Texas 2011 - 82nd Regular

Texas Senate Bill SB1871 Compare Versions

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1	1	By: Davis S.B. No. 1871
2	2	(In the Senate - Filed March 11, 2011; March 24, 2011, read
3	3	first time and referred to Committee on Education; May 12, 2011,
4	4	reported adversely, with favorable Committee Substitute by the
5	5	following vote: Yeas 5, Nays 3; May 12, 2011, sent to printer.)
6	6	COMMITTEE SUBSTITUTE FOR S.B. No. 1871 By: Davis
7	7
8	8
9	9	A BILL TO BE ENTITLED
10	10	AN ACT
11	11	relating to a contracted services program for certain students with
12	12	a severe pervasive developmental disorder or a severe intellectual
13	13	disability.
14	14	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
15	15	SECTION 1. Chapter 29, Education Code, is amended by adding
16	16	Subchapter M to read as follows:
17	17	SUBCHAPTER M. CONTRACTED SERVICES PROGRAM
18	18	Sec. 29.501. DEFINITIONS. In this subchapter:
19	19	(1) "Parent" includes a guardian, custodian, or other
20	20	person with authority to act on behalf of a student.
21	21	(2) "Pervasive developmental disorder" includes, as
22	22	defined by the most recent edition of the Diagnostic and
23	23	Statistical Manual of Mental Disorders:
24	24	(A) autism;
25	25	(B) Asperger's syndrome;
26	26	(C) Rett's syndrome;
27	27	(D) childhood disintegrative disorder; and
28	28	(E) a pervasive developmental disorder, not
29	29	otherwise specified.
30	30	(3) "Program" means the contracted services program
31	31	for eligible students created by this subchapter.
32	32	(4) "Qualifying institution":
33	33	(A) means a nongovernmental community-based
34	34	educational and therapeutic establishment that:
35	35	(i) provides for the educational and
36	36	therapeutic needs of students with a severe pervasive developmental
37	37	disorder or severe intellectual disability;
38	38	(ii) qualifies for participation in the
39	39	program, as provided by Section 29.507; and
40	40	(iii) is eligible to receive insurance
41	41	payments or Medicaid payments made on behalf of an eligible
42	42	student; and
43	43	(B) does not include a school that solely
44	44	provides education in a home setting or that limits enrollment to
45	45	relatives of the school's staff.
46	46	Sec. 29.502. CONTRACTED SERVICES PROGRAM. (a) An eligible
47	47	student under Section 29.503 may:
48	48	(1) attend any public school in the district in which
49	49	the student resides;
50	50	(2) attend a public school in a district other than the
51	51	district in which the student resides; or
52	52	(3) receive contracted services through a qualifying
53	53	institution.
54	54	(b) Each school year, a school district or open-enrollment
55	55	charter school shall provide written notice of the program to the
56	56	parent of a student who is eligible to participate in the program
57	57	under Section 29.503. Notice under this subsection must:
58	58	(1) include information explaining that the
59	59	Individuals with Disabilities Education Act (20 U.S.C. Section 1400
60	60	et seq.) does not apply to a qualifying institution participating
61	61	in the program and that a student attending a qualifying
62	62	institution under this subchapter waives any rights under the Act;
63	63	and
64	64	(2) require that the student's parent sign a
65	65	confirmation of receipt of the notice and return the confirmation
66	66	to the district.
67	67	Sec. 29.503. ELIGIBLE STUDENT. (a) A student is eligible
68	68	to participate in the program if the student:
69	69	(1) has sought public school services under an
70	70	individualized education plan at the time the parent applies for
71	71	the program;
72	72	(2) is eligible to participate in a school district's
73	73	special education program under Section 29.003;
74	74	(3) has been diagnosed by a medical doctor with:
75	75	(A) a severe pervasive developmental disorder;
76	76	or
77	77	(B) a severe intellectual disability; and
78	78	(4) requires a limited duration of intense services
79	79	for the purpose of attaining school readiness skills to participate
80	80	in a classroom. School readiness skills shall include the
81	81	following skills:
82	82	(A) spontaneous imitation of their peers basic
83	83	functions;
84	84	(B) the ability to sit and attend quietly for at
85	85	least five minutes in a group setting;
86	86	(C) basic communication skills;
87	87	(D) basic social skills such as:
88	88	(i) sharing; and
89	89	(ii) responding to peers;
90	90	(E) compliance skills; and
91	91	(F) maladaptive behaviors at a rate, frequency,
92	92	and intensity that does not disrupt the class.
