By: Huberty (Senate Sponsor - Taylor) H.B. No. 3906

(In the Senate - Received from the House May 9, 2019; May 10, 2019, read first time and referred to Committee on Education; May 19, 2019, reported adversely, with favorable Committee Substitute by the following vote: Yeas 11, Nays 0; May 19, 2019, sent to printer.) Click here to see the committee vote

COMMITTEE SUBSTITUTE FOR H.B. No. 3906 By: Taylor

A BILL TO BE ENTITLED

AN ACT

relating to the assessment of public school student development, comprehension, and performance, including the administration of assessment instruments for that purpose.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Effective September 1, 2021, Section 21.4551(c), Education Code, is amended to read as follows:

(c) The commissioner by rule shall require a teacher to attend a reading academy if the teacher provides instruction in reading, mathematics, science, or social studies to students at the sixth, seventh, or eighth grade level at a campus that fails to satisfy any standard under Section 39.054(e) on the basis of student performance on the language arts [reading] assessment instrument administered under Section 39.023(a) to students in any grade level at the campus.

SECTION 2. Section 28.006, Education Code, is amended by amending Subsections (b), (c), (d), and (f) and adding Subsections (b-1), (b-2), (c-2), (c-3), and (l) to read as follows:

(b) The commissioner shall adopt a list of reading instruments that a school district may use to diagnose student reading development and comprehension. For use in diagnosing the reading development and comprehension of kindergarten students, the commissioner shall adopt a [include on the commissioner's list at least two] multidimensional assessment tool that includes [tools. A multidimensional assessment tool on the commissioner's list must either include] a reading instrument and tests [test] at least three developmental skills, including literacy[, or test at least two developmental skills, other than literacy, and be administered in conjunction with a separate reading instrument that is on a list adopted under this subsection]. A multidimensional assessment tool administered as provided by this subsection is considered to be a reading instrument for purposes of this section. A district-level committee established under Subchapter F, Chapter 11, may adopt a list of reading instruments for use in the district in a grade level other than kindergarten in addition to the reading instruments on the commissioner's list. Each reading instrument adopted by the commissioner or a district-level committee must be based on scientific research concerning reading skills development and reading comprehension. A list of reading instruments adopted under this subsection must provide for diagnosing the reading development and comprehension of students participating in a program under Subchapter B, Chapter 29.

(b-1) The commissioner may approve an alternative reading instrument for use in diagnosing the reading development and comprehension of kindergarten students that complies with the requirements under Subsection (b).

(b-2) The agency may develop reading instruments for purposes of this section.

(c) Each school district shall administer, at the [kindergarten and] first and second grade levels, a reading instrument on the list adopted by the commissioner or by the district-level committee. The district shall administer the reading instrument in accordance with the commissioner's recommendations under Subsection (a)(1).

(c-2) Each school district shall administer at the kindergarten level a reading instrument adopted by the commissioner under Subsection (b) or approved by the commissioner under Subsection (b-1). The district shall administer the reading instrument in accordance with the commissioner's recommendations under Subsection (a)(1).

(c-3) The commissioner by rule shall determine the performance on the reading instrument adopted under Subsection (b) that indicates kindergarten readiness.

(d) The superintendent of each school district shall:

(1) report to the commissioner and the board of trustees of the district the results of the reading instruments;

(2) not later than the 60th day after the date on which a reading instrument was administered report, in writing, to a student's parent or guardian the student's results on the [reading] instrument; and

(3) using the school readiness certification system provided to the school district in accordance with Section 29.161(e), report electronically each student's raw score on the reading instrument to the agency for use in the school readiness certification system.

(f) The agency shall ensure at least one reading instrument for each grade level for which a reading instrument is required to be administered under this section is available to school districts at no cost. [This section may be implemented only if funds are appropriated for administering the reading instruments. Funds, other than local funds, may be used to pay the cost of administering a reading instrument only if the instrument is on the list adopted by the commissioner.]

