By: Davis S.B. No. 1871
A BILL TO BE ENTITLED
AN ACT
relating to a contracted services program for certain students with
pervasive developmental disorder or intellectual disability.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 29, Education Code, is amended by adding
Subchapter K to read as follows:
SUBCHAPTER K. Contracted Services Program
Sec. 29.401. DEFINITIONS. In this subchapter:
(1) "Parent" includes a guardian, custodian, or other
person with authority to act on behalf of a student.
(2) "Pervasive developmental disorder" includes, as
defined by the most recent edition of the Diagnostic and
Statistical Manual of Mental Disorders:
(A) Autistic disorder;
(B) Asperger's disorder;
(C) Pervasive developmental disorder not
otherwise specified;
(D) Rett's disorder; and
(E) Childhood disintegrative disorder.
(3) "Program" means the contracted services program
for eligible students described by this subchapter.
(4) "Qualifying institution":
(A) means a nongovernmental community-based
educational, medical, or therapeutic establishment that:
(i) provides for the educational, medical,
or therapeutic needs of students with pervasive developmental
disorder or intellectual disability; and
(ii) is selected for participation in the
program, as provided by Section 29.404; and
(B) does not include a school that provides
education in a home setting or that limits enrollment to relatives
of the school's staff.
Sec. 29.402. PROGRAM. An eligible student under Section
29.403 may, at the option of the student's parent:
(1) attend any public school in the district in which
the student resides;
(2) attend a public school in a district other than the
district in which the student resides, pursuant to Section 25.001,
Education Code; or
(3) access contracted services as provided by Section
29.405 through a qualifying institution.
Sec. 29.403. ELIGIBLE STUDENT. (a) A student is eligible
to participate in the program if:
(1) the student is eligible to receive public school
services and is eligible under Section 29.003, Education Code to
participate in a school district's special education program; and
(2) the student has been diagnosed with pervasive
developmental disorder or as having an intellectual disability.
(b) Each school year, a school district or open-enrollment
charter school shall:
(1) provide written notice of the program to the
parent of a student who is eligible to participate in the program
under Subsection (a); and
(c) A student who establishes eligibility under this
section may continue participating in the program until the earlier
of the date the student graduates from high school or the student's
22nd birthday.
(d) A student establishes eligibility to participate in a
school district's special education program in the manner provided
by Subchapter A, Chapter 29, Education Code. If a student who has
not previously been identified as eligible to receive special
education services under Subchapter A, Chapter 29, Education Code,
and who attends a qualifying institution wishes to establish
eligibility to participate in the program, the qualifying
institution and school district in which the student resides shall
jointly determine whether the student would be eligible to receive
special education services if the student were enrolled in the
district.
(e) A student is not required to attend a public school for
any period of time in order to establish eligibility to participate
in the program.
(f) For a student who attends a qualifying institution under
this subchapter, the school district in which the student resides,
the qualifying institution, and the student's parent shall
biannually review:
(1) the continued presence of the student's original
diagnosis; and
(2) the student's continued eligibility for
participation in the program.
Sec. 29.404. FINANCING OF SERVICES PROVIDED BY QUALIFYING
INSTITUTION. (a) Except as otherwise provided by this section, for
a student who attends a qualifying institution under this
subchapter, a qualifying institution is entitled to an annual
amount of funding that is equal to the amount the institution would
receive for a student if the institution were an open-enrollment
charter school, as calculated under Sections 12.106(a)(2) and
(a-1), Education Code, less any amount to which the State
determines is necessary to meet the costs of administration,
oversight, and other elements of program development and
implementation.
(b) A student's program funding under this section may not
be financed by:
(1) money appropriated from the available school fund;
or,
(2) federal funds.
(c) The agency shall directly distribute the funding to the
qualifying institution. Qualifying institutions shall be
determined through a Request for Qualifications (RFQ) process
established by the Agency, in collaboration with the Department of
Assistive and Rehabilitative Services (DARS), subject to public
comment as to the criteria and standards to be used to establish
qualification. The agency and DARS shall have equal input in the RFQ
process and selection of qualifying institutions.
(d) For an eligible student to participate in the program,
the parent of the student must apply to the agency on behalf of the
student. The application must specify the qualifying institution
the student plans to attend and demonstrate that the student has
been accepted for admission by that institution. On receiving the
application from the parent of an eligible student, the agency
shall determine a student's eligibility in accordance with rules
adopted under Section 29.412. If the agency determines that the
student is eligible for participation in the program, the agency
shall notify the student's parent of the student's eligibility. A
parent may apply on behalf of the student to participate in the
program at any time.
(e) The agency shall direct the distribution of funds to the
qualifying institution the student attends after services have been
provided. The agency shall require that the qualifying institution
submit documentation of the student's attendance before the agency
directs funds to the qualifying institution. The qualifying
institution shall submit the documentation to the agency on a
monthly basis and the agency shall direct the distribution of funds
to the qualifying institution not later than the 30th day after
receiving the documentation.
