| 1 | 1 | | 88R17135 MM-F |
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| 2 | 2 | | By: González of El Paso, VanDeaver, H.B. No. 166 |
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| 3 | 3 | | Harris of Williamson, Gamez, Moody |
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| 4 | 4 | | |
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| 5 | 5 | | |
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| 6 | 6 | | A BILL TO BE ENTITLED |
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| 7 | 7 | | AN ACT |
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| 8 | 8 | | relating to policies and procedures regarding certain public school |
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| 9 | 9 | | students with disabilities. |
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| 10 | 10 | | BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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| 11 | 11 | | SECTION 1. Section 29.002, Education Code, is amended to |
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| 12 | 12 | | read as follows: |
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| 13 | 13 | | Sec. 29.002. DEFINITIONS [DEFINITION]. In this subchapter: |
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| 14 | 14 | | (1) "Parent" has the meaning assigned by Section |
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| 15 | 15 | | 602(23), Individuals with Disabilities Education Act (20 U.S.C. |
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| 16 | 16 | | Section 1401(23)). |
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| 17 | 17 | | (2) "Special [, "special] services" means: |
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| 18 | 18 | | (A) [(1)] special education instruction, which |
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| 19 | 19 | | may be provided by professional and supported by paraprofessional |
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| 20 | 20 | | personnel in the regular classroom or in an instructional |
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| 21 | 21 | | arrangement described by Section 48.102; and |
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| 22 | 22 | | (B) [(2)] related services, which are |
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| 23 | 23 | | developmental, corrective, supportive, or evaluative services[, |
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| 24 | 24 | | not instructional in nature,] that may be required for the student |
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| 25 | 25 | | to benefit from special education instruction and for |
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| 26 | 26 | | implementation of a student's individualized education program. |
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| 27 | 27 | | SECTION 2. Section 29.011(a), Education Code, is amended to |
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| 28 | 28 | | read as follows: |
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| 29 | 29 | | (a) The commissioner shall by rule adopt procedures for |
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| 30 | 30 | | compliance with federal requirements relating to transition |
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| 31 | 31 | | services for students who are enrolled in special education |
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| 32 | 32 | | programs under this subchapter. The procedures must specify the |
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| 33 | 33 | | manner in which a student's admission, review, and dismissal |
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| 34 | 34 | | committee must consider, and if appropriate, address the following |
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| 35 | 35 | | issues in the student's individualized education program: |
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| 36 | 36 | | (1) appropriate student involvement in the student's |
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| 37 | 37 | | transition to life outside the public school system; |
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| 38 | 38 | | (2) if the student is younger than 18 years of age, |
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| 39 | 39 | | appropriate involvement in the student's transition by the |
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| 40 | 40 | | student's parents and other persons invited to participate by: |
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| 41 | 41 | | (A) the student's parents; or |
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| 42 | 42 | | (B) the school district in which the student is |
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| 43 | 43 | | enrolled; |
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| 44 | 44 | | (3) if the student is at least 18 years of age, |
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| 45 | 45 | | involvement in the student's transition and future by the student's |
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| 46 | 46 | | parents and other persons, if the parent or other person: |
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| 47 | 47 | | (A) is invited to participate by the student or |
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| 48 | 48 | | the school district in which the student is enrolled; [or] |
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| 49 | 49 | | (B) has the student's consent to participate |
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| 50 | 50 | | pursuant to a supported decision-making agreement under Chapter |
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| 51 | 51 | | 1357, Estates Code; |
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| 52 | 52 | | (C) is the student's agent under a power of |
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| 53 | 53 | | attorney; or |
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| 54 | 54 | | (D) is the student's educational representative |
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| 55 | 55 | | appointed under Section 29.0171; |
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| 56 | 56 | | (4) appropriate postsecondary education options, |
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| 57 | 57 | | including preparation for postsecondary-level coursework; |
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| 58 | 58 | | (5) an appropriate functional vocational evaluation; |
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| 59 | 59 | | (6) appropriate employment goals and objectives; |
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| 60 | 60 | | (7) if the student is at least 18 years of age, the |
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| 61 | 61 | | availability of age-appropriate instructional environments, |
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| 62 | 62 | | including community settings or environments that prepare the |
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| 63 | 63 | | student for postsecondary education or training, competitive |
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| 64 | 64 | | integrated employment, or independent living, in coordination with |
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| 65 | 65 | | the student's transition goals and objectives; |
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| 66 | 66 | | (8) appropriate independent living goals and |
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| 67 | 67 | | objectives; |
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| 68 | 68 | | (9) appropriate circumstances for facilitating a |
