85S10296 KJE-F
By: Simmons H.B. No. 52
A BILL TO BE ENTITLED
AN ACT
relating to the establishment of an individualized education plan
account program for certain children with disabilities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 29, Education Code, is amended by adding
Subchapter J to read as follows:
SUBCHAPTER J. INDIVIDUALIZED EDUCATION PLAN ACCOUNT PROGRAM
Sec. 29.351. DEFINITIONS. In this subchapter:
(1) "Account" means an individualized education plan
account established under the program.
(2) "Child with a disability" means a child who is:
(A) eligible to participate in a school
district's special education program under Section 29.003; or
(B) protected by Section 504, Rehabilitation Act
of 1973 (29 U.S.C. Section 794).
(3) "Curriculum" means a complete course of study for
a particular content area or grade level.
(4) "Financial institution" means a bank, credit
union, savings bank, or savings and loan association organized
under the laws of this state, the laws of another state, or federal
law that has its main office or a branch office in this state. The
term does not include any institution the deposits of which are not
insured by the Federal Deposit Insurance Corporation or the
National Credit Union Administration.
(5) "Parent" means a resident of this state who is a
natural or adoptive parent, managing or possessory conservator,
legal guardian, custodian, or other person with legal authority to
act on behalf of a child.
(6) "Postsecondary educational institution" means:
(A) an institution of higher education or a
private or independent institution of higher education as defined
by Section 61.003; or
(B) a career school or college as defined by
Section 132.001.
(7) "Program" means the individualized education plan
account program established under this subchapter.
(8) "Program participant" means a child and a parent
of a child enrolled in the program.
Sec. 29.352. PURPOSES. The purposes of the individualized
education plan account program are to:
(1) improve public schools and overall academic
performance;
(2) promote efficiency;
(3) promote and preserve the liberties and rights of
the people; and
(4) increase parental options.
Sec. 29.353. ESTABLISHMENT OF PROGRAM. (a) The
comptroller shall establish and administer an individualized
education plan account program to provide funding for certain
education-related expenses of eligible children.
(b) The comptroller, with cooperation from the agency,
shall ensure that information about the program is readily
available to the public through various sources, including the
comptroller's Internet website.
Sec. 29.354. ELIGIBLE CHILD. (a) A child is eligible to
participate in the program if the child is:
(1) eligible to attend a public school under Section
25.001; and
(2) a child with a disability.
(b) A child who establishes eligibility under this section
may participate in the program until the earliest of the following
dates:
(1) the date on which the child no longer meets the
eligibility requirements under Subsection (a);
(2) the date that is three months after the date on
which the child:
(A) graduates from high school; or
(B) receives a high school equivalency
certificate under Section 7.111;
(3) the date on which the child enrolls in a public
school, including an open-enrollment charter school; or
(4) the date on which the child is declared ineligible
for the program by the comptroller under this subchapter.
(c) Notwithstanding Subsection (b), the comptroller shall
establish guidelines for, in the least disruptive manner possible:
(1) a child participating in the program to cease
participation and enroll in a public school, including an
open-enrollment charter school; and
(2) a child who previously participated in the program
and subsequently enrolled in a public school, including an
open-enrollment charter school, to resume participation in the
program.
Sec. 29.355. ENROLLMENT IN PROGRAM. (a) A parent of an
eligible child may enroll the child in the program for the following
school year.
(b) The comptroller, in consultation with the agency, shall
by rule create an enrollment form for the program and make the
enrollment form readily available to interested parents through
various sources, including the comptroller's Internet website. The
enrollment form must include spaces to provide the following
information:
(1) the name of the school district the child would
otherwise have attended;
(2) the name of the last public school in which the
child was enrolled, if any; and
(3) any other information necessary to determine
whether the child is eligible to participate in the program or the
amount of the payment the child, if eligible, would be entitled to
receive under the program.
(c) The comptroller shall provide to each parent who submits
an enrollment form a publication that describes the operation of
the program, including:
(1) expenses allowed under the program under Section
29.357;
(2) expense reporting requirements; and
(3) a description of the responsibilities of program
participants and the duties of the comptroller under this
subchapter.
(d) For each submitted enrollment form, the agency shall
determine whether the child is eligible to participate in the
program and report that determination to the comptroller.
Sec. 29.356. PARTICIPATION IN PROGRAM. (a) To receive
funding under the program, a parent of an eligible child must agree
to:
(1) spend funds received through the program only for
expenses allowed under Section 29.357;
(2) notify the comptroller if the child enrolls in a
public school, including an open-enrollment charter school, not
later than the 30th day after the date of enrollment; and
(3) inform the comptroller if the child graduates from
high school or receives a high school equivalency certificate under
Section 7.111.
