Texas 2021 - 87th Regular

Texas Senate Bill SB2105 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	87R2036 MM-F
2	2	By: Zaffirini S.B. No. 2105
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the appointment of an educational representative for
8	8	certain students with disabilities.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Sections 29.017(a), (b), (c), and (c-2),
11	11	Education Code, are amended to read as follows:
12	12	(a) A student with a disability who is 18 years of age or
13	13	older or whose disabilities of minority have been removed for
14	14	general purposes under Chapter 31, Family Code, shall have the same
15	15	right to make educational decisions as a student without a
16	16	disability, except that the school district shall provide any
17	17	notice required by this subchapter or 20 U.S.C. Section 1415 to both
18	18	the student and the parents. All other rights accorded to parents
19	19	under this subchapter or 20 U.S.C. Section 1415 transfer to the
20	20	student or, if applicable, to the educational representative
21	21	appointed for the student under Section 29.0171.
22	22	(b) All rights accorded to parents under this subchapter or
23	23	20 U.S.C. Section 1415 transfer to a student [students] who is [are]
24	24	incarcerated in an adult or juvenile, state or local correctional
25	25	institution or, if applicable, to the educational representative
26	26	appointed for the student under Section 29.0171.
27	27	(c) Not later than one year before the 18th birthday of a
28	28	student with a disability, the school district at which the student
29	29	is enrolled shall:
30	30	(1) provide to the student and the student's parents:
31	31	(A) written notice regarding the transfer of
32	32	rights under this section; and
33	33	(B) information and resources regarding
34	34	guardianship, alternatives to guardianship, including a supported
35	35	decision-making agreement under Chapter 1357, Estates Code, the
36	36	appointment of an educational representative under Section
37	37	29.0171, and other supports and services that may enable the
38	38	student to live independently; and
39	39	(2) ensure that the student's individualized education
40	40	program includes a statement that the district provided the notice,
41	41	information, and resources required under Subdivision (1).
42	42	(c-2) If a student with a disability or the student's parent
43	43	requests information regarding guardianship, [or] alternatives to
44	44	guardianship, or the appointment of an educational representative
45	45	from the school district at which the student is enrolled, the
46	46	school district shall provide to the student or parent information
47	47	and resources on supported decision-making agreements under
48	48	Chapter 1357, Estates Code, and on the appointment of an
49	49	educational representative under Section 29.0171.
50	50	SECTION 2. Subchapter A, Chapter 29, Education Code, is
51	51	amended by adding Section 29.0171 to read as follows:
52	52	Sec. 29.0171. APPOINTMENT OF EDUCATIONAL REPRESENTATIVE.
53	53	(a) For purposes of compliance with 34 C.F.R. Section 300.520(b), a
54	54	school district shall appoint an educational representative as
55	55	provided by this section for a student who:
56	56	(1) is 18 years of age or older or whose disabilities
57	57	of minority have been removed for general purposes under Chapter
58	58	31, Family Code;
59	59	(2) has been certified under Subsection (b) as not
60	60	having the ability to provide informed consent regarding the
61	61	student's educational program; and
62	62	(3) has not been determined to be incompetent.
63	63	(b) A professional who meets the qualifications under
64	64	Subsection (d) may certify in writing that a student does not have
65	65	the ability to provide informed consent with respect to the
66	66	student's educational program based on the professional's knowledge
67	67	and expertise and clear and convincing evidence obtained through a
68	68	personal examination of or interview with the student.
69	69	(c) In making the determination that a student does not have
70	70	the ability to provide informed consent regarding the student's
71	71	educational program under Subsection (b), the professional:
72	72	(1) shall consider whether the student is unable to:
73	73	(A) communicate, even with appropriate verbal
74	74	support, in writing or in the student's most proficient method of
75	75	communication, the student's preferences, decisions, and consent
76	76	with respect to the student's educational program; and
77	77	(B) use an alternative to guardianship,
78	78	including a supported decision-making agreement under Chapter
79	79	1357, Estates Code, or power of attorney, for educational
80	80	decision-making; and
81	81	(2) may not determine that the student is unable to
82	82	provide informed consent based solely on the fact that the student
83	83	has been voluntarily or involuntarily hospitalized for a mental
84	84	illness or has a diagnosis of an intellectual disability.
85	85	(d) To certify that a student does not have the ability to
86	86	provide informed consent regarding the student's educational
87	87	program under Subsection (b), a professional:
88	88	(1) must be a licensed physician, licensed physician
89	89	assistant, or licensed clinical psychologist; and
90	90	(2) may not:
91	91	(A) be an employee of the school district
92	92	currently serving the student; and
93	93	(B) have any interests that conflict with the
94	94	interests of the student or the person seeking appointment as the
95	95	student's educational representative, including being related by
96	96	blood or marriage.
97	97	(e) A professional who provides a certification for a
98	98	student under Subsection (b) must provide a copy of the
99	99	certification to the student.
