SECTION 66.28. Requirements for Publisher Participation

(a) A publisher with adopted materials shall comply with product standards and specifications.

(1) Hard copy instructional materials adopted by the State Board of Education (SBOE) shall comply with the standards in the latest edition of Manufacturing Standards and Specifications for Textbooks approved by the National Advisory Commission on Textbook Specifications, as applicable. A publisher shall file a statement certifying instructional materials submitted for consideration will meet applicable product standards and specifications if adopted. Each statement must be made in a format designated by the commissioner of education, signed by a company official, and filed on or before the deadline specified in the schedule of adoption procedures in each proclamation. If the commissioner determines that good cause exists, the commissioner may approve an exception for a specific portion or portions of this requirement.

(2) A publisher that offers electronic instructional materials must provide a report for each electronic component that verifies that the components follow the Web Content Accessibility Guidelines (WCAG) identified in the proclamation and technical standards required by the Federal Rehabilitation Act, Section 508. The report must be prepared by an independent third party and be based on an audit testing a random sampling of each different type of electronic component as outlined in each proclamation. If applicable, the number of pages to be audited to meet the requirements in the proclamation shall be determined by the publisher.

(3) A publisher that provides access to materials to students with disabilities through an alternate format shall include a link to that material on the entrance page of the main product.

(4) Materials delivered online shall meet minimum web-based standards.

(5) If, during the contract period, the commissioner determines that any adopted instructional materials have faulty manufacturing characteristics or are made of inferior materials, the materials shall be replaced by the publisher without cost to the state.

(6) If, during the contract period, the commissioner determines that any publisher's adopted instructional materials do not comply with the WCAG standards identified in the proclamation or the technical standards required by the Federal Rehabilitation Act, Section 508, the publisher's instructional materials contract may be presented to the SBOE for termination.

(7) A publisher of adopted instructional materials shall make available samples that meet the requirements of this subsection to an SBOE member upon that member's request, beginning on the date the publishers are required to submit their final samples to the Texas Education Agency (TEA).

(b) Publishers participating in the adoption process are responsible for all expenses incurred by their participation.

(c) A publisher that intends to offer instructional materials for adoption shall submit a statement of intent to bid on or before the date specified in the schedule of adoption procedures.

(1) The statement of intent to bid shall be submitted in a format designated by the commissioner.

(2) A publisher shall indicate in the statement of intent to bid the percentage of Texas essential knowledge and skills or Texas Prekindergarten Guidelines that the publisher believes are sufficiently covered in each instructional materials submission.

(3) A publisher shall specify hardware and system requirements needed to review any item included in an instructional materials submission.

(4) Additions to a publisher's statement of intent to bid shall not be accepted after the deadline for filing statements of intent to bid, except as allowed in the schedule of adoption procedures included in a proclamation.

(5) A publisher that intends to offer instructional materials for midcycle review shall submit a statement of intent to bid and price information on or before the date specified in the schedule of adoption procedures under midcycle review. The statement of intent to bid must:

(A) specify the manner in which instructional materials will be provided to school districts as specified in §66.27(k)(2) of this title (relating to Proclamation, Public Notice, and Schedule for Adopting Instructional Materials); and

(B) include payment of the fee for review of instructional materials submitted for midcycle review.

(d) A publisher that intends to offer instructional materials for review shall comply with the following requirements for providing pre-adoption samples.

(1) Complete electronic samples of student and teacher components of instructional materials shall be provided to the TEA and the 20 regional education service centers (ESCs) on or before the date specified in the schedule of adoption procedures in a proclamation. Samples submitted for review shall be complete versions of the final product and must include all content intended to be in the final product, not just the content identified in the correlations. Samples of electronic products must be fully functional for review purposes and meet any other specifications identified in the proclamation. The original sample submission must remain unchanged through the entire review and adoption process, though updated samples can be added to the publisher's submission. These samples are copyrighted by the publisher and are not to be downloaded for use in classrooms or for any purpose other than public review.

(2) A publisher of prekindergarten materials is not required to submit electronic samples of submitted prekindergarten instructional materials. Samples of submitted prekindergarten materials must match the format of the products to be provided to schools upon ordering.

(3) Electronic samples must be free of sales or marketing materials.

(4) These samples shall be made available electronically for public review. Publishers of instructional content accessed electronically shall provide all necessary information, such as locator and login information and passwords, required to ensure public access to their programs throughout the review period.

(5) If the commissioner determines that good cause exists, the commissioner may extend the deadline for filing samples with ESCs. At its discretion, the SBOE may remove from consideration any materials proposed for adoption that were not properly supplied to the ESCs, the TEA, or SBOE members.

(6) A publisher shall provide a complete description of all student and teacher components of an instructional materials submission.

(7) On request of a school district, a publisher shall provide an electronic sample of submitted instructional materials and may also provide print sample copies.