(b) The parent of a child participating in the program is
the trustee of the child's account.
(c) The comptroller shall provide annually to each program
participant the publication provided under Section 29.355(c).
Sec. 29.357. APPROVED EDUCATION-RELATED EXPENSES. (a)
Funds received under the program may be used only for the following
expenses incurred by a program participant:
(1) tuition and fees:
(A) at a private school accredited by an
organization that is recognized by the Texas Private School
Accreditation Commission;
(B) at a postsecondary educational institution
for a course described by Section 28.009 for which the child may
receive high school credit based on an agreement between the
institution and the school in which the child is enrolled; or
(C) for an online educational course or program
offered through the state virtual school network under Chapter 30A
or otherwise approved by the agency for public school students;
(2) the purchase of textbooks or other instructional
materials;
(3) payments for the purchase of a curriculum;
(4) fees for classes or other educational services
provided by a public school, if the classes or services do not
qualify the child to be included in the school's average daily
attendance;
(5) fees for services provided by a private tutor or
teaching service;
(6) fees for educational therapies or services
provided by a practitioner or provider, other than fees covered by
any federal, state, or local government benefit program, including
Medicaid or the children's health insurance program, or any
applicable private insurance;
(7) costs of computer hardware and software and other
technological devices that clearly may be used for educational
purposes, not to exceed in any year 10 percent of the total amount
paid to the program participant's account that year;
(8) fees for a nationally norm-referenced achievement
test or examination, an assessment instrument adopted by the agency
under Section 39.023, an advanced placement test or similar
examination, or any examination related to college or university
admission; and
(9) contributions to a qualified tuition program
established for the child that meets the requirements of Section
529 or 530, Internal Revenue Code of 1986, not to exceed in any year
25 percent of the total amount paid to the program participant's
account that year.
(b) Expenses allowed under Subsection (a) do not include
expenses for:
(1) consumable supplies, including paper, pens,
pencils, folders, and notebooks;
(2) food; or
(3) before-school or after-school child care and child
care during school holidays and vacations.
(c) An education service provider or vendor of educational
products must provide a program participant with a receipt for each
expense allowed under Subsection (a) charged by the provider or
vendor to the participant.
(d) The content or religious nature of a product or service
may not be considered in determining whether a payment for the
product or service is an expense allowed under Subsection (a).
(e) A finding that a program participant used funds
distributed under the program to pay for an expense not allowed
under Subsection (a) does not affect the validity of any payment
made by the participant for an expense that is allowed under that
subsection.
Sec. 29.358. AMOUNT OF PAYMENT; FINANCING. (a) A parent of
an eligible child shall receive each year that the child
participates in the program a payment from the Foundation School
Program to the child's account in an amount that is equal to 90
percent of the state and local maintenance and operations revenue
to which the school district the child would otherwise attend would
be entitled for the child if the child enrolled in the district,
excluding any revenue under Subchapter C, Chapter 42, other than
revenue to which the district would be entitled as a result of the
special allotments under Sections 42.151, 42.152, and 42.160. The
comptroller shall base the calculation on a 100 percent attendance
rate.
(b) For purposes of Subsection (a), in calculating the
amount of any special allotments to which the school district would
be entitled for the child under Section 42.151 or 42.152, the
comptroller shall use the following weights or amounts that result
in the greatest amount of revenue:
(1) the weights for which the child qualifies under
the applicable section, including, if applicable, a weight for the
child's instructional arrangement if the child's instructional
arrangement can be determined; or
(2) the average amount per student received by the
district for the preceding school year for each special allotment
for which the child qualifies, regardless of the applicable
instructional arrangement, if any.
(c) In administering the program, the comptroller may use
funds from any public or private source that are available for that
purpose.
(d) Any funds remaining in a child's account at the end of a
fiscal year are carried forward to the next fiscal year unless
another provision of this subchapter mandates the closure of the
account.
(e) The parent of a child participating in the program may
make payments for the expenses of educational programs, services,
and products not covered by funds in the child's account.
(f) A payment under the program may not be financed using
federal funds or money appropriated from the available school fund.
Sec. 29.359. ADMINISTRATION OF ACCOUNTS. (a) The
comptroller may contract with one or more financial institutions to
establish and manage an account for each child participating in the
program. A program participant must be able to access the
participant's account by using an online or electronic transfer
payment service.
(b) The comptroller shall make quarterly payments to each
program participant's account in equal amounts on or before the
15th days of August, November, February, and May.
