88R431 MM-F
By: González of El Paso H.B. No. 166
A BILL TO BE ENTITLED
AN ACT
relating to the appointment of an educational representative for
certain students with disabilities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 29.017(a), (b), (c), and (c-2),
Education Code, are amended to read as follows:
(a) A student with a disability who is 18 years of age or
older or whose disabilities of minority have been removed for
general purposes under Chapter 31, Family Code, shall have the same
right to make educational decisions as a student without a
disability, except that the school district shall provide any
notice required by this subchapter or 20 U.S.C. Section 1415 to both
the student and the parents. All other rights accorded to parents
under this subchapter or 20 U.S.C. Section 1415 transfer to the
student or, if applicable, to the educational representative
appointed for the student under Section 29.0171.
(b) All rights accorded to parents under this subchapter or
20 U.S.C. Section 1415 transfer to a student [students] who is [are]
incarcerated in an adult or juvenile, state or local correctional
institution or, if applicable, to the educational representative
appointed for the student under Section 29.0171.
(c) Not later than one year before the 18th birthday of a
student with a disability, the school district at which the student
is enrolled shall:
(1) provide to the student and the student's parents:
(A) written notice regarding the transfer of
rights under this section; and
(B) information and resources regarding
guardianship, alternatives to guardianship, including a supported
decision-making agreement under Chapter 1357, Estates Code, the
appointment of an educational representative under Section
29.0171, and other supports and services that may enable the
student to live independently; and
(2) ensure that the student's individualized education
program includes a statement that the district provided the notice,
information, and resources required under Subdivision (1).
(c-2) If a student with a disability or the student's parent
requests information regarding guardianship, [or] alternatives to
guardianship, or the appointment of an educational representative
from the school district at which the student is enrolled, the
school district shall provide to the student or parent information
and resources on supported decision-making agreements under
Chapter 1357, Estates Code, and on the appointment of an
educational representative under Section 29.0171.
SECTION 2. Subchapter A, Chapter 29, Education Code, is
amended by adding Section 29.0171 to read as follows:
Sec. 29.0171. APPOINTMENT OF EDUCATIONAL REPRESENTATIVE.
(a) For purposes of compliance with 34 C.F.R. Section 300.520(b), a
school district or open-enrollment charter school shall appoint an
educational representative as provided by this section for a
student who:
(1) is 18 years of age or older or whose disabilities
of minority have been removed for general purposes under Chapter
31, Family Code;
(2) has been certified under Subsection (b) as not
having the ability to provide informed consent regarding the
student's educational program; and
(3) has not been determined to be incompetent.
(b) A professional who meets the qualifications under
Subsection (d) may certify in writing that a student does not have
the ability to provide informed consent with respect to the
student's educational program based on the professional's knowledge
and expertise and clear and convincing evidence obtained through a
personal examination of or interview with the student.
(c) In making the determination that a student does not have
the ability to provide informed consent regarding the student's
educational program under Subsection (b), the professional:
(1) shall consider whether the student is unable to:
(A) communicate, even with appropriate verbal
support, in writing or in the student's most proficient method of
communication, the student's preferences, decisions, and consent
with respect to the student's educational program; and
(B) use an alternative to guardianship,
including a supported decision-making agreement under Chapter
1357, Estates Code, or power of attorney, for educational
decision-making; and
(2) may not determine that the student is unable to
provide informed consent based solely on the fact that the student
has been voluntarily or involuntarily hospitalized for a mental
illness or has a diagnosis of an intellectual disability.
(d) To certify that a student does not have the ability to
provide informed consent regarding the student's educational
program under Subsection (b), a professional:
(1) must be one of the following practitioners
licensed to practice in this state:
(A) a physician;
(B) a physician assistant; or
(C) a clinical psychologist; and
(2) may not:
(A) be an employee of the school district or
open-enrollment charter school currently serving the student; and
(B) have any interests that conflict with the
interests of the student or the person seeking appointment as the
student's educational representative, including being related by
blood or marriage.
