Public Comment — TEA Proposed Rules to Adopt 2017 Performance-Based Monitoring Analysis System

Public Policy Input — 2017

TCDD partner letterhead


Via email:

June 29, 2017

Ms. Cristina De La Fuente-Valadez
Director, Rulemaking
Texas Education Agency
1701 N. Congress Avenue
Austin, TX 78701

Dear Ms. De La Fuente-Valadez:

RE: Comments on Proposed Rules, Texas Administrative Code, Title 19. Education, Part 2. Texas Education Agency, Chapter 97. Planning and Accountability, Subchapter AA. Accountability and Performance Monitoring, 19 TAC §97.1005

Thank you for the opportunity to comment on proposed 19 TAC §97.1005, which would adopt the 2017 Performance-Based Monitoring Analysis System (PBMAS) Manual. These comments are submitted on behalf of Disability Rights Texas, Coalition of Texans with Disabilities, The Arc of Texas, and the Texas Council for Developmental Disabilities.

Please feel free to contact us at the telephone numbers and email addresses provided below if you would like to discuss any of these comments further. We ‎would welcome meeting with staff of the Texas Education Agency (TEA) to discuss or clarify our comments:

  • Steven Aleman, Disability Rights Texas, 512-454-4816,
  • Rachel Gandy, Disability Rights Texas, 512-454-4816,
  • Chris Masey, Coalition of Texans with Disabilities, 512-680-6314,
  • Kyle Piccola, The Arc of Texas, 512 454-6694 ext. 7732,
  • Linda Logan, Texas Council for Developmental Disabilities, 512-437-5430,

We commend the Texas Education Agency (TEA) for highlighting the changes from 2016 Manual, particularly with respect to the obligations of school districts for Child Find and for meeting IDEA requirements to provide a free appropriate public education (FAPE). Further, TEA has provided a table which clearly denotes the elimination of Indicator #10 (SPED Representation). We appreciate seeing this, as promised, presented in such a clear manner.

The Current TEA Rule-making Process and Public Input/Stakeholder Involvement

As developed and proposed, changes to the PBMAS manual do not reflect the emphasis on public input evident in the governing rules on accountability by the US Department of Education adopted in the December 19, 2016, issue of the “Federal Register.” In that document, the term “stakeholder” is used 98 times. Notably, the construction used most often is “input from stakeholders, including the State Advisory Committee,” which suggests that “stakeholders” refers to individuals and organizations in addition to appointed members.

In contrast, the proposed 2017 Texas manual mentions stakeholder involvement in two places, but it does not identify the stakeholders, the interests they represent, the issues discussed, or how their involvement influenced the final disposition of the manual and the resolution of issues.

The process in Texas for involving people from outside TEA in developing recommendations for changes to the manual appears to have centered on one meeting of the Texas Continuous Improvement Steering (TCIS) Committee in February 2017. The participants were appointed committee members or invited participants and there was no broadly communicated information about opportunities for public input (or attendance) by others with an interest in accountability measures.

The public hearing on the 2017 manual that was held in June appears to be the only public input opportunity. This type of opportunity is generally considered more valuable if conducted in the development of the rules to be proposed. It is much less useful to the agency if the content of the rules (PBMAS Manual) has been already decided. For example, TEA received seven comments from ten different commenters on the 2016 PBMAS Manual, all of whom recommended changing Indicator #10 to rectify the way in which it set a cap of 8.5% on inclusion in the special education program. TEA disagreed with all commenters and made no changes. This same issue, in the context of PEIMS indicator #14, later resulted in a US Department of Education investigation, a change in TEA policy, and a new law prohibiting a monitoring system performance indicator that sets a cap on the number or percentage of students receiving special education services (SB 160, 85th Texas Legislature, 2017).

Texas Special Education Continuous Advisory Committee (CAC)
The distinction that the adoption preamble to the federal rules makes between stakeholders and the State Advisory Panel, which in Texas is known as the Texas Special Education Continuous Advisory Committee, or CAC, suggests that appointees to a federally mandated committee are not considered to be the only stakeholders to be involved in an open forum of diverse participants.

Even though the CAC is required to make recommendations concerning issues taken up in the manual, to the best of our knowledge, the CAC has not engaged in a discussion of recommendations for changes to the manual in a public meeting, has not entertained public comments concerning the same, and has not made recommendations.

The CAC has not had a robust process for inviting and accommodating public input and has only recently begun accepting public comment. When the opportunity to provide public comments was made available, unusual constraints included the length of testimony (three minutes regardless of the number of people testifying) and the number of people who would be permitted to testify (three, regardless of the numbers of persons wishing to testify). It was further required that information about the testimony be submitted well in advance of the meeting for review and approval, i.e., the committee would exercise control over who would be permitted to testify.

Senate Bill 436 of the 85th Texas Legislature, 2017, required the CAC to take proactive steps to encourage public participation. The committee has not developed the required policy and procedures as of this date and it is hoped that external input will be invited early in the process to ensure meaningful stakeholder and public involvement. The bill takes effect September 1, 2017.

