By: Menéndez S.B. No. 100
A BILL TO BE ENTITLED
AN ACT
relating to the appointment of foster parents and other qualified
persons to serve as educational decision-makers for certain
children in the conservatorship of the Department of Family and
Protective Services.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 29.002, Education Code, is amended to
read as follows:
Sec. 29.002. DEFINITIONS [DEFINITION]. In this subchapter:
(1) "Parent" has the meaning assigned by the
Individuals with Disabilities Education Act (20 U.S.C. Section
1401(23)).
(2) "Special [, "special] services" means:
(A) [(1)] special education instruction, which
may be provided by professional and supported by paraprofessional
personnel in the regular classroom or in an instructional
arrangement described by Section 42.151; and
(B) [(2)] related services, which are
developmental, corrective, supportive, or evaluative services, not
instructional in nature, that may be required for the student to
benefit from special education instruction and for implementation
of a student's individualized education program.
SECTION 2. Section 29.015, Education Code, is amended to
read as follows:
Sec. 29.015. SPECIAL EDUCATION DECISION-MAKING FOR
CHILDREN IN FOSTER CARE [FOSTER PARENTS]. (a) [The school district
shall give preferential consideration to a foster parent of a child
with a disability when assigning a surrogate parent for the child.
[(b)] A foster parent may act as a parent of a child with a
disability, as authorized under 20 U.S.C. Section 1415(b) and its
subsequent amendments, if:
(1) the Department of Family and Protective [and
Regulatory] Services is appointed as the temporary or permanent
managing conservator of the child;
(2) the rights and duties of the department to make
decisions regarding special education provided to the child under
Section 153.371, Family Code, have not been limited by court order
[the child has been placed with the foster parent for at least 60
days]; and
(3) the foster parent agrees to:
(A) participate in making special education
[educational] decisions on the child's behalf; and
(B) complete a training program [for surrogate
parents] that complies with minimum standards established by agency
rule [; and
[(4) the foster parent has no interest that conflicts
with the child's interests].
(b) A foster parent who will act as a parent of a child with
a disability as provided by Subsection (a) must complete a training
program before the next scheduled admission, review, and dismissal
committee meeting for the child but not later than the 90th day
after the date the foster parent begins acting as the parent for the
purpose of making education decisions.
(b-1) A school district may not require a foster parent to
retake a training program to continue serving as a child's parent or
to serve as the surrogate parent for another child if the foster
parent has completed a training program to act as a parent of a
child with a disability provided by:
(1) the Department of Family and Protective Services;
(2) a school district;
(3) an education service center; or
(4) any other entity that receives federal funds to
provide special education training to parents.
(c) A foster parent who is denied the right to act as a
[surrogate parent or a] parent under this section by a school
district may file a complaint with the agency in accordance with
federal law and regulations.
(d) Not later than the fifth day after the date a child with
a disability is enrolled in a school, the Department of Family and
Protective Services must inform the appropriate school district if
the child's foster parent is unwilling or unable to serve as a
parent for the purposes of this subchapter.
SECTION 3. Subchapter A, Chapter 29, Education Code, is
amended by adding Section 29.0151 to read as follows:
Sec. 29.0151. APPOINTMENT OF SURROGATE PARENT FOR CERTAIN
CHILDREN. (a) This section applies to a child with a disability for
whom:
(1) the Department of Family and Protective Services
is appointed as the temporary or permanent managing conservator of
the child; and
(2) the rights and duties of the department to make
decisions regarding the child's education under Section 153.371,
Family Code, have not been limited by court order.
(b) Except as provided by Section 263.0025, Family Code, a
school district must appoint an individual to serve as the
surrogate parent for a child if:
(1) the district is unable to identify or locate a
parent for a child with a disability; or
(2) the foster parent of a child is unwilling or unable
to serve as a parent for the purposes of this subchapter.
(c) A surrogate parent appointed by a school district may
not:
(1) be an employee of the state, the school district,
or any other agency involved in the education or care of the child;
or
(2) have any interest that conflicts with the
interests of the child.
(d) A surrogate parent appointed by a district must:
(1) be willing to serve in that capacity;
(2) exercise independent judgment in pursuing the
child's interests;
(3) ensure that the child's due process rights under
applicable state and federal laws are not violated;
(4) complete a training program that complies with
minimum standards established by agency rule within the time
specified in Section 29.015(b);
(5) visit the child and the school where the child is
enrolled;
(6) review the child's educational records;
(7) consult with any person involved in the child's
education, including the child's:
(A) teachers;
(B) caseworkers;
(C) court-appointed volunteers;
(D) guardian ad litem;
(E) attorney ad litem;
(F) foster parent; and
(G) caregiver; and
(8) attend meetings of the child's admission, review,
and dismissal committee.