(l) The commissioner may adopt rules as necessary to implement this section. Section 2001.0045, Government Code, does not apply to rules adopted under this subsection.

SECTION 3. Effective September 1, 2021, Section 28.006(c-1), Education Code, is amended to read as follows:

(c-1) Each school district shall administer at the beginning of the seventh grade a reading instrument adopted by the commissioner to each student whose performance on the assessment instrument in language arts [reading] administered under Section 39.023(a) to the student in grade six did not demonstrate reading proficiency, as determined by the commissioner. The district shall administer the reading instrument in accordance with the commissioner's recommendations under Subsection (a)(1).

SECTION 4. Effective September 1, 2021, Sections 28.0211(a) and (c), Education Code, are amended to read as follows:

(a) Except as provided by Subsection (b) or (e), a student may not be promoted to:

(1) the sixth grade program to which the student would otherwise be assigned if the student does not perform satisfactorily on the fifth grade mathematics and language arts [reading] assessment instruments under Section 39.023; or

(2) the ninth grade program to which the student would otherwise be assigned if the student does not perform satisfactorily on the eighth grade mathematics and language arts [reading] assessment instruments under Section 39.023.

(c) Each time a student fails to perform satisfactorily on an assessment instrument specified under Subsection (a), the school district in which the student attends school shall provide to the student accelerated instruction in the applicable subject area, including reading instruction for a student who fails to perform satisfactorily on a language arts [reading] assessment instrument. After a student fails to perform satisfactorily on an assessment instrument a second time, a grade placement committee shall be established to prescribe the accelerated instruction the district shall provide to the student before the student is administered the assessment instrument the third time. The grade placement committee shall be composed of the principal or the principal's designee, the student's parent or guardian, and the teacher of the subject of an assessment instrument on which the student failed to perform satisfactorily. The district shall notify the parent or guardian of the time and place for convening the grade placement committee and the purpose of the committee. An accelerated instruction group administered by a school district under this section may not have a ratio of more than 10 students for each teacher.

SECTION 5. Effective September 1, 2021, Section 29.056(g), Education Code, is amended to read as follows:

(g) A district may transfer a student of limited English proficiency out of a bilingual education or special language program for the first time or a subsequent time if the student is able to participate equally in a regular all-English instructional program as determined by:

(1) agency-approved tests administered at the end of each school year to determine the extent to which the student has developed oral and written language proficiency and specific language skills in English;

(2) satisfactory performance on the language arts [reading] assessment instrument under Section 39.023(a) or an English language arts assessment instrument under Section 39.023(c), as applicable, with the assessment instrument administered in English, or, if the student is enrolled in the first or second grade, an achievement score at or above the 40th percentile in the reading and language arts sections of an English standardized test approved by the agency; and

(3) agency-approved criterion-referenced tests and the results of a subjective teacher evaluation.

SECTION 6. Section 29.1543, Education Code, is amended to read as follows:

Sec. 29.1543. EARLY EDUCATION REPORTS. The agency shall produce and make available to the public on the agency's Internet website annual district and campus-level reports containing information from the previous school year on early education in school districts and open-enrollment charter schools. A report under this section must contain:

(1) the information required by Section 29.1532(c) to be reported through the Public Education Information Management System (PEIMS);

(2) a description of the diagnostic reading instruments administered in accordance with Section 28.006(c) or (c-2);

(3) the number of students who were administered a diagnostic reading instrument administered in accordance with Section 28.006(c) or (c-2);

(4) the number of students whose scores from a diagnostic reading instrument administered in accordance with Section 28.006(c) or (c-2) indicate reading proficiency; [and]

(5) the number of kindergarten students who were enrolled in a prekindergarten program in the previous school year in the same district or school as the district or school in which the student attends kindergarten;

(6) the number and percentage of students who perform satisfactorily on the third grade reading or mathematics assessment instrument administered under Section 39.023, disaggregated by whether the student was eligible for free prekindergarten under Section 29.153;

(7) the number of students described by Subdivision (6) who attended kindergarten in the district, disaggregated by:

(A) whether the student met the kindergarten readiness standard on the reading instrument adopted under Section 28.006;

(B) whether the student attended prekindergarten in the district; and

(C) the type of prekindergarten the student attended, if applicable; and

(8) the information described by Subdivisions (6) and (7) disaggregated by whether the student is educationally disadvantaged.

