of a child’s tracheostomy tube to promote compliance, allowing a child to engage in perseverative behaviors for hours on end, and forcing children to endure various interventions that are manifestly inappropriate by reason of their offensive nature or their potential for negative physical or emotional harm. These are all examples of incidents that may not constitute abuse or neglect as those terms are defined in the Texas Family Code but are incredibly harmful none the less and should still invoke the protections afforded parents and children under the statute.

Furthermore, the statute makes clear in TEC §29.022(j) that an alleged incident may involve alleged violations of school or district policies relating to abuse or neglect of a student; policies whose definition of abuse and/or neglect may differ from those in the Texas Family Code. For these reasons, TxSER requests this definition be eliminated altogether.  In the alternative, TxSER requests the definition be expanded to encompass allegations involving unethical behavior as defined in the Texas Educator Code of Ethics resulting in harm to a student including the intentional, knowing or reckless physical mistreatment of a student and/or treatment of a student in a manner that adversely affects or endangers the learning, physical health, mental health or safety of the student. TxSER further recommends that if the definition remains the term “staff member” be substituted for the term “employee.”

§103.1301(g) This subsection requires schools and districts to adopt policies and procedures relating to “the placement, operation, and maintenance of video cameras…” TxSER requests the addition of the following “and the maintenance and retention of video/audio recordings” to ensure school/district compliance with statutory requirements. TxSER further requests that any and all policies and procedures promulgated by schools and districts under this subsection be made available in the parent’s native language.

§103.1301(g)(5) Although TEC §29.022(l) permits parents to make a request for a video camera to be placed prospectively for the following school year, it does not expressly state that parents can only make requests for video cameras prospectively and within the later of the 10th school business day after the placement determination is made or the date on which the current school year ends. The intent of the statute is to promote student safety and limiting the time in which parents can make requests does not comport with the express purpose of the statute. As written, this subsection strictly limits the placement of a video camera to the year subsequent to when a parent learns that their child’s placement will be in an educational setting that falls within in the requirements of the statute. TxSER is aware that oftentimes throughout the course of a school year students’ placements change and when this occurs many times it is to a setting that is more restrictive and which then might comport with the statute.  The rules as currently proposed by TEA would require that a parent whose student has experienced a change in placement to have to wait until the following school year for an operational camera to be installed.

§103.1301(g)(7) As currently written, the language in this subsection is unclear with regard to what is being requested/responded to: whether it’s requests for video surveillance equipment or requests to view or release audio/video surveillance recordings. A survey of numerous districts’ published policies reveal a consistent failure to address the latter. To ensure compliance with statutory requirements, TxSER therefore requests language be added to make clear policies must include procedures for requests, and procedures for responding to requests, to view or release audio/video surveillance recordings that are aligned with TEC §29.022 (e-1)(i)((2) requirements that a “school district or open-enrollment charter school shall release a recording for viewing” when “a parent of a student who is involved in an alleged incident that is documented by the recording and has been reported to the district or school, on request of the parent.” In so doing, TxSER reminds TEA that the only requirement for viewing a recording is for a parent to meet the statutory definition of such and the reporting of an alleged incident.

In devising these policies and procedures TxSER requests that TEA promulgate rules that address when parents are effectively precluded from viewing a recording after a report has been made but the school district or charter school fails to respond. TEA has not mandated a time frame that school districts must adhere to when refusing access to viewing by either failing to respond or unreasonably delaying a response. TxSER recommends a 7 calendar day timeline for denying a viewing accompanied with a notice of refusal that outlines the specific basis for such a denial that places the parents on notice as to the precise reason the viewing was denied.