93	93	(b) For a student who attends a qualifying institution under
94	94	this subchapter, the school district in which the student resides,
95	95	the qualifying institution, and the student's parent shall annually
96	96	review:
97	97	(1) the continued applicability of the student's
98	98	original diagnosis;
99	99	(2) the student's continued eligibility for
100	100	participation in the program;
101	101	(3) the plan for transition of the student to a public
102	102	school; and
103	103	(4) the goals established and assessments
104	104	administered under Section 29.510.
105	105	(c) If the parent and the school district disagree as to
106	106	whether a student continues to meet the qualifications for an
107	107	eligible student under Subsection (a), the parent may seek a second
108	108	diagnosis as established under Subsection (d).
109	109	(d) If the parent and the school district disagree as to
110	110	whether a student meets the requirements for eligibility under
111	111	Subsection (a)(4), the parent may seek a second diagnosis by a
112	112	second medical doctor to determine whether the student requires a
113	113	limited duration of intense services for the purpose of attaining
114	114	school readiness skills. Not later than the 30th day following the
115	115	second diagnosis as provided by this subsection, the school
116	116	district and the parent shall meet to discuss the results of the
117	117	second diagnosis. The second diagnosis determines whether the
118	118	student meets the eligibility requirements under Subsection
119	119	(a)(4). The parent shall be responsible for the costs and effort in
120	120	obtaining a second diagnosis.
121	121	Sec. 29.504. TRANSFER OF STATE AID BETWEEN SCHOOL
122	122	DISTRICTS. Except as provided by Section 29.505, an eligible
123	123	student who, as provided by Section 29.502(a)(2), attends a public
124	124	school in a school district other than the district in which the
125	125	student resides is included in the average daily attendance of the
126	126	district in which the student resides for purposes of Chapters 41
127	127	and 42.
128	128	Sec. 29.505. STATE AID IN CERTAIN CIRCUMSTANCES. An
129	129	eligible student who, as provided by Section 29.502(a)(2), attends
130	130	a public school in a school district other than the district in
131	131	which the student resides is counted in the average daily
132	132	attendance of the school district in which the student attends
133	133	school if the total amount of state aid that the enrolling district
134	134	would receive by counting the student in the district's average
135	135	daily attendance is greater than the amount of state aid the
136	136	district would receive as a result of receiving a transfer of funds
137	137	from the district in which the student resides under Section
138	138	29.504.
139	139	Sec. 29.506. FINANCING OF SERVICES PROVIDED BY QUALIFYING
140	140	INSTITUTION. (a) Except as provided by Subsection (b), for a
141	141	student who attends a qualifying institution under this subchapter,
142	142	the qualifying institution is entitled to an annual amount of
143	143	funding that is equal to the amount the institution would receive
144	144	for a student if the institution were an open-enrollment charter
145	145	school, as calculated under Sections 12.106(a)(2) and (a-1),
146	146	multiplied by 1.1.
147	147	(b) The commissioner may withhold a portion of the funding
148	148	to which a qualifying institution is entitled under Subsection (a)
149	149	to pay the costs of administering the program.
150	150	(c) A student's program funding under this section may not
151	151	be financed by:
152	152	(1) money appropriated from the available school fund;
153	153	or
154	154	(2) federal funds.
155	155	(d) The agency shall directly distribute funding to the
156	156	qualifying institution on a monthly basis. The agency may not
157	157	distribute funding to the qualifying institution the student
158	158	attends until after services have been provided.
159	159	(e) The agency shall require that the qualifying
160	160	institution submit documentation of the student's attendance
161	161	before the agency distributes funding to the qualifying
162	162	institution. The qualifying institution shall submit the
163	163	documentation to the agency on a monthly basis, and the agency shall
164	164	distribute funding to the qualifying institution not later than the
165	165	30th day after the date of receiving the documentation.
166	166	(f) A qualifying institution may not share a student's
167	167	program funding with or refund or rebate a student's program
168	168	funding to the parent, the student, or a nonqualifying institution
169	169	in any manner.
170	170	Sec. 29.507. PARTICIPATION BY QUALIFYING INSTITUTIONS.