(c) The comptroller may deduct an amount from each quarterly
payment to a program participant's account to cover the
comptroller's cost of administering the program. The amount
deducted may not exceed three percent of the payment.
(d) Within the first month following the end of each fiscal
year, the comptroller shall reconcile payments made to and from all
accounts under the program.
(e) The comptroller shall coordinate as necessary to
calculate annually the savings to the state from the implementation
of the program.
(f) On the date on which a child ceases to participate in the
program for any reason, the child's account is closed and any
remaining funds are returned to the state for deposit in the
foundation school fund. This subsection does not affect a child's
eligibility to resume participation in the program.
(g) The comptroller may contract with a private entity to
administer all or any part of the program.
Sec. 29.360. RANDOM AUDITING. (a) The comptroller shall
randomly audit or contract with a private entity to randomly audit:
(1) accounts as necessary to ensure compliance with
applicable law and the requirements of the program; and
(2) education service providers and vendors of
educational products that accept funds distributed under the
program as necessary to ensure compliance with this subchapter.
(b) In auditing an account, provider, or vendor, the
comptroller or private entity may require that a program
participant, provider, or vendor provide further information and
documentation regarding any payment from the participant's
account.
(c) The private entity shall report to the comptroller any
violation of this subchapter or other relevant law found by the
entity during an audit conducted under this section.
Sec. 29.361. SUSPENSION OF ACCOUNT. (a) The comptroller
shall suspend the account of a program participant who fails to
comply with applicable law or a requirement of the program,
including a requirement under Section 29.356(a), or who
substantially misuses funds received under the program.
(b) On suspension of an account under Subsection (a), the
comptroller shall notify the participant in writing that the
account has been suspended and that no further payments may be made
from the account. The notification must specify the grounds for the
suspension and state that the participant has 10 business days to
respond and take any corrective action required by the comptroller.
(c) On the expiration of the 10-day period under Subsection
(b), the comptroller shall:
(1) order permanent closure of the suspended account
and declare the participant ineligible for the program;
(2) order temporary reinstatement of the account,
conditioned on the performance of a specified action by the
participant; or
(3) order full reinstatement of the account.
(d) If a program participant's account is suspended or
closed under this section, the comptroller may recover funds that
were used for expenses not allowed under Section 29.357(a) from the
participant or the entity that received the funds.
Sec. 29.362. TUITION AND FEES; REFUND PROHIBITED. (a) An
education service provider may not charge a child participating in
the program an amount greater than the standard amount charged for
that service by the provider.
(b) An education service provider or a vendor of educational
products receiving funds distributed under the program may not in
any manner rebate, refund, or credit to or share with a program
participant, or any person on behalf of a participant, any program
funds paid or owed by the participant to the provider or vendor.
Sec. 29.363. REFERRAL TO ATTORNEY GENERAL. (a) If the
comptroller obtains evidence of fraudulent use of an account, the
comptroller may refer the case to the attorney general for
investigation.
(b) With the consent of the appropriate local county or
district attorney, the attorney general has concurrent
jurisdiction with the consenting local prosecutor to prosecute an
offense referred to the attorney general under Subsection (a).
Sec. 29.364. PROVIDER ACCOUNTABILITY. (a) A private
school must be accredited by an organization that is recognized by
the Texas Private School Accreditation Commission to receive funds
distributed under the program.
(b) A private tutor or teaching service and a practitioner
or provider who provides educational therapies or services must be
licensed or accredited by a regional or national accrediting
organization to receive funds distributed under the program.
Sec. 29.365. PROGRAM PARTICIPANT, PROVIDER, AND VENDOR
AUTONOMY. (a) An education service provider or vendor of
educational products that receives funds distributed under the
program is not an agent of the state or federal government.
(b) Except as provided by this subchapter, the comptroller,
the agency, the State Board of Education, any other state agency, or
any school district may not:
(1) regulate the educational program of an education
service provider or vendor of educational products that receives
funds distributed under the program; or
(2) exercise control or supervision over a program
participant or an education service provider or vendor of
educational products that receives funds distributed under the
program.
(c) The program does not expand the regulatory authority of
the state or any school district to impose any additional
regulation on an education service provider or vendor of
educational products except those reasonably necessary to enforce
the program as provided by this subchapter.
(d) A private school may not be required to modify the
school's creed, practices, admissions policies, curriculum,
performance standards, or assessments to receive funds distributed
under the program.
(e) A private school voluntarily selected by a parent for
the parent's child to attend or a parent who homeschools the
parent's child, with or without governmental assistance, may not be
required to comply with any state law or rule governing the
applicable educational program that was not in effect on January 1,
2017.