§103.1301(g)(8) & (11) These subsections as currently written still do not include the specific notice requirements in TEC §29.022(b) added by SB 1398 , “ If for any reason a school or campus will discontinue operation of a video camera during a school year, not later than the fifth school day before the date the operation of the video camera will be discontinued, the school or campus must notify the parents of each student in regular attendance in the classroom or setting that operation of the video camera will not continue unless requested by a person eligible to make a request under Subsection (a-1). Not later than the 10th school day before the end of each school year, the school or campus must notify the parents of each student in regular attendance in the classroom or setting that operation of the video camera will not continue during the following school year unless a person eligible to make a request for the next school year under Subsection (a-1) submits a new request.” As such, this section as proposed conflicts with these changes in statute. As this clarification would be beneficial to anyone involved in implementation, we request TEA incorporate the specific timeframe language in TEC §29.022(b) into the rules. TxSER also requests TEA provide clarification with regard to when a school or district must resume operation of video cameras previously installed once a request to continue surveillance has been received.

§103.1301(g)(9) This subsection places inappropriate and unauthorized limitations on when cameras must be operating; thus placing students at unnecessary risk in direct conflict with the express purpose of TEC §29.022.  TxSER requests this subsection be amended to read as follows: “a requirement that video cameras be operated at all times when one or more students are present in a self-contained classroom or other special education setting in which video cameras are placed.”

§103.1301(g)(16) TxSER would like to emphasize that TEC §29.022 does not place cumbersome or unduly restrictive reporting requirements for parental reporting of an alleged incident. TxSER recommends that TEA be specific and outline that the only reporting requirements mandated by statute are that a parent meet the definition of “Parent,” the student is placed in a statutorily compliant setting, and that an alleged incident has been reported.  TEC §29.022 has no requirement that an “alleged incident” meet a certain threshold or statutory definition of harm other than that the allegation address the safety and well-being of a student receiving special education who receives services in a self-contained classroom or other special education setting for at least 50 percent of the instructional day. TxSER is aware of incidences throughout the state where viewings are being summarily denied to parents without allowing parents to be part of the determination of whether there is an “incident.”  TEC §29.022 (e-1) clearly states that a parent, being a “person described in Subsection (i),  be among those who view the recording first before a determination of whether there is an “alleged incident.”

 

§103.1303. Commissioner's Review of Actions Concerning Video Cameras in Special Education Settings.

General Comments: As currently written, TxSER believes this section is confusing and difficult to follow. Part of the problem is that it combines both the regular appeal process and the new expedited appeal process created by SB 1398 into one section with the two processes intermingled throughout the section making it extremely difficult to determine whether certain aspects apply to one or both of the appeal paths. TxSER requests TEA separate out the expedited review rules into a new section following Sec. 103.1303.

TxSER further believes this section, as proposed, significantly violates the intent behind SB 1398. TEC §29.022 was amended to address problems identified with districts compliance with the statute and the intent was to have school/district failures to comply quickly resolved through processes that could be easily accessed by the parents of these vulnerable children. In addition to the previously mentioned confusing structure, the proposed rules create significant burdens on parents who wish to appeal – such as a requirement that they must identify and notify (a direct violation of Sec. 29.022(n)) all interested parties, – and establish timelines that are entirely in conflict with the meaning of an expedited process.

§103.1303(a) This subsection states that §103.1303 is applicable to actions concerning denials of requests to release a video but makes no reference to denials of requests to view a video.  TEC §29.022(i) states a video recording may not be “released or viewed except as provided in this subsection…” indicating these are separate and distinct requests. TxSER requests this be expanded to include requests to view a video recording.

§103.1303(b) TxSER believes that the process described in this subsection is confusing and far too complicated for a parent to navigate without the assistance of legal counsel; thus creating an unfair barrier to their participation. This runs counter to the goal of the legislation of promoting student safety. TxSER requests the process be shortened and simplified.

§103.1303(b)(1) This subsection requires the exhaustion of administrative remedies through the school district’s grievance process even when seeking expedited review. TxSER believes this requirement unnecessary and serves only to complicate and possibly prolong situations that require exigent responses as the statute’s stated purpose is to promote student safety.  TxSER recommends a tolling of the school’s grievance process when an expedited review is sought.