(f) The student's program funding is the entitlement of the
student, under the supervision of the student's parent, and not
that of any institution.
(g) A qualifying institution may not share a student's
program funding with or refund or rebate a student's program
funding to the parent or the student in any manner.
Sec. 29.405. PARTICIPATION BY QUALIFYING INSTITUTIONS. (a)
To participate in the program, a qualifying institution must:
(1) either:
(A) be accredited by an accrediting association
recognized by the commissioner to accredit nongovernmental schools
in this state;
(B) have filed an application for accreditation
by an accrediting association described by Paragraph (A) that has
not been withdrawn, denied, or left pending for more than eighteen
months; or,
(C) recognized as an institution under the
Department of Assistive and Rehabilitative Services that provides
medical and therapeutic services for disorders listed in Section
29.401(2) of this subchapter.
(i) The Department of Assistive and
Rehabilitative Services has the rulemaking authority to create
rules regarding Section 29.405(a)(1)(C).
(2) not advocate or foster unlawful behavior or teach
hatred of any person or group on the basis of race, ethnicity,
national origin, or religion;
(3) comply with all health and safety laws applicable
to nongovernmental schools; and
(4) hold a valid occupancy permit if required by the
municipality in which the school is located.
(b) A qualifying institution must comply with all state laws
applicable to nongovernmental schools regarding criminal
background checks for employees and may not employ a person who is
not authorized under state law to work in a nongovernmental school.
(c) A nongovernmental community-based educational
establishment that provides for the educational needs of students
with pervasive developmental disorder or intellectual disability
may apply to the agency to participate in the program as a
qualifying institution. The agency, in consultation with the
Department of Assistive and Rehabilitative Services, shall create
and maintain a list of qualifying institutions and ensure the list
is available to the public.
Sec. 29.406. ADMISSIONS. (a) A qualifying institution
chosen by an eligible student's parent under this subchapter may
not deny admission by discriminating on the basis of the student's
race, ethnicity, religion, creed, or national origin and must
comply with the requirements of:
(1) 42 U.S.C. Section 2000d et seq. with respect to
nondiscrimination on the basis of race, color, or national origin;
and
(2) Section 504, Rehabilitation Act of 1973 (29 U.S.C.
Section 794), with respect to nondiscrimination on the basis of
disability.
(b) Except as provided by this subsection, a qualifying
institution that has more qualified program applicants for
attendance under this subchapter than available positions must fill
the available program positions by a random selection process. To
achieve continuity in education or services, an institution may
give preference among program applicants to a previously enrolled
student and to other students residing in the same household as a
previously enrolled student.
(c) A qualifying institution may submit a written request
for student records from the public school previously attended by
an eligible student, if applicable. Not later than the 10th working
day after the date the public school receives the request, the
public school shall deliver to the qualifying institution a copy of
the school's complete student records for that student, including
attendance records, disciplinary records, past results of any
assessment instruments administered to the student, the student's
individualized educational program, and any other comprehensive
assessments from each school the student previously attended. A
public school that is required to release student records under
this subsection shall comply with any applicable provision of the
Family Educational Rights and Privacy Act of 1974 (20 U.S.C.
Section 1232g).
Sec. 29.407. ACADEMIC ACCOUNTABILITY. (a) Each school
year, a qualifying institution shall establish academic goals for
each eligible student enrolled in the school. The goals must be
developed in a manner similar to an individualized education
program developed under Section 29.005, Education Code. At regular
intervals not less than three times each academic year, the school
shall provide a report to the student's parent describing the
student's progress toward achieving the academic goals developed
for the student under this subsection.
(b) Each qualifying institution that enrolls a student
under this subchapter shall, each spring, administer an assessment
instrument to the student in order to assess the student's academic
progress. The assessment instrument administered by the
institution may be an assessment instrument adopted under
Subchapter B, Chapter 39, Education Code.
(c) The institution shall provide:
(1) the student's results on assessment instruments
administered under Subsection (b) to the student's parent; and
(2) the aggregated results of any assessment
instruments administered under Subsection (b) to the public.
Sec. 29.408. FINANCIAL SOLVENCY. The commissioner may
adopt rules requiring a qualifying institution that accepts funding
under this subchapter to demonstrate financial solvency.
Sec. 29.409. QUALIFYING INSTITUTION AUTONOMY. (a) A
qualifying institution that accepts funding under this subchapter
is not an agent or arm of the state or federal government.
(b) Except as provided by this subchapter, the
commissioner, the agency, the State Board of Education, or any
other state agency may not regulate the educational program of a
qualifying institution that accepts funding under this subchapter.
(c) A qualifying institution that accepts funding under
this subchapter is not required to implement an individualized
education program developed for the student under Section 29.005,
Education Code. The student's parent and the qualifying
institution are responsible for determining the services and
educational program to be provided to the student.