171	171	(a) To participate in the program, a qualifying institution:
172	172	(1) must:
173	173	(A) comply with all health and safety laws
174	174	applicable to nongovernmental schools;
175	175	(B) hold a valid occupancy permit if required by
176	176	the municipality in which the institution is located;
177	177	(C) employ a health care practitioner described
178	178	by Section 1355.015(b), Insurance Code; and
179	179	(D) comply with all state laws regarding criminal
180	180	background checks for employees and may not employ a person who is
181	181	not authorized under state law to work in a public school district
182	182	or open-enrollment charter school; qualifying institutions shall
183	183	follow and have access to the same procedures and information as
184	184	established by Section 22.083; and
185	185	(2) may not advocate or foster unlawful behavior or
186	186	teach hatred of any person or group on the basis of race, ethnicity,
187	187	national origin, or religion.
188	188	(b) Qualifying institutions shall be determined through a
189	189	request for qualification process established by the agency, in
190	190	collaboration with the Department of Assistive and Rehabilitative
191	191	Services, and subject to public comment as to the criteria and
192	192	standards to be used to establish qualification. The agency and the
193	193	Department of Assistive and Rehabilitative Services shall have
194	194	equal input in the request for qualification process and selection
195	195	of qualifying institutions.
196	196	(c) The request for qualification process established under
197	197	Subsection (b) may include provisions considering whether an
198	198	institution:
199	199	(1) is accredited by an accrediting association
200	200	recognized by the commissioner to accredit nongovernmental schools
201	201	in this state;
202	202	(2) has filed an application for accreditation by an
203	203	accrediting association described by Subdivision (1) that has not
204	204	been withdrawn, denied, or left pending for more than 18 months; or
205	205	(3) has previously provided contracted services for
206	206	individuals with pervasive developmental disorders or intellectual
207	207	disabilities for the Department of Assistive and Rehabilitative
208	208	Services.
209	209	(d) A nongovernmental community-based educational
210	210	establishment that provides for the educational needs of students
211	211	with severe pervasive developmental disorders or severe
212	212	intellectual disabilities may apply to the agency to participate in
213	213	the program as a qualifying institution. The agency, in
214	214	consultation with the Department of Assistive and Rehabilitative
215	215	Services, shall create and maintain a list of participating
216	216	qualifying institutions and ensure that the list is available to
217	217	the public.
218	218	(e) A sectarian institution may not be a qualifying
219	219	institution under this subchapter.
220	220	Sec. 29.508. APPLICATION FOR CONTRACTED SERVICES THROUGH
221	221	PROGRAM. (a) For an eligible student to participate in the
222	222	program and receive contracted services through a qualifying
223	223	institution, the parent of the student must apply to the agency on
224	224	behalf of the student. The application must specify the qualifying
225	225	institution the student plans to attend and demonstrate that the
226	226	student has been accepted for admission by that institution.
227	227	(b) On receiving the application from the parent of an
228	228	eligible student, the agency shall verify a student's eligibility.
229	229	If the agency verifies that the student is eligible for
230	230	participation in the program, the agency shall notify the student's
231	231	parent of the student's eligibility.
232	232	(c) A verification of student eligibility by the agency
233	233	under Subsection (b) is for review purposes only and does not
234	234	preempt the decision made at the local level on whether a student
235	235	qualifies for contracted services under the program.
236	236	(d) A parent may apply on behalf of the student to
237	237	participate in the program at any time.
238	238	Sec. 29.509. ADMISSIONS. (a) In order to receive funding
239	239	under Section 29.506, a qualifying institution may not deny
240	240	admission by discriminating on the basis of the student's race,
241	241	ethnicity, religion, creed, or national origin and must comply with
242	242	the requirements of:
243	243	(1) Title VI, Civil Rights Act of 1964 (42 U.S.C.
244	244	Section 2000d et seq.) with respect to discrimination on the basis
245	245	of race, color, or national origin; and
246	246	(2) Section 504, Rehabilitation Act of 1973 (29 U.S.C.
247	247	Section 794), with respect to nondiscrimination on the basis of
248	248	disability.
249	249	(b) A qualifying institution or a school district or campus
250	250	that has more qualified program applicants for attendance under
251	251	this subchapter than available positions must fill the available
252	252	program positions in the order the institution, district, or campus
253	253	receives the applications. In considering whether the school
254	254	district, public school, or qualifying institution has more
255	255	qualified applicants than availability for qualified applicants,
256	256	the entity may consider staff needs, financial resources, and
257	257	facility space.
258	258	(c) A qualifying institution or public school in another
259	259	district may refuse an eligible student if it determines that
260	260	admittance would require additional staff, financial resources, or
261	261	facility space.