Negative Effects of Removing Special Education Discipline Indicators from PBMAS

Since its inception, the Performance-Based Monitoring Analysis System (PBMAS) has provided access to data regarding discretionary discipline used in public schools. Most critically, previous PBMAS reports enabled stakeholders to compare discipline rates between students in special education and the rest of the student population at the district, regional, and state levels. Each year, these data consistently demonstrate that students with disabilities face a disproportionate share of the disciplinary actions handed down in Texas schools.

Unfortunately, TEA’s proposed “PBMAS Manual” for the 2017-2018 school year eliminates crucial discipline indicators. Such an action could harm students with disabilities and the State as a whole by:

  1. Halting or reversing gains made over the last decade;
  2. Overlooking transparency and performance improvement goals inherent in PBMAS; and
  3. Failing to monitor recent legislative reforms most efficiently.

The agency could avoid these negative consequences by keeping the existing discipline indicators in place until the reformed indicators are ready for implementation during the 2018-2019 school year.

Halting or Reversing Gains Made Over the Last Decade
Over time, public school administrators in Texas have relied less heavily on discretionary classroom removals for students with disabilities. Figures 1, 2, and 3 below demonstrate the decline in discretionary in-school suspensions (ISS), out-of-school suspensions (OSS), and disciplinary alternative education program (DAEP) placements over the last decade.

Figure 1. Rate of Discretionary In-School Suspensions (ISS) for Students in Special Education (SPED) vs. All Texas Students
Figure 1

Figure 2. Rate of Discretionary Out-of-School Suspensions (OSS) for Students in Special Education (SPED) vs. All Texas Students
Figure 2

Figure 3. Rate of Discretionary Placement in Disciplinary Alternative Education Programs (DAEP) for Students in Special Education (SPED) vs. All Texas Students
Figure 3

Still, PBMAS data consistently demonstrate that children in special education are more likely than the average Texas student to be removed from the classroom for discretionary reasons. The ISS, OSS, and DAEP indicators reveal that rates of removal are almost twice as high for students in special education than for all Texas students. These actions can have long-term negative impacts on a student’s development and education. For example, in a joint policy statement, the U.S. Departments of Education (USDE) and Health and Human Services (HHS) reported that children who are suspended or expelled are up to 10 times more likely to hold negative attitudes about school, experience academic failure, drop out, and become entangled in the justice system.1

Annual PBMAS reports shine a light on discipline practices in individual districts. Attention to this issue helped to facilitate a drop in discretionary discipline rates among students with disabilities. Eliminating the ISS, OSS, and DAEP indicators from upcoming reports could halt the positive trends seen across Texas since PBMAS was created. Even worse, diverting attention away from disciplinary practices even temporarily could allow districts to regress. This could threaten students’ ability to meet their IEP goals and successfully complete their educational experience.

Overlooking Transparency and Performance Improvement Goals Inherent in PBMAS
Since 2004, PBMAS reports have consistently accomplished two essential goals: enhancing transparency and improving performance at the district level. Eliminating the existing discipline indicators from next year’s “PBMAS Manual” will require TEA and other groups to rely on other sources (such as the “Discipline Data Validation Manual and the Annual Performance Report (APR)”) to fill in information gaps. Unfortunately, neither report accomplishes the State’s performance and transparency goals as effectively as PBMAS reports do each year.

The proposal for the “2017 PBMAS Manual” outlines TEA’s plan to preview the newest discipline indicators in the Discipline Data Validation Manual. This plan fails to allay stakeholder concerns because data validation indicators and PBMAS indicators have different objectives. Data validation indicators primarily exist to suggest an anomaly and improve data collection procedures.2 These indicators may enable districts to determine that anomalous data points reflect a systemic issue; however, these cases are “less typical” and do not represent the primary goal of the data validation system.3 By contrast, PBMAS indicators are designed to improve performance through the use of transparent cut points and public annual reporting.4 Assigning a definitive, publicized grade to a district for its performance on PBMAS indicators directs behavior and keeps the public informed. Without the influence of predetermined cut points and public scrutiny, districts have less of an incentive to adjust their discipline practices.

Similarly, statistics collected through Indicators 4A and 4B of the APR fall short of the State’s performance and transparency goals in two ways. First, these indicators are less transparent and impactful because they combine suspension and expulsion information. This does not allow report users to distinguish between unique types of disciplinary placements, such as discretionary ISS vs. discretionary OSS placements. Separation of these types of data make it possible to determine if the underlying source of disproportionality stems from an over reliance on a specific placement option, or if it exists systemically across placements. Districts can then adjust their behavior accordingly. Combining these data may instead mask important patterns and blind report users to serious issues.

Second, APR indicators fail to enhance transparency at the district level. Indicators 4A and 4B reveal the number and percent of districts that meet certain criteria; however, TEA does not release annual statistics on each individual district through the APR. This prohibits stakeholders from evaluating discipline trends in specific districts over time. Only through this analysis can school officials and the public spot, address, and prevent problems before they become significant.

