88R17135 MM-F
By: González of El Paso H.B. No. 166
Substitute the following for H.B. No. 166:
By: Buckley C.S.H.B. No. 166
A BILL TO BE ENTITLED
AN ACT
relating to policies and procedures regarding certain public school
students with disabilities.
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 Section
602(23), 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 48.102; 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 29.011(a), Education Code, is amended to
read as follows:
(a) The commissioner shall by rule adopt procedures for
compliance with federal requirements relating to transition
services for students who are enrolled in special education
programs under this subchapter. The procedures must specify the
manner in which a student's admission, review, and dismissal
committee must consider, and if appropriate, address the following
issues in the student's individualized education program:
(1) appropriate student involvement in the student's
transition to life outside the public school system;
(2) if the student is younger than 18 years of age,
appropriate involvement in the student's transition by the
student's parents and other persons invited to participate by:
(A) the student's parents; or
(B) the school district in which the student is
enrolled;
(3) if the student is at least 18 years of age,
involvement in the student's transition and future by the student's
parents and other persons, if the parent or other person:
(A) is invited to participate by the student or
the school district in which the student is enrolled; [or]
(B) has the student's consent to participate
pursuant to a supported decision-making agreement under Chapter
1357, Estates Code;
(C) is the student's agent under a power of
attorney; or
(D) is the student's educational representative
appointed under Section 29.0171;
(4) appropriate postsecondary education options,
including preparation for postsecondary-level coursework;
(5) an appropriate functional vocational evaluation;
(6) appropriate employment goals and objectives;
(7) if the student is at least 18 years of age, the
availability of age-appropriate instructional environments,
including community settings or environments that prepare the
student for postsecondary education or training, competitive
integrated employment, or independent living, in coordination with
the student's transition goals and objectives;
(8) appropriate independent living goals and
objectives;
(9) appropriate circumstances for facilitating a
referral of a student or the student's parents to a governmental
agency for services or public benefits, including a referral to a
governmental agency to place the student on a waiting list for
public benefits available to the student, such as a waiver program
established under Section 1915(c), Social Security Act (42 U.S.C.
Section 1396n(c)); and
(10) the use and availability of appropriate:
(A) supplementary aids, services, curricula, and
other opportunities to assist the student in developing
decision-making skills; and
(B) supports and services to foster the student's
independence and self-determination, including a supported
decision-making agreement under Chapter 1357, Estates Code.
SECTION 3. Section 29.0162, Education Code, is amended by
amending Subsection (a) and adding Subsection (d-1) to read as
follows:
(a) A person in an impartial due process hearing brought
under 20 U.S.C. Section 1415 may be represented by:
(1) an attorney who is licensed in this state; [or]
(2) an individual who is not an attorney licensed in
this state but who has special knowledge or training with respect to
problems of children with disabilities and who satisfies
qualifications under Subsection (b);
(3) a parent for a person younger than 18 years of age;
(4) an agent under a power of attorney;
(5) a supporter under a supported decision-making
agreement under Chapter 1357, Estates Code; or
(6) an educational representative appointed under
Section 29.0171.
(d-1) The agency:
(1) may not regulate the appointment or selection of
an educational representative under Section 29.0171; and
(2) has no jurisdiction over any issue concerning the
capacity of an adult student.
SECTION 4. 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:
(1) an agent under a power of attorney; or
(2) 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:
(1) an agent under a power of attorney; or
(2) 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, power
of attorney for educational decision-making, 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, including a supported decision-making agreement
under Chapter 1357, Estates Code, power of attorney for educational
decision-making, 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, power of attorney for educational decision-making, and
the appointment of an educational representative under Section
29.0171 [under Chapter 1357, Estates Code].
SECTION 5. 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
student's parent or, if unavailable, the person who most recently
represented the student's interests, may serve as 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 or developmental
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 a licensed physician, licensed physician
assistant, licensed clinical psychologist, licensed clinical
social worker, or licensed specialist in school psychology; and
(2) may not:
(A) be an employee of the school district; 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 and the student's parent or person
standing in parental relation to the student.
(f) A reevaluation of an adult student under 34 C.F.R.
Section 300.303 may be used to request certification for the
student under Subsection (b).
(g) A certification under Subsection (b) must be renewed
annually.
(h) On receiving written notice from a student's parent,
legal guardian, or spouse or another person who recently
represented the student's interests in another matter as the
student's educational representative that is accompanied by the
certification for the student made under Subsection (b) dated not
earlier than the 91st day before the date the notice is submitted, a
school district shall:
(1) not later than:
(A) the fifth school day following the date the
district receives the notice, notify the student in the manner
appropriate for the student's most proficient method of
communication that the district has received the notice; and
(B) the 15th school day following the date the
district receives the written notice, accept the certification made
under Subsection (b); and
(2) promptly acknowledge and recognize the student's
parent, or, if unavailable, one of the following individuals in the
order listed as the student's educational representative:
(A) the person who last cared for the student;
(B) the person with whom the student currently
lives; or
(C) another appropriate individual who:
(i) is preferred by the student;
(ii) is not employed by the district; and
(iii) has significant knowledge of the
student and the student's strengths, opportunities, and
post-educational transitional goals.
(i) 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).
(j) 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;
(2) notify the student when the representative has
provided informed consent or made any educational decisions on the
student's behalf; and
(3) have all the rights of a parent under Chapter 26.
(k) If a student expresses disagreement with an informed
consent or educational decision made by the student's educational
representative on the student's behalf, the school district shall
include a statement to that effect in the student's individualized
education program.
(l) 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; or
(4) the date the student rescinds the representative's
appointment under Subsection (m).
(m) 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
student's admission, review, and dismissal committee 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 to the student. The school district
shall notify the person who submitted the notice regarding the
appointment under Subsection (h) regarding the rescission.
(n) 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.
(o) Any documentation relating to the appointment of an
educational representative under this section, including
certification under Subsection (b) or notice regarding the
appointment of an educational representative under Subsection (h),
is confidential and not subject to disclosure under Chapter 552,
Government Code.
(p) 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.
(q) The commissioner shall develop and post on the agency's
Internet website model forms that may be used for a certification
under Subsection (b).
(r) 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 6. Section 29.017(f), Education Code, is repealed.
SECTION 7. 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.