By: Davis S.B. No. 1871
(In the Senate - Filed March 11, 2011; March 24, 2011, read
first time and referred to Committee on Education; May 12, 2011,
reported adversely, with favorable Committee Substitute by the
following vote: Yeas 5, Nays 3; May 12, 2011, sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 1871 By: Davis
A BILL TO BE ENTITLED
AN ACT
relating to a contracted services program for certain students with
a severe pervasive developmental disorder or a severe intellectual
disability.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 29, Education Code, is amended by adding
Subchapter M to read as follows:
SUBCHAPTER M. CONTRACTED SERVICES PROGRAM
Sec. 29.501. 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) autism;
(B) Asperger's syndrome;
(C) Rett's syndrome;
(D) childhood disintegrative disorder; and
(E) a pervasive developmental disorder, not
otherwise specified.
(3) "Program" means the contracted services program
for eligible students created by this subchapter.
(4) "Qualifying institution":
(A) means a nongovernmental community-based
educational and therapeutic establishment that:
(i) provides for the educational and
therapeutic needs of students with a severe pervasive developmental
disorder or severe intellectual disability;
(ii) qualifies for participation in the
program, as provided by Section 29.507; and
(iii) is eligible to receive insurance
payments or Medicaid payments made on behalf of an eligible
student; and
(B) does not include a school that solely
provides education in a home setting or that limits enrollment to
relatives of the school's staff.
Sec. 29.502. CONTRACTED SERVICES PROGRAM. (a) An eligible
student under Section 29.503 may:
(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; or
(3) receive contracted services through a qualifying
institution.
(b) Each school year, a school district or open-enrollment
charter school shall provide written notice of the program to the
parent of a student who is eligible to participate in the program
under Section 29.503. Notice under this subsection must:
(1) include information explaining that the
Individuals with Disabilities Education Act (20 U.S.C. Section 1400
et seq.) does not apply to a qualifying institution participating
in the program and that a student attending a qualifying
institution under this subchapter waives any rights under the Act;
and
(2) require that the student's parent sign a
confirmation of receipt of the notice and return the confirmation
to the district.
Sec. 29.503. ELIGIBLE STUDENT. (a) A student is eligible
to participate in the program if the student:
(1) has sought public school services under an
individualized education plan at the time the parent applies for
the program;
(2) is eligible to participate in a school district's
special education program under Section 29.003;
(3) has been diagnosed by a medical doctor with:
(A) a severe pervasive developmental disorder;
or
(B) a severe intellectual disability; and
(4) requires a limited duration of intense services
for the purpose of attaining school readiness skills to participate
in a classroom. School readiness skills shall include the
following skills:
(A) spontaneous imitation of their peers basic
functions;
(B) the ability to sit and attend quietly for at
least five minutes in a group setting;
(C) basic communication skills;
(D) basic social skills such as:
(i) sharing; and
(ii) responding to peers;
(E) compliance skills; and
(F) maladaptive behaviors at a rate, frequency,
and intensity that does not disrupt the class.
(b) 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 annually
review:
(1) the continued applicability of the student's
original diagnosis;
(2) the student's continued eligibility for
participation in the program;
(3) the plan for transition of the student to a public
school; and
(4) the goals established and assessments
administered under Section 29.510.
(c) If the parent and the school district disagree as to
whether a student continues to meet the qualifications for an
eligible student under Subsection (a), the parent may seek a second
diagnosis as established under Subsection (d).
(d) If the parent and the school district disagree as to
whether a student meets the requirements for eligibility under
Subsection (a)(4), the parent may seek a second diagnosis by a
second medical doctor to determine whether the student requires a
limited duration of intense services for the purpose of attaining
school readiness skills. Not later than the 30th day following the
second diagnosis as provided by this subsection, the school
district and the parent shall meet to discuss the results of the
second diagnosis. The second diagnosis determines whether the
student meets the eligibility requirements under Subsection
(a)(4). The parent shall be responsible for the costs and effort in
obtaining a second diagnosis.
Sec. 29.504. TRANSFER OF STATE AID BETWEEN SCHOOL
DISTRICTS. Except as provided by Section 29.505, an eligible
student who, as provided by Section 29.502(a)(2), attends a public
school in a school district other than the district in which the
student resides is included in the average daily attendance of the
district in which the student resides for purposes of Chapters 41
and 42.
