EHBAF(LEGAL) - SPECIAL EDUCATION: VIDEO/AUDIO MONITORING

Parental Consent Not Required

Video Surveillance of Special Education Settings

Classroom or Other Setting

  1. A campus that receives equipment as a result of the request by a parent or staff member is required to place equipment only in classrooms or settings in which the parent's child is in regular attendance or to which the staff member is assigned, as applicable; and
  2. A campus that receives equipment as a result of the request by a board of trustees, principal, or assistant principal is required to place equipment only in classrooms or settings identified by the requestor, if the requestor limits the request to specific classrooms or settings subject to Education Code 29.022.

Education Code 29.022(a)

Definitions

Incident

  1. Involves alleged "abuse" or "neglect," as described in Family Code 261.001, of a student by a staff member of the district or alleged "physical abuse" or "sexual abuse," as described in Family Code 261.410, of a student by another student; and
  2. Allegedly occurred in a self-contained classroom or other special education setting in which video surveillance under Education Code 29.022 and 19 Administrative Code 103.1301 is conducted.

Other Special Education Setting

  1. Residential care and treatment facility—separate campus; or
  2. Off home campus—separate campus.

Parent

School Business Day

Self-contained Classroom

  1. Self-contained (mild/moderate/severe) regular campus;
  2. Full-time early childhood (preschool program for children with disabilities) special education setting;
  3. Residential care and treatment facility—self-contained (mild/moderate/severe) regular campus;
  4. Residential care and treatment facility—full-time early childhood special education setting;
  5. Off home campus—self-contained (mild/moderate/severe) regular campus; or
  6. Off home campus—full-time early childhood special education setting.

Staff Member

Time-out

Video Camera

Video Equipment

Administrative Coordinator

Authorized Requestors

  1. A parent of a child who receives special education services for the campus at which the child receives those services;
  2. The board of trustees for one or more specified campuses;
  3. The principal or assistant principal for their campus; and
  4. A staff member assigned to work with one or more children receiving special education services for the campus at which the staff member works.

Processing the Request

  1. A parent, staff member, or assistant principal must submit a request to the principal or the principal's designee of the campus addressed in the request, and the principal or designee must provide a copy of the request to the district's designated administrator;
  2. A principal must submit a request by the principal to the district's designated administrator; and
  3. A board of trustees must submit a request to the district's designated administrator, and the administrator must provide a copy of the request to the principal or the principal's designee of the campus addressed in the request.

Video Camera Coverage

  1. Covering all areas of the classroom or setting, including a room attached to the classroom or setting used for time-out; and
  2. Recording audio from all areas of the classroom or setting, including a room attached to the classroom or setting used for time-out.

Written Notice

Education Code 29.022(b), (d)

Retention Period

Education Code 29.022(e)–(e-1)

Gifts, Grants, and Donations

No Waiver of Immunity

  1. Waive any immunity from liability of a district, or of district officers or employees; or
  2. Create any liability for a cause of action against a district or against district officers or employees.

No Monitoring

  1. Allow regular or continual monitoring of video recorded under Education Code 29.022; or
  2. Use video for teacher evaluation or for any other purpose other than the promotion of safety of students receiving special education services.

Confidentiality

Limited Release

  1. An employee who is involved in an alleged incident that is documented by the recording and has been reported to the district, on request of the employee;
  2. 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 campus, on request of the parent;
  3. Appropriate Department of Family and Protective Services (DFPS) personnel as part of an investigation of alleged or suspected abuse or neglect of a child under Family Code 261.406;
  4. A peace officer, a school nurse, a district administrator trained in de-escalation and restraint techniques as provided by commissioners rule, or a human resources staff member designated by the board in response to a report of an alleged incident or an investigation of district personnel or a report of alleged abuse committed by a student; or
  5. Appropriate agency or State Board for Educator Certification personnel or agents as part of an investigation.