SECTION 7. Effective September 1, 2021, Section 29.1543, Education Code, is amended to read as follows:

Sec. 29.1543. EARLY EDUCATION REPORTS. The agency shall produce and make available to the public on the agency's Internet website annual district and campus-level reports containing information from the previous school year on early education in school districts and open-enrollment charter schools. A report under this section must contain:

(1) the information required by Section 29.1532(c) to be reported through the Public Education Information Management System (PEIMS);

(2) a description of the diagnostic reading instruments administered in accordance with Section 28.006(c) or (c-2);

(3) the number of students who were administered a diagnostic reading instrument administered in accordance with Section 28.006(c) or (c-2);

(4) the number of students whose scores from a diagnostic reading instrument administered in accordance with Section 28.006(c) or (c-2) indicate reading proficiency; [and]

(5) the number of kindergarten students who were enrolled in a prekindergarten program in the previous school year in the same district or school as the district or school in which the student attends kindergarten;

(6) the number and percentage of students who perform satisfactorily on the third grade language arts or mathematics assessment instrument administered under Section 39.023, disaggregated by whether the student was eligible for free prekindergarten under Section 29.153;

(7) the number of students described by Subdivision (6) who attended kindergarten in the district, disaggregated by:

(A) whether the student met the kindergarten readiness standard on the reading instrument adopted under Section 28.006;

(B) whether the student attended prekindergarten in the district; and

(C) the type of prekindergarten the student attended, if applicable; and

(8) the information described by Subdivisions (6) and (7) disaggregated by whether the student is educationally disadvantaged.

SECTION 8. Section 39.022, Education Code, is amended to read as follows:

Sec. 39.022. ASSESSMENT PROGRAM. The commissioner, after providing for a public hearing in coordination with the State Board of Education, by rule shall create and implement a statewide assessment program that is based on the essential knowledge and skills adopted by the State Board of Education under Subchapter A, Chapter 28, [knowledge- and skills-based] to ensure school accountability for student achievement that achieves the goals provided under Section 4.002. After adopting rules under this section, the commissioner [State Board of Education] shall consider the importance of maintaining stability in the statewide assessment program when adopting any subsequent modification of the rules.

SECTION 9. Effective September 1, 2021, Section 39.023, Education Code, is amended by amending Subsection (a) and adding Subsection (a-4) to read as follows:

(a) The agency shall adopt or develop appropriate criterion-referenced assessment instruments designed to assess essential knowledge and skills in language arts [reading, writing], mathematics, social studies, and science. Except as provided by Subsection (a-2), all students, other than students assessed under Subsection (b) or (l) or exempted under Section 39.027, shall be assessed in:

(1) mathematics, annually in grades three through [seven without the aid of technology and in grade] eight [with the aid of technology on any assessment instrument that includes algebra];

(2) language arts, including reading and writing, annually in grades three through eight;

(3) [writing, including spelling and grammar, in grades four and seven;

[(4)] social studies, in grade eight;

(4) [(5)] science, in grades five and eight; and

(5) [(6)] any other subject and grade required by federal law.

(a-4) For purposes of Subsection (a)(1), the commissioner by rule may designate sections of a mathematics assessment instrument for a grade level that:

(1) may be completed with the aid of technology; and

(2) must be completed without the aid of technology.

SECTION 10. Section 39.023, Education Code, is amended by amending Subsections (a-12), (a-13), (b-1), (c), and (c-3) and adding Subsections (a-14), (a-15), (c-7), (c-8), and (o) to read as follows:

(a-12) Each [An] assessment instrument adopted or developed under Subsection (a) must be designed so that:

(1) if administered to students in grades three through five, 85 percent of students will be able to complete all [the] assessment instruments for that grade [instrument] within an aggregate period equal to the number of assessment instruments for that grade multiplied by 120 minutes; and

(2) if administered to students in grades six through eight, 85 percent of students will be able to complete all [the] assessment instruments for that grade [instrument] within an aggregate period equal to the number of assessment instruments for that grade multiplied by 180 minutes.