Sec. 29.505. STATE AID IN CERTAIN CIRCUMSTANCES. An
eligible student who, as provided by Section 29.502(a)(2), attends
a public school in a school district other than the district in
which the student resides is counted in the average daily
attendance of the school district in which the student attends
school if the total amount of state aid that the enrolling district
would receive by counting the student in the district's average
daily attendance is greater than the amount of state aid the
district would receive as a result of receiving a transfer of funds
from the district in which the student resides under Section
29.504.
Sec. 29.506. FINANCING OF SERVICES PROVIDED BY QUALIFYING
INSTITUTION. (a) Except as provided by Subsection (b), for a
student who attends a qualifying institution under this subchapter,
the 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),
multiplied by 1.1.
(b) The commissioner may withhold a portion of the funding
to which a qualifying institution is entitled under Subsection (a)
to pay the costs of administering the program.
(c) 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.
(d) The agency shall directly distribute funding to the
qualifying institution on a monthly basis. The agency may not
distribute funding to the qualifying institution the student
attends until after services have been provided.
(e) The agency shall require that the qualifying
institution submit documentation of the student's attendance
before the agency distributes funding to the qualifying
institution. The qualifying institution shall submit the
documentation to the agency on a monthly basis, and the agency shall
distribute funding to the qualifying institution not later than the
30th day after the date of receiving the documentation.
(f) A qualifying institution may not share a student's
program funding with or refund or rebate a student's program
funding to the parent, the student, or a nonqualifying institution
in any manner.
Sec. 29.507. PARTICIPATION BY QUALIFYING INSTITUTIONS.
(a) To participate in the program, a qualifying institution:
(1) must:
(A) comply with all health and safety laws
applicable to nongovernmental schools;
(B) hold a valid occupancy permit if required by
the municipality in which the institution is located;
(C) employ a health care practitioner described
by Section 1355.015(b), Insurance Code; and
(D) comply with all state laws regarding criminal
background checks for employees and may not employ a person who is
not authorized under state law to work in a public school district
or open-enrollment charter school; qualifying institutions shall
follow and have access to the same procedures and information as
established by Section 22.083; and
(2) may not advocate or foster unlawful behavior or
teach hatred of any person or group on the basis of race, ethnicity,
national origin, or religion.
(b) Qualifying institutions shall be determined through a
request for qualification process established by the agency, in
collaboration with the Department of Assistive and Rehabilitative
Services, and subject to public comment as to the criteria and
standards to be used to establish qualification. The agency and the
Department of Assistive and Rehabilitative Services shall have
equal input in the request for qualification process and selection
of qualifying institutions.
(c) The request for qualification process established under
Subsection (b) may include provisions considering whether an
institution:
(1) is accredited by an accrediting association
recognized by the commissioner to accredit nongovernmental schools
in this state;
(2) has filed an application for accreditation by an
accrediting association described by Subdivision (1) that has not
been withdrawn, denied, or left pending for more than 18 months; or
(3) has previously provided contracted services for
individuals with pervasive developmental disorders or intellectual
disabilities for the Department of Assistive and Rehabilitative
Services.
(d) A nongovernmental community-based educational
establishment that provides for the educational needs of students
with severe pervasive developmental disorders or severe
intellectual disabilities 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 participating
qualifying institutions and ensure that the list is available to
the public.
(e) A sectarian institution may not be a qualifying
institution under this subchapter.
Sec. 29.508. APPLICATION FOR CONTRACTED SERVICES THROUGH
PROGRAM. (a) For an eligible student to participate in the
program and receive contracted services through a qualifying
institution, 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.
(b) On receiving the application from the parent of an
eligible student, the agency shall verify a student's eligibility.
If the agency verifies that the student is eligible for
participation in the program, the agency shall notify the student's
parent of the student's eligibility.
(c) A verification of student eligibility by the agency
under Subsection (b) is for review purposes only and does not
preempt the decision made at the local level on whether a student
qualifies for contracted services under the program.
(d) A parent may apply on behalf of the student to
participate in the program at any time.