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| 69 | 69 | | referral of a student or the student's parents to a governmental |
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| 70 | 70 | | agency for services or public benefits, including a referral to a |
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| 71 | 71 | | governmental agency to place the student on a waiting list for |
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| 72 | 72 | | public benefits available to the student, such as a waiver program |
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| 73 | 73 | | established under Section 1915(c), Social Security Act (42 U.S.C. |
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| 74 | 74 | | Section 1396n(c)); and |
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| 75 | 75 | | (10) the use and availability of appropriate: |
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| 76 | 76 | | (A) supplementary aids, services, curricula, and |
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| 77 | 77 | | other opportunities to assist the student in developing |
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| 78 | 78 | | decision-making skills; and |
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| 79 | 79 | | (B) supports and services to foster the student's |
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| 80 | 80 | | independence and self-determination, including a supported |
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| 81 | 81 | | decision-making agreement under Chapter 1357, Estates Code. |
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| 82 | 82 | | SECTION 3. Section 29.0162, Education Code, is amended by |
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| 83 | 83 | | amending Subsection (a) and adding Subsection (d-1) to read as |
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| 84 | 84 | | follows: |
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| 85 | 85 | | (a) A person in an impartial due process hearing brought |
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| 86 | 86 | | under 20 U.S.C. Section 1415 may be represented by: |
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| 87 | 87 | | (1) an attorney who is licensed in this state; [or] |
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| 88 | 88 | | (2) an individual who is not an attorney licensed in |
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| 89 | 89 | | this state but who has special knowledge or training with respect to |
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| 90 | 90 | | problems of children with disabilities and who satisfies |
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| 91 | 91 | | qualifications under Subsection (b); |
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| 92 | 92 | | (3) a parent for a person younger than 18 years of age; |
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| 93 | 93 | | (4) an agent under a power of attorney; |
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| 94 | 94 | | (5) a supporter under a supported decision-making |
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| 95 | 95 | | agreement under Chapter 1357, Estates Code; or |
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| 96 | 96 | | (6) an educational representative appointed under |
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| 97 | 97 | | Section 29.0171. |
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| 98 | 98 | | (d-1) The agency: |
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| 99 | 99 | | (1) may not regulate the appointment or selection of |
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| 100 | 100 | | an educational representative under Section 29.0171; and |
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| 101 | 101 | | (2) has no jurisdiction over any issue concerning the |
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| 102 | 102 | | capacity of an adult student. |
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| 103 | 103 | | SECTION 4. Sections 29.017(a), (b), (c), and (c-2), |
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| 104 | 104 | | Education Code, are amended to read as follows: |
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| 105 | 105 | | (a) A student with a disability who is 18 years of age or |
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| 106 | 106 | | older or whose disabilities of minority have been removed for |
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| 107 | 107 | | general purposes under Chapter 31, Family Code, shall have the same |
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| 108 | 108 | | right to make educational decisions as a student without a |
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| 109 | 109 | | disability, except that the school district shall provide any |
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| 110 | 110 | | notice required by this subchapter or 20 U.S.C. Section 1415 to both |
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| 111 | 111 | | the student and the parents. All other rights accorded to parents |
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| 112 | 112 | | under this subchapter or 20 U.S.C. Section 1415 transfer to the |
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| 113 | 113 | | student or, if applicable, to: |
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| 114 | 114 | | (1) an agent under a power of attorney; or |
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| 115 | 115 | | (2) the educational representative appointed for the |
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| 116 | 116 | | student under Section 29.0171. |
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| 117 | 117 | | (b) All rights accorded to parents under this subchapter or |
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| 118 | 118 | | 20 U.S.C. Section 1415 transfer to a student [students] who is [are] |
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| 119 | 119 | | incarcerated in an adult or juvenile, state or local correctional |
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| 120 | 120 | | institution or, if applicable, to: |
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| 121 | 121 | | (1) an agent under a power of attorney; or |
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| 122 | 122 | | (2) the educational representative appointed for the |
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| 123 | 123 | | student under Section 29.0171. |
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| 124 | 124 | | (c) Not later than one year before the 18th birthday of a |
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| 125 | 125 | | student with a disability, the school district at which the student |
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| 126 | 126 | | is enrolled shall: |
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| 127 | 127 | | (1) provide to the student and the student's parents: |
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| 128 | 128 | | (A) written notice regarding the transfer of |
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| 129 | 129 | | rights under this section; and |
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| 130 | 130 | | (B) information and resources regarding |
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| 131 | 131 | | guardianship, alternatives to guardianship, including a supported |
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| 132 | 132 | | decision-making agreement under Chapter 1357, Estates Code, power |
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| 133 | 133 | | of attorney for educational decision-making, the appointment of an |