(a-13) The amount of time allowed for administration of an assessment instrument adopted or developed under Subsection (a) may not exceed eight hours, and the administration may occur in multiple parts over more than [on only] one day.

(a-14) Subsections (a-12) and (a-13) do not apply to the administration of assessment instruments for a grade level if the time restriction imposed would result in a determination by the commissioner that an assessment instrument is no longer valid and reliable.

(a-15) Subsections (a-12) and (a-13) do not apply to a classroom portfolio method used to assess writing performance.

(b-1) The agency, in conjunction with appropriate interested persons, shall redevelop assessment instruments adopted or developed under Subsection (b) for administration to significantly cognitively disabled students in a manner consistent with federal law. An assessment instrument under this subsection may not require a teacher to prepare tasks or materials for a student who will be administered such an assessment instrument. A classroom portfolio method used to assess writing performance may require a teacher to prepare tasks and materials [Assessment instruments adopted or developed under this subsection shall be administered not later than the 2014-2015 school year].

(c) The agency shall also adopt end-of-course assessment instruments for secondary-level courses in Algebra I, biology, English I, English II, and United States history. The Algebra I end-of-course assessment instrument must be administered with the aid of technology, but may include one or more parts that prohibit the use of technology. The English I and English II end-of-course assessment instruments must each assess essential knowledge and skills in both reading and writing [in the same assessment instrument] and must provide a single score. A school district shall comply with commissioner [State Board of Education] rules regarding administration of the assessment instruments listed in this subsection. If a student is in a special education program under Subchapter A, Chapter 29, the student's admission, review, and dismissal committee shall determine whether any allowable modification is necessary in administering to the student an assessment instrument required under this subsection. The commissioner [State Board of Education] shall administer the assessment instruments. [The State Board of Education shall adopt a schedule for the administration of end-of-course assessment instruments that complies with the requirements of Subsection (c-3).]

(c-3) Except as provided by Subsection (c-7), in [In] adopting a schedule for the administration of assessment instruments under this section, the commissioner [State Board of Education] shall ensure that [require:

[(1)] assessment instruments administered under Subsection (a) or (c) are not [to be] administered on the first instructional day of a week [a schedule so that the first assessment instrument is administered at least two weeks later than the date on which the first assessment instrument was administered under Subsection (a) during the 2006-2007 school year; and

[(2) the spring administration of end-of-course assessment instruments under Subsection (c) to occur in each school district not earlier than the first full week in May, except that the spring administration of the end-of-course assessment instruments in English I and English II must be permitted to occur at an earlier date].

(c-7) Subsection (c-3) does not apply to a classroom portfolio method used to assess writing performance if student performance under that method is less than 50 percent of a student's overall assessed performance in writing.

(c-8) Beginning with the 2022-2023 school year, an assessment instrument developed under Subsection (a) or (c) may not present more than 75 percent of the questions in a multiple choice format.

(o) The agency shall adopt or develop optional interim assessment instruments for each subject or course for each grade level subject to assessment under this section. A school district may not be required to administer interim assessment instruments adopted or developed under this subsection. An interim assessment instrument:

(1) must be:

(A) predictive of the assessment instrument for the applicable subject or course for that grade level required under this section; and

(B) administered electronically; and

(2) may not be used for accountability purposes.

SECTION 11. Subchapter B, Chapter 39, Education Code, is amended by adding Section 39.02302 to read as follows:

Sec. 39.02302. ADVISORY COMMITTEES FOR ASSESSMENT INSTRUMENTS. (a) The commissioner shall appoint a technical advisory committee to advise the commissioner and the agency regarding the development of valid and reliable assessment instruments for purposes of this chapter. The members of the committee must be experts on educational assessments and psychometrics.

