The Texas Education Agency (TEA) proposes the repeal of §§101.1 - 101.6 and new §§101.1, 101.3, 101.5, 101.7, 101.9, 101.11, 101.13, 101.21, 101.23, 101.25, 101.27, 101.29, 101.31, 101.33, 101.61, 101.63, 101.65, 101.81, 101.83, and 101.101 concerning the statewide assessment program. The sections provide requirements for the development and administration of tests, testing for graduation, testing accommodations and exemptions, test security and confidentiality, reporting of test results, and administering and reporting group-administered achievement tests as mandated by Texas Education Code (TEC), Chapter 39, Subchapter B.

The statewide assessment program has changed over recent years largely in response to changes required by the Texas Legislature. Changes have also occurred as needed for more effective implementation and administration across the state. A critical part of the accountability system, the assessment program is dynamic and continues to evolve, guided by its goal to provide all eligible Texas students an appropriate statewide assessment that measures and supports their achievement of the state-mandated curriculum. The proposed repeals and new sections include revisions to comply with changes in statute and revisions related to new assessments as well as other clarifying amendments.

The sections proposed for repeal were largely adopted by the State Board of Education (SBOE) in November 1995 and describe the current statewide assessment program. The intent of the proposed new sections is not only to reflect the recent changes to update the assessment program, but also to more effectively define, reinforce, and communicate state law and rules governing the assessment program. Hence, the new sections represent the following three changes. First, the proposed new sections include revisions to comply with changes in statute, including recently enacted Senate Bill (SB) 676, 77th Texas Legislature, 2001, which immediately modified state testing requirements for certain limited English proficient (LEP) students in Grades 3-8. SB 676 requires the SBOE and the commissioner of education to establish rules for assessing LEP students. Much of the detail on LEP exemptions has been moved to commissioner's rules in accordance with SB 676. Second, the chapter has been reorganized and revised to clarify the policy and standards, roles and responsibilities, and requirements of the statewide assessment program. Finally, the chapter has been revised to improve clarity and readability for all stakeholders in public education so that the rules may more effectively promote public understanding of the assessment program and full compliance with program requirements.

The proposed new sections have taken into consideration the federal court ruling in January 2000 by United States District Court Judge Edward Prado of San Antonio. This ruling in support of standardized, statewide testing in Texas public schools sets forth the constitutional and legal standards that states must meet in developing and implementing high-stakes tests that are valid and reliable and educational policies that are fair and reasonable. The agency has drafted the proposed new sections to ensure that the testing program continues to uphold the standards affirmed in this important case.

Major changes reflected in the proposed new sections include the following. The rule text has been reorganized under subchapters for greater clarity and readability for all public education stakeholders. These subchapters correspond to broad program areas. Reference to open-enrollment charter schools wherever public schools are referenced has been added to emphasize that charter schools must adhere to the requirements of the testing program. In addition, the proposed new sections specify that any testing irregularity would cause a charter to come under review by the SBOE for possible sanction or revocation. The proposed new sections include details relating to the Reading Proficiency Test in English (RPTE) and the State-Developed Alternative Assessment (SDAA) components of the statewide assessment program. Various test development, administration, and reporting requirements are specified. Language related to testing requirements for students receiving special education services has been revised to be consistent with federal law and regulations. The proposed new sections also give emphasis to training for every test administrator in the state that is provided annually by TEA through education service centers and test administrator manuals. Specific reporting deadlines are also mandated for scoring contractors to provide results for machine-scorable assessments.

The proposed new sections emphasize the inclusiveness of the assessment program, and exemption language has been minimized to the greatest extent possible. The decision-making process for providing an appropriate assessment as required for every eligible student is specified. Grade advancement requirements for the new testing program are specified and the responsibilities at the state and local levels in providing remediation are clarified. In addition, recommendations relating to the assessment program from the Comptroller's Public Education Integrity Task Force have been incorporated in the proposed new sections, including specifying the responsibility of the superintendent for maintaining the integrity of test administration, giving greater emphasis to the penalties for testing and data reporting irregularities, revising the penalties to follow those listed in the State Board for Educator Certification (SBEC) rules, and including parents or legal guardians in rules concerning notification by superintendents of testing requirements. Language is also included to clarify existing policy regarding group-administered tests.

Ann Smisko, Associate Commissioner for Curriculum, Assessment, and Technology, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. The proposed sections do not have fiscal implications because they contain no new costs but reflect existing testing program requirements. At the state level, the costs involved in the programs covered by the proposed new sections are already accounted for in existing fixed price contracts with the prime testing contractor. At the local level, districts would continue to administer appropriate assessments to students.

Ms. Smisko and Criss Cloudt, Associate Commissioner for Accountability Reporting and Research, have determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be to improve the clarity and readability of the rules for all stakeholders in public education so that the rules may more effectively promote public understanding of the assessment program and full compliance with program requirements. The Texas student assessment program provides Texas students, schools, and the public with an accurate gauge of students' academic progress in learning the key components of the Texas Essential Knowledge and Skills. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed.

Comments on the proposal may be submitted to Criss Cloudt, Accountability Reporting and Research, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. Comments may also be submitted electronically to rules@tea.state.tx.us or faxed to (512) 475-3499. All requests for a public hearing on the proposed sections submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 15 calendar days after notice of a proposed change in the sections has been published in the Texas Register .