§103.1303(b)(3)  TxSER requests that the phrase “and school district policy” be removed. TEC §29.022 outlines the process for making a request and does not authorize the promulgation of rules that go beyond what is authorized in the statute.  Adherence to TEC § 29.022(a-1) and (a-3) alone suffices.

§103.1303(b)(6) TxSER continues to be concerned that the process described in this subsection is not an expeditious one as contemplated by the Legislature in TEC 29.022(m), (n) and (o) as amended by SB 1398. While Subsection (A) states “invoking the expedited review process results in a prompt initial determination,” there is no specific deadline provided for such determination. Nor is there a deadline for district compliance with a request following receipt of a preliminary judgment against them. TxSER requests TEA provide specific deadlines for expedited reviews requested under this subsection similar to those provided for expedited reviews requested by districts under §103.1303(c).

§103.1303(b)(6)(A) TxSER is concerned with the expedited review processes limitation to the record established at the school grievance level.  First, if the expedited review process is initiated concurrent with the local school grievance process, there could be no school grievance record at all.  Secondly, the Proposed Rules allow for additional issues to be raised upon appeal to the Commissioner while also limiting the evidentiary record to what was established at the grievance level. This does not allow for a well-developed record for the Commissioner’s review. The preclusion of any parties ability to expand the evidentiary record to address any and all new issues raised is concerning as parents at the grievance level often proceed pro se and cannot be expected to know how to both contemplate all possible issues that may be raised on appeal and develop a complete record  in anticipation of those additional issues. School districts, on the other hand, are often represented by counsel at the grievance level who are skilled in doing so. This renders the process heavily balanced in favor of school districts and does not provide for the equity that should exist in evidentiary proceedings. Lastly, the process in TEC Chapter 7 for appealing a final determination at the school district level does allow for the evidentiary record to be further developed.

§103.1303(b)(6)(C) This subsection states a petition for expedited review can be filed, “no earlier than 14 business days” after a request has been administratively denied. Given that time is of the essence when it comes to securing the safety of a child, TxSER is concerned by this unwarranted and unnecessary delay and requests it be removed.

§103.1303(b)(6)(I) TxSER is concerned by the statement, “[b]riefing is not limited to the issues specifically raised in the pleadings in the case” as it opens the door to raising any number of other issues regardless of their relevance to the request at issue which could result in unnecessary delay in what is supposed to be an expedited proceeding. TxSER requests briefing be limited to issues raised in the pleadings or issues directly relevant to those pleadings. Of note is that the Proposed Rules do not address pleadings specifically.  TxSER requests that pleadings should be limited specifically to issues related to the placement, operation, and maintenance of video cameras as well as the retention, viewing, and release of the video recordings only

TxSER requests that if additional issues are raised in the briefings then reply briefs should be permitted to address the new issues raised. Any interested party who receives the initial request for an expedited review has notice of the issues the requestor is bringing on appeal and can fashion a brief that responds accordingly and in addition can also bring forth new issues of which the requestor was unaware.  The requestor has no opportunity to learn of any potential new issues and then is not accorded the same opportunity to fashion a response if reply briefs cannot address any new issues raised on appeal.  Fundamental fairness dictates that the requestor should be given the opportunity to respond to any and all additional issues raised in any response to the request for an expedited review.

§103.1303(b)(6)(J) TxSER requests TEA include in this subsection a deadline for the issuance of the Commissioner’s preliminary judgment as well as for the school district to fully comply with said judgment. TxSER also requests that compliance with the preliminary judgment be ongoing while a final resolution is sought through all appeal levels, including an appeal to district court.

 

Once again, we at TxSER would be happy to meet with representatives from TEA to further discuss this very important issue and work together to ensure the safety of our most vulnerable children.

 

Christine Broughal
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