(b) The commissioner shall appoint an educator advisory committee to advise the commissioner and the agency regarding the development of academically appropriate assessment instruments for purposes of this chapter. The members of the committee must include experts in curriculum and instruction.

(c) The agency may compensate a member of the technical or educator advisory committee or reimburse the member for expenses incurred in the performance of duties related to the member's service on the committee.

(d) The selection of or payment to a member of the technical or educator advisory committee is not subject to Chapter 2110 or 2254, Government Code.

SECTION 12. Section 39.0234, Education Code, is amended to read as follows:

Sec. 39.0234. ELECTRONIC ADMINISTRATION OF ASSESSMENT INSTRUMENTS [BY COMPUTER]. (a) The agency shall ensure that assessment instruments required under Section 39.023 are capable of being administered electronically [by computer].

(b) A school district shall administer each assessment instrument required under Section 39.023 electronically unless the district receives a waiver from the commissioner. This subsection does not apply to the administration of an assessment instrument to a student who requires accommodations in the administration of the assessment instrument that are not available if administered electronically.

(c) Except as provided by Section 39.02341, a school district must comply with Subsection (b) beginning with the 2022-2023 school year. This subsection expires September 1, 2023. [The commissioner may not require a school district or open-enrollment charter school to administer an assessment instrument by computer.]

SECTION 13. Subchapter B, Chapter 39, Education Code, is amended by adding Sections 39.02341, 39.0236, and 39.0237 to read as follows:

Sec. 39.02341. TRANSITION TO ELECTRONIC ADMINISTRATION OF ASSESSMENT INSTRUMENTS. (a) The agency shall develop a transition plan to administer all assessment instruments required under Section 39.023 electronically beginning not later than the 2022-2023 school year.

(b) As part of the transition plan, the agency may provide results on an assessment instrument required under Section 39.023 on an accelerated schedule to school districts that administer the assessment instrument electronically. For purposes of this subsection, the commissioner by rule may require the results on an assessment instrument administered electronically to be reported to the district as soon as practicable after administration.

(c) As part of the transition plan, the commissioner may require a school district to comply with Section 39.0234(b) before the 2022-2023 school year.

(d) Not later than December 1, 2020, the agency shall submit to the governor, the lieutenant governor, and the members of the legislature a report on the progress of transitioning to electronic administration of all assessment instruments required under Section 39.023. The report must include:

(1) information from school districts assessing the needs of those districts in transitioning to electronic administration;

(2) any recommended changes to state law to assist in the transition; and

(3) any recommended adjustments to the timeline for statewide implementation of electronic administration.

(e) Not later than December 1, 2022, the agency shall submit to the governor, the lieutenant governor, and the members of the legislature a report on the anticipated impact to school districts of the implementation of electronic administration of all assessment instruments required under Section 39.023.

(f) This section expires September 1, 2023.

Sec. 39.0236. INTEGRATED FORMATIVE ASSESSMENT PILOT PROGRAM. (a) The agency shall establish a pilot program in which participating school districts administer to students integrated formative assessment instruments for subjects or courses for a grade level subject to assessment under Section 28.006 or 39.023.

(b) A school district may elect to participate in the pilot program.

(c) A school district's participation in the pilot program does not affect the district's obligations regarding the administration of assessment instruments required under Section 39.023.

(d) Not later than December 1 of each even-numbered year, the agency shall submit to the governor, the lieutenant governor, and the members of the legislature a report on the pilot program that includes:

(1) an analysis of whether the administration of integrated formative assessment instruments under the pilot program provided any improvement in instructional support during the preceding two school years; and

(2) a determination of the feasibility of replacing the assessment instruments required under Section 39.023 with integrated formative assessment instruments.

Sec. 39.0237. CONSIDERATION OF PREKINDERGARTEN ASSESSMENT INSTRUMENTS PROHIBITED. Performance on an assessment instrument administered to students in prekindergarten may not be considered for any purpose under this chapter or Chapter 39A.

