Proposed Revisions to 19 TAC Chapter 101, Assessment
(First Reading and Filing Authorization)
November 16, 2012
COMMITTEE ON INSTRUCTION: ACTION
STATE BOARD OF EDUCATION: ACTION
SUMMARY: This item presents for first reading and filing authorization proposed revisions to 19 TAC Chapter 101, Assessment, Subchapter A, General Provisions, Subchapter B, Development and Administration of Tests, Subchapter C, Security and Confidentiality, Subchapter D, Scoring and Reporting, and Subchapter E, Local Option. The proposed revisions would reflect changes in statute granting rulemaking authority to the commissioner of education by the Texas Legislature as necessary to implement the Texas Education Code (TEC), §§28.0211, 39.023, and 39.025.
STATUTORY AUTHORITY: TEC, §§7.021, 28.0211, 39.023, 39.0231, 39.025, 39.027, 39.028, 39.030, 39.0301, 39.0302, 39.0304, 39.032; Senate Bill (SB) 103, Section 9, 76th Texas Legislature, 1999; and Office of Attorney General (OAG) Opinion No: JC-0478.
EFFECTIVE DATE: The proposed effective date of the proposed revisions to 19 TAC Chapter 101 would be 20 days after filing as adopted with the Texas Register in order to implement the latest policy in a timely manner. Under the TEC, §7.102(f), the State Board of Education (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 2013-2014 school year.
PREVIOUS BOARD ACTION: The SBOE adopted rules in 19 TAC Chapter 101, Subchapters A-E, effective November 15, 2001. In Subchapter A, §§101.5, 101.7, 101.9, and 101.11 were last amended effective December 23, 2009. In Subchapter B, §101.25 was last amended effective May 28, 2006, and §101.31 and §101.33 were last amended effective December 23, 2009. In Subchapter E, §101.101 was last amended effective April 21, 2010. The SBOE last adopted the statutorily required four-year rule review of its rules in 19 TAC Chapter 101 in March 2009. A discussion item regarding proposed revisions to 19 TAC Chapter 101, Subchapters A-E, was presented to the Committee on Instruction at the July 2012 meeting.
BACKGROUND INFORMATION AND SIGNIFICANT ISSUES: In 2007, the 80th Texas Legislature enacted SB 1031, and in 2009, the 81st Texas Legislature enacted House Bill (HB) 3, both of which made significant changes to the Texas student assessment program and required the development and implementation of the State of Texas Assessments of Academic Readiness (STAAR) program. With HB 2135 in 2011, the 82nd Texas Legislature further modified assessment requirements for students who test above grade level. In response to SB 1031, HB 3, and HB 2135, the commissioner of education has adopted and amended rules as necessary to implement the legislative requirements for the assessment program. The commissioner rules include student testing requirements, grade advancement requirements, testing requirements for graduation, and accelerated instruction requirements.
According to the TEC, the SBOE is responsible for adopting rules related to the general establishment of the assessment program for purposes of accountability. This SBOE requirement is met through the following rules in 19 TAC Chapter 101, Assessment.
• In Subchapter A, §101.1, Scope of Rules, §101.3, Policy, and §101.5(a), Student Testing Requirements, establish the assessment program and require all students receiving instruction in the Texas Essential Knowledge and Skills to be assessed.
• In Subchapter B, §101.25, Schedule, specifies that the commissioner will adopt a schedule for administering the assessments and requires uniform administrative procedures.
The SBOE also has responsibility for the following.
• Per the TEC, §39.023(e), Adoption and Administration of Instruments, the SBOE establishes a release test schedule in rule.
• Under the TEC, §39.033, Voluntary Assessment of Private School Students, the SBOE approves the per-student costs for private schools that administer state assessments.
• As authorized under the TEC, §39.026, Local Option, and the TEC, §39.032, Assessment Instrument Standards; Civil Penalty, the SBOE rules govern the administration and renorming of local option group-administered assessments.
To align the SBOE rules in 19 TAC Chapter 101 with state law and ensure a clear delineation between SBOE and commissioner authority over the assessment program as clarified by the OAG Opinion No: JC-0478 and to eliminate possible contradictions between SBOE and commissioner rule in Texas Administrative Code, this item presents the following proposed revisions to 19 TAC Chapter 101, Subchapters A-E, as shown in Attachment II. The proposed revisions also include necessary updates, clarifications, and conforming changes. Proposed commissioner rules that would replace the repealed SBOE rules where necessary are scheduled to be filed as proposed in November 2012.
Subchapter A, General Provisions
Section 101.1, Scope of Rules, would be amended to update language to indicate the new assessments of academic readiness.
Section 101.5, Student Testing Requirements, would be amended to remove subsections (b)-(d) relating to certain student populations. Specific student testing requirements stemming from the TEC, §§28.0211, 39.023, and 39.027, applicable to general education, special education, and English language learner student populations, have been established by the commissioner in 19 TAC Chapter 101, Subchapter AA, Commissioner's Rules Concerning the Participation of English Language Learners in State Assessments, Subchapter BB, Commissioner's Rules Concerning Grade Advancement and Accelerated Instruction, and Subchapter CC, Commissioner's Rules Concerning Implementation of Academic Content Area Testing Program.
Section 101.7, Testing Requirements for Graduation, would be repealed. Rulemaking authority for the STAAR program's assessment graduation requirements has been granted to the commissioner in the TEC, §39.025(a). The TEC, §39.025(f), also allows commissioner rulemaking concerning the transition to the STAAR. Commissioner's rules have been established in 19 TAC Chapter 101, Subchapters AA and CC.