(e) The district may appoint a person who has been appointed
to serve as a child's guardian ad litem or as a court-certified
volunteer advocate, as provided under Section 107.031(c), Family
Code, as the child's surrogate parent.
(f) If a court appoints a surrogate parent for a child with a
disability under Section 263.0025, Family Code, and the school
district determines that the surrogate parent is failing to perform
or is not properly performing the duties listed under Subsection
(d), the district shall consult with the Department of Family and
Protective Services and appoint another person to serve as the
surrogate parent for the child.
(g) On receiving notice from a school district under
Subsection (f), the Department of Family and Protective Services
must promptly notify the court of the failure of the appointed
surrogate parent to properly perform the duties required under this
section.
SECTION 4. Section 107.031(c), Family Code, is amended to
read as follows:
(c) A court-certified volunteer advocate appointed under
this section may be assigned to act as a surrogate parent for the
child, as provided by 20 U.S.C. Section 1415(b), if:
(1) the child is in the conservatorship of the
Department of Family and Protective Services;
(2) the volunteer advocate is serving as guardian ad
litem for the child; [and]
(3) a foster parent of the child is not acting as the
child's parent under Section 29.015, Education Code; and
(4) the volunteer advocate completes a training
program for surrogate parents that complies with minimum standards
established by rule by the Texas Education Agency within the time
specified by Section 29.015(b), Education Code.
SECTION 5. Section 263.0025, Family Code, is amended to
read as follows:
Sec. 263.0025. EDUCATIONAL DECISION-MAKING FOR CHILDREN IN
FOSTER CARE [APPOINTMENT OF SURROGATE PARENT]. (a) In this section:
(1) "Child" means a child in the temporary or
permanent managing conservatorship of the department who is
eligible under Section 29.003, Education Code, to participate in a
school district's special education program.
(2) "Parent" has the definition assigned by the
Individuals with Disabilities Education Act (20 U.S.C. Section
1401(23)) [If a child in the temporary or permanent conservatorship
of the department is eligible under Section 29.003, Education Code,
to participate in a school district's special education program,
the court may, when necessary to ensure that the educational rights
of the child are protected, appoint a surrogate parent who:
[(1) is willing to serve in that capacity; and
[(2) meets the requirements of 20 U.S.C. Section
1415(b) and Section 29.001(10), Education Code].
(a-1) A foster parent for a child may act as a parent for the
child, as authorized under 20 U.S.C. Section 1415(b), if:
(1) the rights and duties of the department to make
decisions regarding the child's education under Section 153.371
have not been limited by court order; and
(2) the foster parent agrees to the requirements of
Sections 29.015(a)(3) and (b), Education Code.
(a-2) Sections 29.015(b-1), (c), and (d), Education Code,
apply to a foster parent who acts or desires to act as a parent for a
child for the purpose of making special education decisions.
(b) To ensure the educational rights of a child are
protected in the special education process, the court may appoint a
surrogate parent for the child if:
(1) the child's school district is unable to identify
or locate a parent for the child; or
(2) the foster parent of the child is unwilling or
unable to serve as a parent for the purposes of this subchapter [In
appointing a surrogate parent for a child, the court shall give
preferential consideration to a foster parent of the child as
required under Section 29.015, Education Code].
(c) Except as provided by Subsection (d), the court may
appoint a person to serve as a child's surrogate parent if the
person:
(1) is willing to serve in that capacity; and
(2) meets the requirements of 20 U.S.C. Section
1415(b) [If the court does not appoint a child's foster parent to
serve as the child's surrogate parent, the court shall give
consideration to:
[(1) a relative or other designated caregiver as
defined by Section 264.751; or
[(2) a court-appointed volunteer advocate who has been
appointed to serve as the child's guardian ad litem, as provided by
Section 107.031(c)].
(d) The following persons may not be appointed as a
surrogate parent for the child:
(1) an employee of the department;
(2) an employee of the Texas Education Agency;
(3) an employee of a school or school district; or
(4) an employee of any other agency that is involved in
the education or care of the child.
(e) The court may appoint a child's guardian ad litem or
court-certified volunteer advocate, as provided by Section
107.031(c), as the child's surrogate parent.
(f) In appointing a person to serve as the surrogate parent
for a child, the court may consider the person's ability to meet the
qualifications listed under Sections 29.0151(d)(2)-(8), Education
Code.
(g) If the court prescribes training for a person who is
appointed as the surrogate parent for a child, the training program
must comply with the minimum standards for training established by
rule by the Texas Education Agency.
SECTION 6. This Act takes effect September 1, 2017.