SECTION 14. Section 39.0241(a), Education Code, is amended to read as follows:

(a) The commissioner shall determine the level of performance considered to be satisfactory on the assessment instruments, including:

(1) an approaches grade level performance standard in the applicable subject or course that indicates that a student is likely to succeed in the subject for the subsequent grade level or in the subsequent course with targeted intervention;

(2) a meets grade level performance standard in the applicable subject or course that indicates that a student has a high likelihood of success in the subject for the subsequent grade level or in the subsequent course but may still need short-term, targeted intervention; and

(3) a masters grade level performance standard in the applicable subject or course that indicates that a student is expected to succeed in the subject for the subsequent grade level or in the subsequent course with little or no academic intervention.

SECTION 15. Section 39.026, Education Code, is amended to read as follows:

Sec. 39.026. LOCAL OPTION. In addition to the assessment instruments adopted by the agency [and administered by the State Board of Education], a school district may adopt and administer criterion-referenced or norm-referenced assessment instruments, or both, at any grade level. A norm-referenced assessment instrument adopted under this section must be economical, nationally recognized, and state-approved.

SECTION 16. Sections 39.0261(a), (e), and (f), Education Code, are amended to read as follows:

(a) In addition to the assessment instruments otherwise authorized or required by this subchapter:

(1) each school year and at state cost, a school district may administer to students in the spring of the eighth grade an established, valid, reliable, and nationally norm-referenced preliminary college preparation assessment instrument for the purpose of diagnosing the academic strengths and deficiencies of students before entrance into high school;

(2) each school year and at state cost, a school district may administer to students in the 10th grade an established, valid, reliable, and nationally norm-referenced preliminary college preparation assessment instrument for the purpose of measuring a student's progress toward readiness for college and the workplace; and

(3) high school students in the spring of the 11th grade or during the 12th grade may select and take once, at state cost:

(A) [,] one of the valid, reliable, and nationally norm-referenced assessment instruments used by colleges and universities as part of their undergraduate admissions processes; or

(B) the assessment instrument designated by the Texas Higher Education Coordinating Board under Section 51.334.

(e) Subsection (a)(3) does not prohibit a high school student [in the spring of the 11th grade or during the 12th grade] from selecting and taking, at the student's own expense, an assessment instrument described by that subdivision [one of the valid, reliable, and nationally norm-referenced assessment instruments used by colleges and universities as part of their undergraduate admissions processes more than once].

(f) The provisions of this section regarding assessment instruments administered under Subsection (a)(1) or (2) apply only if the legislature appropriates funds for those purposes [of this section].

SECTION 17. Subchapter Z, Chapter 39A, Education Code, is amended by adding Section 39A.907 to read as follows:

Sec. 39A.907. ASSESSMENT INSTRUMENT STUDY. (a) The commissioner shall contract for a study to determine whether, for each applicable grade level, each assessment instrument administered under Section 39.023(a) during the 2018-2019 school year or scheduled to be administered during the 2019-2020 school year is written at the appropriate reading level for students in that grade level and includes only passages written at a reading level not higher than the grade level at which the assessment instrument is administered.

(b) In contracting for the study, the commissioner shall use a competitive process to select an independent entity to conduct the study that is not an entity that develops or otherwise reviews assessment instruments under Chapter 39.

(c) Chapter 2254, Government Code, does not apply to a contract procured under this section.

(d) Not later than December 1, 2019, the commissioner shall submit a report to the governor, the lieutenant governor, the legislature, and the presiding officer of each legislative standing committee with jurisdiction over primary and secondary education that includes the results of the study.

(e) This section expires September 1, 2021.

SECTION 18. Section 21.410, Education Code, is repealed.

SECTION 19. Unless this Act provides for an effective date later than September 1, 2019, this Act applies beginning with the 2019-2020 school year.

SECTION 20. Except as otherwise provided by this Act:

(1) this Act takes effect immediately if this Act receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution; and

(2) if this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2019.

* * * * *