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| 134 | 134 | | educational representative under Section 29.0171, and other |
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| 135 | 135 | | supports and services that may enable the student to live |
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| 136 | 136 | | independently; and |
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| 137 | 137 | | (2) ensure that the student's individualized education |
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| 138 | 138 | | program includes a statement that the district provided the notice, |
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| 139 | 139 | | information, and resources required under Subdivision (1). |
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| 140 | 140 | | (c-2) If a student with a disability or the student's parent |
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| 141 | 141 | | requests information regarding guardianship, [or] alternatives to |
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| 142 | 142 | | guardianship, including a supported decision-making agreement |
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| 143 | 143 | | under Chapter 1357, Estates Code, power of attorney for educational |
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| 144 | 144 | | decision-making, or the appointment of an educational |
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| 145 | 145 | | representative from the school district at which the student is |
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| 146 | 146 | | enrolled, the school district shall provide to the student or |
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| 147 | 147 | | parent information and resources on supported decision-making |
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| 148 | 148 | | agreements, power of attorney for educational decision-making, and |
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| 149 | 149 | | the appointment of an educational representative under Section |
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| 150 | 150 | | 29.0171 [under Chapter 1357, Estates Code]. |
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| 151 | 151 | | SECTION 5. Subchapter A, Chapter 29, Education Code, is |
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| 152 | 152 | | amended by adding Section 29.0171 to read as follows: |
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| 153 | 153 | | Sec. 29.0171. APPOINTMENT OF EDUCATIONAL REPRESENTATIVE. |
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| 154 | 154 | | (a) For purposes of compliance with 34 C.F.R. Section 300.520(b), a |
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| 155 | 155 | | student's parent or, if unavailable, the person who most recently |
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| 156 | 156 | | represented the student's interests, may serve as an educational |
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| 157 | 157 | | representative as provided by this section for a student who: |
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| 158 | 158 | | (1) is 18 years of age or older or whose disabilities |
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| 159 | 159 | | of minority have been removed for general purposes under Chapter |
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| 160 | 160 | | 31, Family Code; |
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| 161 | 161 | | (2) has been certified under Subsection (b) as not |
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| 162 | 162 | | having the ability to provide informed consent regarding the |
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| 163 | 163 | | student's educational program; and |
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| 164 | 164 | | (3) has not been determined to be incompetent. |
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| 165 | 165 | | (b) A professional who meets the qualifications under |
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| 166 | 166 | | Subsection (d) may certify in writing that a student does not have |
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| 167 | 167 | | the ability to provide informed consent with respect to the |
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| 168 | 168 | | student's educational program based on the professional's knowledge |
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| 169 | 169 | | and expertise and clear and convincing evidence obtained through a |
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| 170 | 170 | | personal examination of or interview with the student. |
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| 171 | 171 | | (c) In making the determination that a student does not have |
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| 172 | 172 | | the ability to provide informed consent regarding the student's |
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| 173 | 173 | | educational program under Subsection (b), the professional: |
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| 174 | 174 | | (1) shall consider whether the student is unable to: |
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| 175 | 175 | | (A) communicate, even with appropriate verbal |
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| 176 | 176 | | support, in writing or in the student's most proficient method of |
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| 177 | 177 | | communication, the student's preferences, decisions, and consent |
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| 178 | 178 | | with respect to the student's educational program; and |
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| 179 | 179 | | (B) use an alternative to guardianship, |
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| 180 | 180 | | including a supported decision-making agreement under Chapter |
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| 181 | 181 | | 1357, Estates Code, or power of attorney, for educational |
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| 182 | 182 | | decision-making; and |
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| 183 | 183 | | (2) may not determine that the student is unable to |
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| 184 | 184 | | provide informed consent based solely on the fact that the student |
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| 185 | 185 | | has been voluntarily or involuntarily hospitalized for a mental |
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| 186 | 186 | | illness or has a diagnosis of an intellectual or developmental |
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| 187 | 187 | | disability. |
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| 188 | 188 | | (d) To certify that a student does not have the ability to |
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| 189 | 189 | | provide informed consent regarding the student's educational |
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| 190 | 190 | | program under Subsection (b), a professional: |
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| 191 | 191 | | (1) must be a licensed physician, licensed physician |
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| 192 | 192 | | assistant, licensed clinical psychologist, licensed clinical |
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| 193 | 193 | | social worker, or licensed specialist in school psychology; and |
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| 194 | 194 | | (2) may not: |
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| 195 | 195 | | (A) be an employee of the school district; and |