262	262	(d) A qualifying institution may submit a written request
263	263	for student records from the school district or open-enrollment
264	264	charter school previously attended by an eligible student, if
265	265	applicable. Not later than the 10th working day after the date the
266	266	district or school receives the request, the district or school
267	267	shall deliver to the qualifying institution a copy of the school's
268	268	complete student records for that student, including attendance
269	269	records, disciplinary records, results of any assessment
270	270	instruments administered to the student, the student's
271	271	individualized educational program, and any other comprehensive
272	272	assessments from each school the student previously attended. A
273	273	district or school that is required to release student records
274	274	under this subsection shall comply with any applicable provision of
275	275	the Family Educational Rights and Privacy Act of 1974 (20 U.S.C.
276	276	Section 1232g).
277	277	Sec. 29.510. ACADEMIC ACCOUNTABILITY. (a) A qualifying
278	278	institution, in collaboration with the school district in which the
279	279	student resides, shall establish academic and functional goals for
280	280	each eligible student receiving contracted services from the
281	281	institution. The goals must be developed in a manner similar to an
282	282	individualized educational program developed under Section 29.005.
283	283	Each school year, a qualifying institution shall review and revise
284	284	the goals developed for the student under this subsection. At
285	285	regular intervals not less than three times each academic year, the
286	286	qualifying institution shall provide a report to the student's
287	287	parent describing the student's progress toward achieving the goals
288	288	developed for the student under this subsection.
289	289	(b) Each spring semester, a qualifying institution that
290	290	provides contracted services to a student under this subchapter
291	291	shall assess the student's progress. Under an agreement with the
292	292	agency, the qualifying institution shall administer the
293	293	appropriate assessment instrument adopted under Subchapter B,
294	294	Chapter 39.
295	295	(c) The qualifying institution shall provide:
296	296	(1) the student's results on assessment instruments
297	297	administered under Subsection (b) to the student's parent; and
298	298	(2) the aggregated results of assessment instruments
299	299	administered under Subsection (b) to the public, subject to the
300	300	applicable provisions of the Family Educational Rights and Privacy
301	301	Act of 1974 (20 U.S.C. Section 1232g).
302	302	Sec. 29.511. FINANCIAL SOLVENCY. The commissioner may
303	303	adopt rules requiring a qualifying institution that accepts funding
304	304	under this subchapter to demonstrate financial solvency.
305	305	Sec. 29.512. QUALIFYING INSTITUTION AUTONOMY. (a) A
306	306	qualifying institution that accepts funding under this subchapter
307	307	is not an agent or arm of the state or federal government.
308	308	(b) Except as provided by this subchapter, the
309	309	commissioner, the agency, the State Board of Education, or any
310	310	other state agency may not regulate the educational program of a
311	311	qualifying institution that accepts funding under this subchapter.
312	312	(c) A qualifying institution that accepts funding under
313	313	this subchapter is not required to implement an individualized
314	314	educational program developed for the student under Section 29.005.
315	315	The eligible student's parent and the qualifying institution shall
316	316	determine the services and educational program to be provided to
317	317	the eligible student.
318	318	Sec. 29.513. RIGHTS AND RESPONSIBILITIES OF PARENTS AND
319	319	STUDENTS. (a) It is the responsibility of the parent of an
320	320	eligible student to:
321	321	(1) locate and select a qualifying institution;
322	322	(2) apply for admission to the qualifying institution;
323	323	and
324	324	(3) apply in the manner provided under Section 29.508
325	325	for participation in the program.
326	326	(b) A student participating in the program must attend the
327	327	qualifying institution each school day unless the student is
328	328	excused by the school for illness or other good cause, as determined
329	329	by the institution.
330	330	(c) Participation in the program does not create a property
331	331	right for either the parents or the participating qualifying
332	332	institution.
333	333	Sec. 29.514. TRANSFER. (a) An eligible student
334	334	participating in the program may transfer to a public school or
335	335	another qualifying institution in the manner authorized by
336	336	commissioner rule. If a student transfers to another school or
337	337	qualifying institution under this section after the beginning of
338	338	the school year, the commissioner shall prorate the amount of the
339	339	student's program funding between the qualifying institutions or
340	340	the qualifying institution and the school district, as applicable,
341	341	according to the length of the student's attendance at each entity.
342	342	(b) The commissioner may adopt rules regarding the
343	343	frequency with which a parent may transfer an eligible student from
344	344	a qualifying institution to another qualifying institution.
345	345	(c) The commissioner may not adopt rules restricting the
346	346	frequency with which a parent may transfer an eligible student from
347	347	a qualifying institution to a public school.