Failing to Monitor Recent Legislative Reforms Most Efficiently
In June 2017, Governor Greg Abbott signed HB 674 (Johnson, E./Garcia) into law. The legislation prohibits public school officials from placing students below third grade in OSS for discretionary reasons. By passing the bill, legislators sought to address disproportionate rates of discretionary discipline faced by certain students, including those with disabilities.

Monitoring the implementation of HB 674 is crucial to the law’s success. PBMAS is an efficient tool that may be used to accomplish this task. Reports during the next school year will enable TEA and other stakeholders to monitor the predicted fall in discretionary OSS placement rates across districts. More importantly, existing PBMAS discipline indicators could allow the public to monitor unanticipated shifts in district behavior. For example, as school policies and cultures shift to keep more students on campus, some districts may begin to increase their use of ISS placements — a practice that already disproportionately affects students in special education.

Using existing PBMAS indicators, TEA and other stakeholders may track behavioral shifts without being slowed down by additional data requests. Keeping the ISS, OSS, and DAEP indicators in place during the next school year will therefore save agency resources and enable districts to address the bill’s unanticipated consequences more efficiently.

Negative Impact of Removing LEP Representation Indicator from PBMAS

Since its inception, the Performance-Based Monitoring Analysis System (PBMAS) Manual has included an indicator dedicated to providing disaggregation of data regarding limited English proficient (LEP) students in special education. (See Indicator 2C in 2004 PBMAS Manual versus Indicator 13 in 2016 PBMAS Manual.) This indicator has enabled stakeholders over time to evaluate the potential disproportion of students identified as LEP in the special education system.

Unfortunately, TEA’s proposed PBMAS Manual for the 2017-2018 school year eliminates this crucial LEP indicator. (See proposed Indicators 1 to 11 in 2017 PBMAS Manual.) Neglecting the enrollment of students identified as LEP in special education is misguided.

English language learners are a significant population in Texas public schools. The chart below demonstrates the continued growth of this population of students in Texas. (The total LEP population increased by 37.8% between 2006 and 2016.) There are now more than one million English language learners in the Texas public education system (Texas Education Agency, “Enrollment in Texas Public Schools, 2016-17,” 2017). Indeed, the number of English language learners is larger than all racial and ethnic groups in Texas public schools except for Hispanic and white students. If TEA will monitor disproportionality for smaller sized racial and ethnic groups such as African-Americans, Asians, and American Indians, then it should monitor disproportionality for students identified as LEP.

Figure 4. Number of Limited English Proficient (LEP) Students in Special Education vs. the Entire Student Population in Texas, 2006-2016
Figure 4

Proposed Special Education Indicator 11, entitled SPED Representation, is the TEA effort to conform its monitoring of disproportionality to new requirements of the U.S. Department of Education as specified in 34 C.F.R. §300.647. While the amended federal regulation does not explicitly require monitoring of disproportionality of students identified as LEP, the omission of LEP students in the federal rule does not prevent TEA from continuing its LEP indicator.

In its analysis of public comments on the amendment of 34 C.F.R. §300.647 upon final adoption in 2016, the U.S. Department of Education was clear that states may still take proactive steps to monitor the participation of LEP students in special education programs. Specifically, the U.S. Department of Education stated the following:

As with other areas of review, there is nothing in IDEA that would prevent review of data for significant disproportionality based on factors such as sex or English language proficiency. In addition, States may choose to review policies, procedures, and practices of an LEA for compliance with IDEA requirements under its general supervisory authority in IDEA section 612(a)(11) or monitoring authority in section 616; however, the consequences of a determination of significant disproportionality based on other factors not set out in these regulations — e.g., sex or English language proficiency — may not include mandating the use of comprehensive CEIS as set out in IDEA section 618(d)(2) and these regulations. — 81 Fed. Reg. 92416 (Dec. 19, 2016)

The TEA could avoid the negative consequences of dropping the LEP indicator by keeping the existing LEP indicator in place until analysis of LEP status is fully incorporated into proposed Indicator 11.

We appreciate this opportunity during rule-making to offer these observations on a critical aspect of PBMAS as it relates to qualifying for special education in Texas. Special education not only offers instruction and services of benefit to students, but also critical procedural safeguards and parental involvement mandates that ensure access and participation in public education. We look forward to continued dialog with TEA to ensure that no child with a disability is denied these legal and educational entitlements.

Disability Rights Texas
Coalition of Texans with Disabilities
The Arc of Texas
Texas Council for Developmental Disabilities


  1. U.S. Departments of Education (USDE) and Health and Human Services (HHS), Policy Statement on Expulsion and Suspension Policies in Early Childhood Settings (2014): 3, 
  2. Texas Education Agency, 2016 Discipline Data Validation Manual (2016): 4. 
  3. Ibid, 3. 
  4. Ibid, 4.