(f) In any proceeding challenging a rule adopted by a state
agency or officer under this subchapter, the agency or officer has
the burden of proof to establish that the rule:
(1) is necessary to implement or enforce the program
as provided by this subchapter; and
(2) does not impose an undue burden on a program
participant or an education service provider or vendor of
educational products that receives or seeks to receive funds
distributed under the program.
Sec. 29.366. STUDENT RECORDS. On request by the parent of a
child participating in the program, the school district or
open-enrollment charter school that the child would otherwise
attend shall provide a copy of the child's school records possessed
by the district or school, if any, to the child's parent or, if
applicable, the private school the child attends.
Sec. 29.367. REPORTING NUMBER OF PARTICIPANTS. (a) Not
later than October 1 of each year, the commissioner shall notify the
comptroller and the Legislative Budget Board of the number of
eligible children likely to participate in the program,
disaggregated by the school district or open-enrollment charter
school the eligible children would otherwise attend.
(b) Not later than March 1 of each year, the commissioner
shall provide final information to the comptroller and the
Legislative Budget Board regarding the number of children
participating in the program, disaggregated in the same manner as
the initial information under Subsection (a).
Sec. 29.368. ANNUAL SURVEY. The comptroller may conduct an
annual parental satisfaction survey that asks each parent of a
child participating in the program to express:
(1) the parent's overall level of satisfaction with
the program; and
(2) the parent's opinion on specified topics and
issues relevant to the effectiveness of the program.
Sec. 29.369. DISTRICTS WITH HIGH PARTICIPATION RATE.
Notwithstanding any other law, a school district in which at least
one percent of resident children eligible to attend public school
under Section 25.001 are participating in the program shall receive
the following benefits:
(1) the district may elect to administer assessment
instruments only as necessary to comply with the Every Student
Succeeds Act (20 U.S.C. Section 6301 et seq.) and may be evaluated
for accountability purposes related to assessment only based on the
results of those assessment instruments;
(2) the district may create a local innovation plan
and be designated as a district of innovation under Chapter 12A
without complying with the requirements under Section 12A.001 or
12A.002;
(3) teachers employed by the district are entitled to
receive a stipend for attending a mathematics achievement academy
under Section 21.4553 or a reading-to-learn academy under Section
21.4554 in an amount equal to twice the amount established by the
commissioner for the applicable stipend;
(4) the agency shall award the district an additional
five percentage points toward the district's overall performance
rating under Section 39.054;
(5) the district is entitled to reimbursement from the
state for the cost of locating, identifying, and evaluating
children with disabilities who are enrolled in private schools in
the district in compliance with 20 U.S.C. Section 1412; and
(6) in addition to any funding the district receives
under Chapter 42, for each resident child participating in the
program, the district is entitled to receive for the first year in
which the child participates in the program an amount equal to the
difference between:
(A) the state and local maintenance and
operations revenue to which the district would be entitled for the
child if the child enrolled in the district, excluding any revenue
under Subchapter C, Chapter 42, other than revenue to which the
district would be entitled as a result of the special allotments
under Sections 42.151, 42.152, and 42.160, calculated in accordance
with Sections 29.358(a) and (b); and
(B) the amount the child's parent receives under
Section 29.358(a) for the year.
Sec. 29.370. GIFTS, GRANTS, AND DONATIONS. The comptroller
may solicit and accept gifts, grants, and donations from any public
or private source for any expenses related to the initial
implementation or administration of the program.
Sec. 29.371. RULES. The comptroller shall adopt rules as
necessary to implement this subchapter, including:
(1) rules regarding expense reporting requirements
for program participants; and
(2) rules for implementing this subchapter in a manner
that ensures compliance with federal law regarding confidentiality
of student educational information, including the Family
Educational Rights and Privacy Act of 1974 (20 U.S.C. Section
1232g).
SECTION 2. Section 42.253, Education Code, is amended by
adding Subsection (b-1) to read as follows:
(b-1) Notwithstanding Subsection (b), the commissioner
shall adjust enrollment estimates and entitlement for each school
district for each school year based on information collected in
accordance with Section 29.367. This subsection expires September
1, 2020.
SECTION 3. This Act applies beginning with the 2017-2018
school year.
SECTION 4. Not later than 45 days after the effective date
of this Act, the comptroller of public accounts shall adopt rules
necessary to implement the individualized education plan account
program under Subchapter J, Chapter 29, Education Code, as added by
this Act.
SECTION 5. Notwithstanding Section 29.367(a), Education
Code, as added by this Act, the commissioner of education shall
provide the information described by that subsection as soon as
practicable after the effective date of this Act.
SECTION 6. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect on the 91st day after the last day of the
legislative session.