Duty to Report

Use in Disciplinary Actions Against District Personnel

Federal Law / FERPA

District Policy

  1. A statement that video surveillance is for the purpose of promoting student safety in certain self-contained classrooms and other special education settings;
  2. Information on how a person may appeal an action by the district that the person believes to be in violation of this section or a policy adopted in accordance with this section, including the appeal and expedited review processes under 19 Administrative Code 103.1303 of this title (relating to Commissioner's Review of Actions Concerning Video Cameras in Special Education Settings) and the appeals process under Education Code 7.057;
  3. A requirement that the district provide a response to a request made under this section not later than the seventh school business day after receipt of the request by the person to whom it must be submitted under Education Code 29.022(a-3) (at Limited Release, above) that authorizes the request or states the reason for denying the request;
  4. Except as provided by item 6 of this provision, a requirement that a campus begin operation of a video camera in compliance with this provision not later than the 45th school business day, or the first school day after the 45th school business day if that day is not a school day, after the request is authorized unless the Texas Education Agency (TEA) grants an extension of time;
  5. A provision permitting the parent of a student whose admission, review, and dismissal (ARD) committee has determined that the student's placement for the following school year will be in a classroom or other special education setting in which a video camera may be placed under this section to make a request for the video camera by the later of:
    1. The date on which the current school year ends; or
    2. The tenth school business day after the date of the placement determination by the ARD committee;
  6. A requirement that, if a request is made by a parent in compliance with item 5 of this provision, unless TEA grants an extension of time, a campus begins operation of a video camera in compliance with this provision not later than the later of:
    1. The tenth school day of the fall semester; or
    2. The 45th school business day, or the first school day after the 45th school business day if that day is not a school day, after the date the request is made;
  7. The procedures for requesting video surveillance and the procedures for responding to a request for video surveillance;
  8. The procedures for providing advanced written notice to the campus staff and the parents of the students assigned to a self-contained classroom or other special education setting that video and audio surveillance will be conducted or cease in the classroom or setting, including procedures for notice, in compliance with Education Code 29.022(b), of the opportunity to request continued video and audio surveillance if video and audio surveillance will otherwise cease;
  9. A requirement that video cameras be operated at all times during the instructional day when one or more students are present in a self-contained classroom or other special education setting in which video cameras are placed;
  10. A statement regarding the personnel who will have access to video equipment or video recordings for purposes of operating and maintaining the equipment or recordings;
  11. A requirement that a campus continue to operate and maintain any video camera placed in a self-contained classroom or other special education setting for as long as the classroom or setting continues to satisfy the requirements in Education Code 29.022(a), for the remainder of the school year in which the campus received the request, unless the requester withdraws the request in writing;
  12. A requirement that video cameras placed in a self-contained classroom or other special education setting be capable of recording video and audio of all areas of the classroom or setting, except that no visual monitoring of bathrooms and areas in which a student's clothes are changed may occur. Incidental visual coverage of the inside of a bathroom or any area of the classroom or other special education setting in which a student's clothes are changed is permitted only to the extent that such coverage is the result of the layout of the classroom or setting. Audio recording of the inside of a bathroom or any area of the classroom or other special education setting in which a student's clothes are changed is required;
  13. A statement that video recordings must be retained for at least three months after the date the video was recorded and that video recordings will be maintained in accordance with the requirements of Education Code 29.022(e-1), when applicable;
  14. A statement that the regular or continual monitoring of video is prohibited and that video recordings must not be used for teacher evaluation or monitoring or for any purpose other than the promotion of student safety;
  15. At the district's discretion, a requirement that campuses post a notice at the entrance of any self-contained classroom or other special education setting in which video cameras are placed stating that video and audio surveillance are conducted in the classroom or setting;
  16. The procedures for reporting an allegation to the district that an incident occurred in a self-contained classroom or other special education setting in which video surveillance under Education Code 29.022 and 19 Administrative Code 103.1301 is conducted;
  17. The local grievance procedures for filing a complaint alleging violations of Education Code 29.022, and/or 19 Administrative Code 103.1301; and
  18. A statement that video recordings made under Education Code 29.022 and 19 Administrative Code 103.1301 are confidential and a description of the limited circumstances under which the recordings may be viewed.

19 TAC 103.1301(g)

Governmental Record

Operation of Camera

Education Code 29.022(s)–(t)

Exclusions

Dispute Resolution

Denial of Request

Exhaustion of Administrative Remedies

Proper Request

Cost

Release Determination

Timelines for Petition for Review

  1. A petition for review shall be filed with the commissioner within ten calendar days of the decision of the board denying the request being first communicated to the requester or requester's counsel, whichever occurs first. The petition for review shall be made in accordance with 19 Administrative Code 157.1073(c) (relating to hearings brought under Education Code 7.057) and may include a request for expedited review.
  2. The district's answer and local record shall comply with 19 Administrative Code 157.1052(b) and (c) and 19 Administrative Code 157.1073(d) and shall be filed with the commissioner within ten calendar days of the district receiving notification from the commissioner of the appeal.
  3. The procedures specified in 19 Administrative Code 157.1059; .1061; and .1073(e)–(h), (j), and (k) apply to a case brought to the commissioner under this section.