Sec. 29.410. RESPONSIBILITIES OF PARENT AND STUDENT. (a)
It is the responsibility of the parent of an eligible student to:
(1) locate and select a qualifying institution;
(2) apply for admission to the qualifying institution;
and
(3) apply in the manner provided under Section 29.406
for participation in the program.
(b) A student participating in the program must comply with
the student code of conduct of the qualifying institution the
student attends. A student must attend the qualifying institution
each school day unless the student is excused by the school for
illness or other good cause.
Sec. 29.411. TRANSFER. (a) An eligible student
participating in the program may transfer to a public school or
another qualifying institution in the manner authorized by
commissioner rule. If a student transfers to another school under
this section after the beginning of the school year, the
commissioner shall prorate the amount of the student's program
funding between the qualifying institutions or the qualifying
institution and the school district, as applicable, according to
the length of the student's attendance at each school.
(b) The commissioner may adopt rules regarding the
frequency with which a parent may transfer an eligible student from
a qualifying institution to another qualifying institution or to a
public school.
Sec. 29.412. RULES. (a) The commissioner shall adopt rules
as necessary to implement, administer, and enforce the program,
including rules regarding:
(1) the calculation and distribution of payments for
qualifying institutions;
(2) application and approval procedures for
qualifying institution and student participation in the program,
including timelines for the application and approval procedures;
and
(3) student transfers under Section 29.411.
(b) A rule adopted under this section is binding on any
other state or local governmental entity, including a political
subdivision, as necessary to implement, administer, and enforce the
program.
Sec. 29.413. PROGRAM COMPLIANCE. (a) The agency shall
enforce this subchapter and any rule adopted under this subchapter
and may withhold funds from any district or qualifying institution
that violates this subchapter or a rule adopted under this
subchapter. Agency decisions are final and may not be appealed.
(1) Participation in the program does not create a
property right for either the parents or the participating
institution.
(b) The commissioner may revoke a qualifying institution's
permission to participate in the program if the commissioner
determines that the institution:
(1) has not met the requirements provided by this
subchapter;
(2) has willfully misrepresented information required
by this subchapter; or
(3) has failed to refund to the state in a timely
manner any overpayment of program funding made to the institution.
(c) If the commissioner revokes a qualifying institution's
permission to participate in the program under Subsection (b), the
agency shall immediately notify the public through the agency's
website of the revocation.
Sec. 29.414. LIABILITY. The agency is not civilly liable
for any action arising as the result of a student's participation in
the program.
Sec. 29.415. EVALUATION OF PROGRAM. (a) The commissioner
may designate, subject to available financial resources, an
impartial organization with experience in evaluating programs
similar to the program established under this subchapter to conduct
an annual evaluation of the program. The evaluation must be
conducted without the use of state funds.
(b) An evaluation under this section must compare
differences between qualifying institutions and public schools and
may include consideration of:
(1) student satisfaction;
(2) parent satisfaction;
(3) behavioral problems of program students attending
qualifying institutions as compared with students attending public
schools;
(4) class size;
(5) the fiscal impact to the state and school
districts;
(6) academic performance by comparable students as
measured by an assessment instrument required under Section
29.407(b);
(7) factors resulting in more than 25 percent of
eligible students in a school district attending a different school
district or a qualifying institution under this subchapter; and
(8) the practices of a qualifying institution that
contribute to any change in student behavior or academic
performance.
(c) The evaluation must apply appropriate analytical and
behavioral science methodologies to ensure public confidence in the
evaluation.
(d) Not later than December 1, 2014, the commissioner shall
submit to each member of the legislature a copy of any evaluation
conducted under this section.
(e) School districts and qualifying institutions shall
cooperate with the organization conducting the evaluation and shall
provide student assessment instrument results and any other
information necessary to complete the evaluation in compliance with
any applicable provision of the Family Educational Rights and
Privacy Act of 1974 (20 U.S.C. Section 1232g).
(f) The agency may accept grants to assist in funding the
evaluation subject to available financial resources.
Sec. 29.416. APPLICATION OF SUNSET ACT. (a) The contracted
services program is subject to Chapter 325, Government Code (Texas
Sunset Act), as if the program were a state agency. Unless
continued in existence as provided by that chapter, the program is
abolished and this subchapter expires September 1, 2017.
(b) To the extent Chapter 325, Government Code, imposes a
duty on a state agency under review, the agency shall perform that
duty as it relates to the program subject to available financial
resources.
SECTION 2. (a) The Texas Education Agency shall make the
contracted services program under Subchapter K, Chapter 29,
Education Code, as added by this Act, available for participation
beginning with the 2012-2013 academic school year.
(b) As soon as practicable, the commissioner of education
shall adopt and implement rules necessary for the administration of
the program.
SECTION 3. This Act takes effect September 1, 2011.