100	100	(f) A reevaluation of a student under 34 C.F.R. Section
101	101	300.303 may be used to request certification for the student under
102	102	Subsection (b).
103	103	(g) On receiving a written request from a student's parent,
104	104	legal guardian, or spouse or another interested adult to appoint an
105	105	educational representative for the student that is accompanied with
106	106	the certification for the student made under Subsection (b) dated
107	107	not earlier than the 91st day before the date the request is
108	108	submitted, a school district shall:
109	109	(1) not later than:
110	110	(A) the fifth school day following the date the
111	111	district receives the request, notify the student in the manner
112	112	appropriate for the student's most proficient method of
113	113	communication that the district has received the request; and
114	114	(B) the 15th school day following the date the
115	115	district receives the request, determine whether the certification
116	116	conforms with Subsection (b); and
117	117	(2) if the district determines that the certification
118	118	conforms with Subsection (b), appoint one of the following
119	119	individuals in the order listed as the student's educational
120	120	representative:
121	121	(A) the student's spouse;
122	122	(B) the student's parent or legal guardian; or
123	123	(C) another appropriate individual who:
124	124	(i) is preferred by the student;
125	125	(ii) is not employed by the district; and
126	126	(iii) has significant knowledge of the
127	127	student and the student's strengths, opportunities, and
128	128	post-educational transitional goals.
129	129	(h) The scope of an appointment as an educational
130	130	representative under this section is limited to representing the
131	131	educational interests of the student in accordance with 34 C.F.R.
132	132	Section 300.520(b).
133	133	(i) An educational representative appointed for a student
134	134	under this section shall:
135	135	(1) in representing the student's educational
136	136	interests:
137	137	(A) consider the student's interests,
138	138	preferences, and goals; and
139	139	(B) consult with the student before providing
140	140	informed consent or making educational decisions on the student's
141	141	behalf; and
142	142	(2) notify the student when the representative has
143	143	provided informed consent or made any educational decisions on the
144	144	student's behalf.
145	145	(j) If a student expresses disagreement with an informed
146	146	consent or educational decision made by the student's educational
147	147	representative on the student's behalf, the school district shall
148	148	include a statement to that effect in the student's individualized
149	149	education program.
150	150	(k) The term of an educational representative's appointment
151	151	under this section expires on the earliest of:
152	152	(1) the date the student is no longer eligible for
153	153	special education services;
154	154	(2) the date the student graduates from high school
155	155	with a high school diploma under Section 28.025(c)(1);
156	156	(3) the date a guardian is appointed for the student
157	157	under Chapter 1101, Estates Code; or
158	158	(4) the date the student rescinds the representative's
159	159	appointment under Subsection (l).
160	160	(l) A student who has not been determined to be incompetent
161	161	may rescind at any time, in writing or in the student's most
162	162	proficient method of communication, the appointment of an
163	163	educational representative for the student under this section. If
164	164	the student is unable to rescind the appointment in writing, the
165	165	school district serving the student shall document the student's
166	166	rescission on the student's behalf. If rescinded, all rights
167	167	accorded to parents under this subchapter or 20 U.S.C. Section 1415
168	168	transfer to the student. The school district shall notify the
169	169	person who submitted the request for the appointment under
170	170	Subsection (g) regarding the rescission.
171	171	(m) A certification under Subsection (b) that a student is
172	172	unable to provide informed consent with respect to the student's
173	173	educational program or the appointment of an educational
174	174	representative for the student under this section may not be
175	175	construed as a finding of the student's incompetence or incapacity
176	176	for any other purpose or as relevant or precedential evidence in any
177	177	future court or legal action seeking to remove decision-making
178	178	authority from the student.
179	179	(n) Any documentation relating to the appointment of an
180	180	educational representative under this section, including
181	181	certification under Subsection (b) or a request for the appointment
182	182	of an educational representative under Subsection (g), is
183	183	confidential and not subject to disclosure under Chapter 552,
184	184	Government Code.
185	185	(o) Nothing in this section prohibits the appointment of a
186	186	guardian under Chapter 1101, Estates Code, for a student for whom an
187	187	educational representative has been appointed under this section.
188	188	(p) The commissioner shall develop and post on the agency's
189	189	Internet website model forms that may be used for a certification
190	190	under Subsection (b) and a request for appointment of an
191	191	educational representative under Subsection (g).
192	192	(q) The commissioner shall adopt rules to implement this
193	193	section, including rules to ensure compliance with the Family
194	194	Educational Rights and Privacy Act of 1974 (20 U.S.C. Section
195	195	1232g).
196	196	SECTION 3. Section 29.017(f), Education Code, is repealed.
197	197	SECTION 4. This Act takes effect immediately if it receives
198	198	a vote of two-thirds of all the members elected to each house, as
199	199	provided by Section 39, Article III, Texas Constitution. If this
200	200	Act does not receive the vote necessary for immediate effect, this
201	201	Act takes effect September 1, 2021.