(8) One sample copy of each student and teacher component of an instructional materials submission shall be provided for each member of the appropriate state review panel in accordance with instructions provided by the TEA. Samples for review must be as free from factual and editorial error as possible and reflect the quality of the final product intended to go into classrooms. Publishers have the option to provide reviewers with print samples, electronic samples in an open file format or closed format, or galley proofs. An electronic sample of print instructional materials must be offered in a format that simulates the print or "view only" version and that does not contain links to external sources. To ensure that the evaluations of state review panel members are limited to student and teacher components submitted for adoption, publishers shall not provide ancillary materials or descriptions of ancillary materials to state review panel members. The state does not guarantee return of sample instructional materials.

(9) The TEA, ESCs, and participating publishing companies shall work together to ensure that hardware or special equipment necessary for review of any item included in a student and/or teacher component of an instructional materials submission is available in each ESC. Participating publishers may be required to lend such hardware or special equipment to any member of a state review panel who does not have access to the necessary hardware or special equipment.

(10) Electronic samples must allow for multiple, simultaneous user access and be equipped with a word-search feature.

(e) The TEA may request additional samples if they are needed.

(f) A publisher that intends to offer instructional materials for adoption shall comply with the following bid requirements.

(1) Publishers shall file official bids with the commissioner according to the schedule of adoption procedures and in a manner designated by the commissioner.

(2) The official bid filed by a publisher shall include separate prices for each item included in an instructional materials submission. A publisher shall guarantee that individual items included in the student and/or teacher component are available for local purchase at the individual prices listed for the entire contract period.

(3) A publisher may submit supplemental bids with new package options or lower prices for existing packages or components according to the schedule of adoption procedures included in the proclamation if the publisher filed an initial bid for that course or grade level by the deadline in the schedule of adoption procedures. Supplemental bids may not be submitted for prices higher than were provided in the initial bids.

(g) Each instructional material or ancillary material that is offered as part of a bundle must also be available for purchase individually.

(h) A publisher that intends to offer instructional materials for adoption shall comply with the following additional requirements.

(1) A publisher shall submit to the TEA a signed affidavit including the following:

(A) certification that each individual whose name is listed as an author or contributor of the instructional materials contributed to the development of the instructional materials;

(B) a general description of each author's or contributor's involvement in the development of the instructional materials; and

(C) certification that all corrections required by the commissioner and SBOE have been made.

(2) Student materials offered for possible adoption may include consumable components in subjects and grade levels in which consumable materials are not specifically called for in the proclamation. In such cases, publishers must meet the following conditions.

(A) The per student price of the materials must include the cost of replacement copies of consumable student components for the full term of the adoption and contract, including any extensions of the contract terms, but for no more than 12 years. The offer must be set forth in the publisher's official bid.

(B) The publisher's official bid shall contain a clear explanation of the terms of the sale, including the publisher's agreement to supply consumable student materials for the duration of the contract and extensions as noted in subparagraph (A) of this paragraph.

(C) The publisher and the school district shall determine the manner in which consumable student materials are supplied beyond the initial order year.

(i) A publisher may not submit instructional materials for review that have been authored or contributed to by a current employee of the TEA.

(j) A publisher or author may not solicit input, directly or indirectly, on new or revised content from a member of the state review panel for a product the panelist reviewed while the product is being considered or even after the product has been adopted or rejected.

(k) On or before the deadline established in the schedule of adoption procedures, publishers shall submit correlations of instructional materials submitted for review with essential knowledge and skills required by the proclamation. Correlations shall be provided for materials designed for student use and materials designed for teacher use and must identify evidence of each student expectation addressed in the ways specified in §66.27(h) of this title. Correlations shall be submitted in a format designated by the commissioner.

(l) A publisher shall provide a list of all corrections required to be made to each student and teacher component of an instructional materials submission to bring them into compliance with applicable laws, rules, or the proclamation. The list must be in a format designated by the commissioner and filed on or before the deadline specified in the schedule of adoption procedures. If no corrections are necessary, the publisher shall file a statement to that effect in a format designated by the commissioner on or before the deadline in the schedule for submitting the list of corrections.

(m) On or before the deadline for submitting lists of corrections, publishers shall submit certification that all instructional materials have been edited for accuracy, content, and compliance with requirements of the proclamation.

(n) One complete electronic sample copy in an open file format or closed format of each student and teacher component of adopted instructional materials that incorporate all corrections required by the SBOE shall be filed with the commissioner on or before the date specified in the schedule of adoption procedures. The complete sample copies filed with the TEA must be representative of the final program.

(o) A publisher who intends to offer instructional materials for adoption shall comply with additional requirements included in a proclamation related to submission of instructional materials for adoption.

Source Note: The provisions of this §66.28 adopted to be effective May 5, 2016, 41 TexReg 3137; amended to be effective March 27, 2018, 43 TexReg 1846; amended to be effective March 24, 2020, 45 TexReg 1989