Sec. 29.509. ADMISSIONS. (a) In order to receive funding
under Section 29.506, a qualifying institution 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) Title VI, Civil Rights Act of 1964 (42 U.S.C.
Section 2000d et seq.) with respect to discrimination 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) A qualifying institution or a school district or campus
that has more qualified program applicants for attendance under
this subchapter than available positions must fill the available
program positions in the order the institution, district, or campus
receives the applications. In considering whether the school
district, public school, or qualifying institution has more
qualified applicants than availability for qualified applicants,
the entity may consider staff needs, financial resources, and
facility space.
(c) A qualifying institution or public school in another
district may refuse an eligible student if it determines that
admittance would require additional staff, financial resources, or
facility space.
(d) A qualifying institution may submit a written request
for student records from the school district or open-enrollment
charter school previously attended by an eligible student, if
applicable. Not later than the 10th working day after the date the
district or school receives the request, the district or school
shall deliver to the qualifying institution a copy of the school's
complete student records for that student, including attendance
records, disciplinary records, 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
district or 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. 29.510. ACADEMIC ACCOUNTABILITY. (a) A qualifying
institution, in collaboration with the school district in which the
student resides, shall establish academic and functional goals for
each eligible student receiving contracted services from the
institution. The goals must be developed in a manner similar to an
individualized educational program developed under Section 29.005.
Each school year, a qualifying institution shall review and revise
the goals developed for the student under this subsection. At
regular intervals not less than three times each academic year, the
qualifying institution shall provide a report to the student's
parent describing the student's progress toward achieving the goals
developed for the student under this subsection.
(b) Each spring semester, a qualifying institution that
provides contracted services to a student under this subchapter
shall assess the student's progress. Under an agreement with the
agency, the qualifying institution shall administer the
appropriate assessment instrument adopted under Subchapter B,
Chapter 39.
(c) The qualifying 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 assessment instruments
administered under Subsection (b) to the public, subject to the
applicable provisions of the Family Educational Rights and Privacy
Act of 1974 (20 U.S.C. Section 1232g).
Sec. 29.511. FINANCIAL SOLVENCY. The commissioner may
adopt rules requiring a qualifying institution that accepts funding
under this subchapter to demonstrate financial solvency.
Sec. 29.512. 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
educational program developed for the student under Section 29.005.
The eligible student's parent and the qualifying institution shall
determine the services and educational program to be provided to
the eligible student.
Sec. 29.513. RIGHTS AND RESPONSIBILITIES OF PARENTS AND
STUDENTS. (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 29.508
for participation in the program.
(b) A student participating in the program must attend the
qualifying institution each school day unless the student is
excused by the school for illness or other good cause, as determined
by the institution.
(c) Participation in the program does not create a property
right for either the parents or the participating qualifying
institution.
Sec. 29.514. 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 or
qualifying institution 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 entity.
(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.
(c) The commissioner may not adopt rules restricting the
frequency with which a parent may transfer an eligible student from
a qualifying institution to a public school.
Sec. 29.515. RULES. 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 institutions and student participation in the program,
including timelines for the application and approval procedures;
and
(3) student transfers under Section 29.514.
Sec. 29.516. PROGRAM COMPLIANCE. (a) The agency may
withhold funding 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.
(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 wilfully 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
Internet website of the revocation.
Sec. 29.517. LIABILITY. The agency is not civilly liable
for any action arising as the result of a student's participation in
the program.
Sec. 29.518. EVALUATION OF PROGRAM. (a) The commissioner
shall 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.
(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 under Section 29.510(b);
(7) factors resulting in more than 25 percent of
eligible students in a school district attending a qualifying
institution or public school in another district under this
subchapter; and
(8) the practices of a qualifying institution that
contribute to a 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 an evaluation
conducted under this section.
(e) Subject to any other federal or state law, including an
applicable provision of the Family Educational Rights and Privacy
Act of 1974 (20 U.S.C. Section 1232g), school districts,
open-enrollment charter schools, and qualifying institutions shall
provide to the organization conducting an evaluation student
assessment instrument results and any other information necessary
to complete the evaluation.
(f) The agency may accept grants to assist in funding the
evaluation.
Sec. 29.519. 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 (Texas Sunset
Act), 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 M, 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 contracted services program.
SECTION 3. This Act takes effect September 1, 2011.
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