Section 101.9, Grade Advancement Requirements, and §101.11, Remediation, would be repealed. Since rulemaking authority for the Student Success Initiative (SSI) has been granted by the Texas Legislature to the commissioner in the TEC, §28.0211(k), commissioner rules for the SSI, including remediation requirements, have been established by the commissioner in 19 TAC Chapter 101, Subchapters BB and CC.
Section 101.13, Notice to Students and Parents, would be repealed. The TEC, §39.025(f), requires the commissioner to adopt rules for the transition to end-of-course (EOC) testing, including the requirement of the TEC, §39.025(g), that students be notified of their graduation requirements by the beginning of Grade 8. Further, Grades 5 and 8 assessment promotion requirements fall under the commissioner's rulemaking authority as specified by the TEC, §28.0211(k), including notification of grade promotion requirements. Any other requirements for parental/student notification of mandated assessments falls under the commissioner's general rulemaking authority over the assessment program.
The agency plans to adopt commissioner rules as necessary for the required notification to students and parents of mandated assessments for grade promotion purposes, graduation, and any other state or federally required testing. The commissioner rulemaking process is scheduled to begin in November 2012 with an effective date of February 2013.
Subchapter B, Development and Administration of Tests
As clarified by the OAG Opinion No: JC-0478, all aspects of test development and specific administration procedures, including allowable accommodations, are a commissioner responsibility. Accordingly, §101.21, Test Development, and §101.29, Accommodations, would be repealed and §101.27, Administrative Procedures, would be amended to remove subsections (a) and (c).
The agency plans to adopt commissioner rules as necessary to require educator, campus, and district participation in the test development process.
Though allowable assessment accommodations are currently covered in appropriate state-developed test administrator manuals, the agency plans to adopt commissioner rules as necessary to require districts to provide appropriate accommodations. The commissioner rulemaking process is scheduled to begin in November 2012 with an effective date of February 2013.
To comply with statutory requirements, Attachment II includes the following changes to SBOE rules in 19 TAC Chapter 101, Subchapter B.
Section 101.25, Schedule, would be amended to specify that the schedule for administering assessments be in compliance with the TEC, §39.023(c-3)(1) and (2), which states that Grades 3-8 assessments must be administered at least two weeks later than when the first of those assessments were administered in 2006-2007 and that the EOC assessments cannot be administered before the first full week in May, with the exception of English I-III.
Section 101.33, Release of Tests, would be amended to clarify the release of field-test items.
Subchapter C, Security and Confidentiality
Sections 101.61, Security of Tests, 101.63, Confidentiality, and 101.65, Penalties, would be repealed. As specified in the TEC, §§39.0301, 39.0302, and 39.0304, the security of assessments, investigations, issuance of subpoenas, and requiring necessary training activities to ensure a secure testing program are the responsibility of the commissioner and agency. Beginning in 2012, the commissioner adopted into rule the Test Security Supplement, which covers all aspects of training, security, and the handling of incident reporting. As allowed by the commissioner's general rulemaking authority, the agency intends to adopt into rule a Test Security Supplement for each subsequent school year.
Subchapter D, Scoring and Reporting
Sections 101.81, Scoring and Reporting, and 101.83, National Comparative Data, would be repealed. The TEC, §39.0231, Reporting Results of Certain Assessments, specifies that the agency ensure the prompt reporting of assessments required under the TEC, §28.0211. All further reporting requirements fall under the commissioner's general rulemaking authority to fully implement the assessment program, which includes the timely reporting of results to students and parents.
The agency plans to adopt commissioner rules as necessary to require the reporting of assessment results, with appropriate interpretations, to students and parents. Such reporting will be required to be in compliance with the confidentiality requirements of the TEC, §39.030. The commissioner rulemaking process is scheduled to begin in November 2012 with an effective date of February 2013.
Authority for conducting nationally comparative data studies is given to the state's assessment program by the TEC, §39.028. The proposed repeal of §101.83 would align Texas Administrative Code with statute. The agency plans to adopt commissioner rules as necessary for the National Comparative Data Study.
Subchapter E, Local Option
Section 101.101, Group-Administered Tests, would be amended to specify that the section applies only to assessments covered by this section and to update a reference to rules on test security and confidentiality.
FISCAL IMPACT: The Texas Education Agency has determined that there are no additional costs to persons or entities required to comply with the proposed revisions. In addition, there is no direct adverse economic impact for small businesses and microbusinesses; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.
PUBLIC AND STUDENT BENEFIT: The proposed revisions would update Texas Administrative Code to reflect SBOE and commissioner rulemaking responsibilities relating to the statewide assessment program and to help ensure that the assessment requirements are clearly defined for students, school districts, and the public.
PROCEDURAL AND REPORTING IMPLICATIONS: The proposed revisions would have no procedural and reporting implications.
LOCALLY MAINTAINED PAPERWORK REQUIREMENTS: The proposed revisions would have no new locally maintained paperwork requirements.
PUBLIC COMMENTS: The official public comment period will begin when the revisions are published as proposed in the Texas Register.
OTHER COMMENTS AND RELATED ISSUES: A request for a public hearing on the proposal submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 14 calendar days after notice of the proposal has been published in the Texas Register.
COMMISSIONER'S RECOMMENDATION: I recommend that the State Board of Education:
Approve for first reading and filing authorization the proposed revisions to 19 TAC Chapter 101, Assessment.
Michael L. Williams
Commissioner of Education
Staff Members Responsible:
Criss Cloudt, Associate Commissioner
Assessment and Accountability
Gloria Zyskowski, Division Director
I. Statutory Citations (PDF, 177KB)
II. Text of Proposed Revisions to 19 TAC Chapter 101, Assessment (PDF, 54KB)
III. Office of Attorney General's Opinion No: JC-0478 (outside source)