Expedited Review

  1. The expedited review process is designed to allow a requester to promptly receive a preliminary judgment from the commissioner as to a decision to deny a request for the installation of cameras or a decision to deny a request to release a video while at the same time respecting the school grievance process. The expedited review process does not apply to a request to only view a video. Invoking the expedited review process results in a prompt initial determination. However, the final commissioner's determination is to be based on a substantial evidence review of the district's grievance record. This allows for a full record to be developed at the district level and does not require the requester and the district to make an evidentiary record before TEA in Austin, Texas. Because the requirements of Education Code 7.057 are met when the board's decision is heard by the commissioner, an appeal to district court is allowed under Education Code 7.057(d). Education Code 29.022 does not by itself allow an appeal to district court.
  2. A district, parent, staff member, or administrator may request an expedited review. Any request for an expedited review shall include the names, telephone numbers, and addresses of all interested parties to the request. "Interested parties" are all persons who brought the grievance, all persons who have testified or provided written statements as part of the grievance process, and the district. The request for expedited review shall specify whether the district denied a request for the placement of a video camera or the district denied a request to release a video and briefly describe why that decision is either correct or incorrect.
  3. A request for expedited review shall be filed with the commissioner no earlier than 14 business days after a request for placement of a video camera or a request to release a video is administratively denied under Education Code 29.022(i) or (l)(2) (see Limited Release and Process, above), and no later than the fifth business day after a board resolves a grievance as to a request for placement of a video camera or a request to release a video. A request for expedited review shall be filed with the commissioner by U.S. Mail, facsimile, hand-delivery, or by a commercial delivery service.
  4. Whenever an interested party files a document with the commissioner, with the exception of the request for expedited review, the interested party shall send the same document to all other interested parties by the same method that the document was sent to the commissioner. Hand-delivery of the document by the next day may be substituted for service by facsimile delivery.
  5. If a request for expedited review is timely filed, the commissioner will establish a briefing schedule and will send to all interested parties a notice that an expedited review has been filed, which will include relevant statutes and rules. Any interested party who knows of any additional interested parties who have not been notified will promptly inform the commissioner in writing.
  6. All briefing shall clearly state the facts relied upon. Documents relevant to the issues presented may be attached to a brief. All briefing shall provide the reasons why the commissioner should or should not grant the request for expedited review. Citations to statutes, rules, commissioner decisions, and case law are important to identify the legal basis for the claims made.
  7. All interested parties who are in favor of granting the request for expedited review shall file briefing at the time specified for the requester of the expedited review.
  8. All interested parties who are opposed to granting the request for expedited review shall file briefing at the same time.
  9. Briefing is not limited to the issues specifically raised in the pleadings in the case. However, no new arguments may be raised in the reply briefs. Reply briefs may contain new citations to the record and legal authority as to issues previously raised.
  10. A preliminary judgment shall be issued based on the briefing of the interested parties. The preliminary judgment will be sent to the requestor, the district, and all interested parties. If it is determined that a district is not likely to prevail on the issue of a request for the placement of video cameras or the issue of a request to view a video under full review, the district will fully comply with Education Code 29.022.
  11. After a preliminary judgment is made, a final judgment will be made in accordance with the procedures set forth in 19 Administrative Code 103.1303(b)(1)–(5) (the Denial of Request Review process).

19 TAC 103.1303(b)

Extension of Time

Request

Filing Documents

Filing Responses

Expedited Review

  1. Any reply by the district to any response to the request shall be filed with the commissioner within 25 calendar days of the filing of the request for an extension of time to begin the operation of a video camera.
  2. A preliminary judgment shall be made by the commissioner within 35 calendar days of the filing of the request for an extension of time to begin the operation of a video camera.
  3. Any interested party or the district may file objections to the preliminary judgment within 40 calendar days of the filing of the request for an extension of time to begin the operation of a video camera.
  4. Any reply to an objection to a preliminary judgment must be filed within 45 calendar days of the filing of a request for an extension of time to begin the operation of a video camera.
  5. The commissioner shall issue a final decision within 55 calendar days of the filing of the request for an extension of time to begin the operation of a video camera, unless the commissioner determines that an evidentiary hearing would be helpful in deciding the issues raised. If the commissioner decides to hold an evidentiary hearing, the commissioner shall establish the timelines and procedures to be used. Whether to conduct the hearing by telephone or other electronic methods will be considered.

Commissioner Consideration

No Appeal

Eastland ISD

EHBAF(LEGAL)-P

UPDATE 113

DATE ISSUED: 6/14/2019