(e) A professional who provides a certification for a
student under Subsection (b) must provide a copy of the
certification to the student.
(f) A reevaluation of a student under 34 C.F.R. Section
300.303 may be used to request certification for the student under
Subsection (b).
(g) On receiving a written, signed request from a student's
parent, legal guardian, or spouse or another interested adult to
appoint an educational representative for the student that is
accompanied by the certification for the student made under
Subsection (b) dated not earlier than the 91st day before the date
the request is submitted, a school district or open-enrollment
charter school shall:
(1) not later than:
(A) the fifth business day following the date the
district or school receives the request, notify the student in the
manner appropriate for the student's most proficient method of
communication that the district or school has received the request;
and
(B) the 15th business day following the date the
district or school receives the request, determine whether the
certification conforms with Subsection (b); and
(2) if the district or school determines that the
certification conforms with Subsection (b), promptly appoint one of
the following individuals in the order listed as the student's
educational representative:
(A) the student's parent or legal guardian;
(B) the student's spouse; or
(C) another appropriate individual who:
(i) is preferred by the student;
(ii) is not employed by the district or
school; and
(iii) has significant knowledge of the
student and the student's strengths, opportunities, and
post-educational transitional goals.
(h) The scope of an appointment as an educational
representative under this section is limited to representing the
educational interests of the student in accordance with 34 C.F.R.
Section 300.520(b).
(i) An educational representative appointed for a student
under this section shall:
(1) in representing the student's educational
interests:
(A) consider the student's interests,
preferences, and goals; and
(B) consult with the student before providing
informed consent or making educational decisions on the student's
behalf; and
(2) notify the student when the representative has
provided informed consent or made any educational decisions on the
student's behalf.
(j) The term of an educational representative's appointment
under this section expires on the earliest of:
(1) the date the student is no longer eligible for
special education services;
(2) the date the student graduates from high school
with a high school diploma under Section 28.025(c)(1);
(3) the date a guardian is appointed for the student
under Chapter 1101, Estates Code;
(4) the date the student rescinds the representative's
appointment under Subsection (k); or
(5) the date the school district or open-enrollment
charter school receives a written notice of resignation from the
educational representative.
(k) A student who has not been determined to be incompetent
may rescind at any time, in writing or in the student's most
proficient method of communication, the appointment of an
educational representative for the student under this section. If
the student is unable to rescind the appointment in writing, the
school district or open-enrollment charter school serving the
student shall document the student's rescission on the student's
behalf. If rescinded, all rights accorded to parents under this
subchapter or 20 U.S.C. Section 1415 transfer from the educational
representative to the student.
(l) A certification under Subsection (b) that a student is
unable to provide informed consent with respect to the student's
educational program or the appointment of an educational
representative for the student under this section may not be
construed as a finding of the student's incompetence or incapacity
for any other purpose or as relevant or precedential evidence in any
future court or legal action seeking to remove decision-making
authority from the student.
(m) Any documentation relating to the appointment of an
educational representative under this section, including
certification under Subsection (b) or a request for the appointment
of an educational representative under Subsection (g), is
confidential and not subject to disclosure under Chapter 552,
Government Code.
(n) Nothing in this section prohibits the appointment of a
guardian under Chapter 1101, Estates Code, for a student for whom an
educational representative has been appointed under this section.
(o) The commissioner shall develop and post on the agency's
Internet website model forms that may be used for a certification
under Subsection (b) and a request for appointment of an
educational representative under Subsection (g).
(p) The commissioner shall adopt rules to implement this
section, including rules to ensure compliance with the Family
Educational Rights and Privacy Act of 1974 (20 U.S.C. Section
1232g).
SECTION 3. Section 29.017(f), Education Code, is repealed.
SECTION 4. 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 September 1, 2023.