348	348	Sec. 29.515. RULES. The commissioner shall adopt rules as
349	349	necessary to implement, administer, and enforce the program,
350	350	including rules regarding:
351	351	(1) the calculation and distribution of payments for
352	352	qualifying institutions;
353	353	(2) application and approval procedures for
354	354	qualifying institutions and student participation in the program,
355	355	including timelines for the application and approval procedures;
356	356	and
357	357	(3) student transfers under Section 29.514.
358	358	Sec. 29.516. PROGRAM COMPLIANCE. (a) The agency may
359	359	withhold funding from any district or qualifying institution that
360	360	violates this subchapter or a rule adopted under this subchapter.
361	361	Agency decisions are final and may not be appealed.
362	362	(b) The commissioner may revoke a qualifying institution's
363	363	permission to participate in the program if the commissioner
364	364	determines that the institution:
365	365	(1) has not met the requirements provided by this
366	366	subchapter;
367	367	(2) has wilfully misrepresented information required
368	368	by this subchapter; or
369	369	(3) has failed to refund to the state in a timely
370	370	manner any overpayment of program funding made to the institution.
371	371	(c) If the commissioner revokes a qualifying institution's
372	372	permission to participate in the program under Subsection (b), the
373	373	agency shall immediately notify the public through the agency's
374	374	Internet website of the revocation.
375	375	Sec. 29.517. LIABILITY. The agency is not civilly liable
376	376	for any action arising as the result of a student's participation in
377	377	the program.
378	378	Sec. 29.518. EVALUATION OF PROGRAM. (a) The commissioner
379	379	shall designate, subject to available financial resources, an
380	380	impartial organization with experience in evaluating programs
381	381	similar to the program established under this subchapter to conduct
382	382	an annual evaluation of the program.
383	383	(b) An evaluation under this section must compare
384	384	differences between qualifying institutions and public schools and
385	385	may include consideration of:
386	386	(1) student satisfaction;
387	387	(2) parent satisfaction;
388	388	(3) behavioral problems of program students attending
389	389	qualifying institutions as compared with students attending public
390	390	schools;
391	391	(4) class size;
392	392	(5) the fiscal impact to the state and school
393	393	districts;
394	394	(6) academic performance by comparable students as
395	395	measured by an assessment under Section 29.510(b);
396	396	(7) factors resulting in more than 25 percent of
397	397	eligible students in a school district attending a qualifying
398	398	institution or public school in another district under this
399	399	subchapter; and
400	400	(8) the practices of a qualifying institution that
401	401	contribute to a change in student behavior or academic performance.
402	402	(c) The evaluation must apply appropriate analytical and
403	403	behavioral science methodologies to ensure public confidence in the
404	404	evaluation.
405	405	(d) Not later than December 1, 2014, the commissioner shall
406	406	submit to each member of the legislature a copy of an evaluation
407	407	conducted under this section.
408	408	(e) Subject to any other federal or state law, including an
409	409	applicable provision of the Family Educational Rights and Privacy
410	410	Act of 1974 (20 U.S.C. Section 1232g), school districts,
411	411	open-enrollment charter schools, and qualifying institutions shall
412	412	provide to the organization conducting an evaluation student
413	413	assessment instrument results and any other information necessary
414	414	to complete the evaluation.
415	415	(f) The agency may accept grants to assist in funding the
416	416	evaluation.
417	417	Sec. 29.519. APPLICATION OF SUNSET ACT. (a) The
418	418	contracted services program is subject to Chapter 325, Government
419	419	Code (Texas Sunset Act), as if the program were a state agency.
420	420	Unless continued in existence as provided by that chapter, the
421	421	program is abolished and this subchapter expires September 1, 2017.
422	422	(b) To the extent Chapter 325, Government Code (Texas Sunset
423	423	Act), imposes a duty on a state agency under review, the agency
424	424	shall perform that duty as it relates to the program, subject to
425	425	available financial resources.
426	426	SECTION 2. (a) The Texas Education Agency shall make the
427	427	contracted services program under Subchapter M, Chapter 29,
428	428	Education Code, as added by this Act, available for participation
429	429	beginning with the 2012-2013 academic school year.
430	430	(b) As soon as practicable, the commissioner of education
431	431	shall adopt and implement rules necessary for the administration of
432	432	the contracted services program.
433	433	SECTION 3. This Act takes effect September 1, 2011.
434	434	* * * * *