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| 196 | 196 | | (B) have any interests that conflict with the |
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| 197 | 197 | | interests of the student or the person seeking appointment as the |
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| 198 | 198 | | student's educational representative, including being related by |
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| 199 | 199 | | blood or marriage. |
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| 200 | 200 | | (e) A professional who provides a certification for a |
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| 201 | 201 | | student under Subsection (b) must provide a copy of the |
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| 202 | 202 | | certification to the student and the student's parent or person |
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| 203 | 203 | | standing in parental relation to the student. |
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| 204 | 204 | | (f) A reevaluation of an adult student under 34 C.F.R. |
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| 205 | 205 | | Section 300.303 may be used to request certification for the |
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| 206 | 206 | | student under Subsection (b). |
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| 207 | 207 | | (g) A certification under Subsection (b) must be renewed |
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| 208 | 208 | | annually. |
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| 209 | 209 | | (h) On receiving written notice from a student's parent, |
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| 210 | 210 | | legal guardian, or spouse or another person who recently |
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| 211 | 211 | | represented the student's interests in another matter as the |
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| 212 | 212 | | student's educational representative that is accompanied by the |
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| 213 | 213 | | certification for the student made under Subsection (b) dated not |
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| 214 | 214 | | earlier than the 91st day before the date the notice is submitted, a |
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| 215 | 215 | | school district shall: |
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| 216 | 216 | | (1) not later than: |
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| 217 | 217 | | (A) the fifth school day following the date the |
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| 218 | 218 | | district receives the notice, notify the student in the manner |
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| 219 | 219 | | appropriate for the student's most proficient method of |
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| 220 | 220 | | communication that the district has received the notice; and |
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| 221 | 221 | | (B) the 15th school day following the date the |
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| 222 | 222 | | district receives the written notice, accept the certification made |
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| 223 | 223 | | under Subsection (b); and |
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| 224 | 224 | | (2) promptly acknowledge and recognize the student's |
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| 225 | 225 | | parent, or, if unavailable, one of the following individuals in the |
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| 226 | 226 | | order listed as the student's educational representative: |
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| 227 | 227 | | (A) the person who last cared for the student; |
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| 228 | 228 | | (B) the person with whom the student currently |
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| 229 | 229 | | lives; or |
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| 230 | 230 | | (C) another appropriate individual who: |
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| 231 | 231 | | (i) is preferred by the student; |
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| 232 | 232 | | (ii) is not employed by the district; and |
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| 233 | 233 | | (iii) has significant knowledge of the |
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| 234 | 234 | | student and the student's strengths, opportunities, and |
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| 235 | 235 | | post-educational transitional goals. |
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| 236 | 236 | | (i) The scope of an appointment as an educational |
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| 237 | 237 | | representative under this section is limited to representing the |
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| 238 | 238 | | educational interests of the student in accordance with 34 C.F.R. |
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| 239 | 239 | | Section 300.520(b). |
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| 240 | 240 | | (j) An educational representative appointed for a student |
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| 241 | 241 | | under this section shall: |
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| 242 | 242 | | (1) in representing the student's educational |
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| 243 | 243 | | interests: |
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| 244 | 244 | | (A) consider the student's interests, |
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| 245 | 245 | | preferences, and goals; and |
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| 246 | 246 | | (B) consult with the student before providing |
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| 247 | 247 | | informed consent or making educational decisions on the student's |
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| 248 | 248 | | behalf; |
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| 249 | 249 | | (2) notify the student when the representative has |
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| 250 | 250 | | provided informed consent or made any educational decisions on the |
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| 251 | 251 | | student's behalf; and |
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| 252 | 252 | | (3) have all the rights of a parent under Chapter 26. |
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| 253 | 253 | | (k) If a student expresses disagreement with an informed |
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| 254 | 254 | | consent or educational decision made by the student's educational |
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| 255 | 255 | | representative on the student's behalf, the school district shall |
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| 256 | 256 | | include a statement to that effect in the student's individualized |
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| 257 | 257 | | education program. |
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| 258 | 258 | | (l) The term of an educational representative's appointment |
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| 259 | 259 | | under this section expires on the earliest of: |
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| 260 | 260 | | (1) the date the student is no longer eligible for |
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| 261 | 261 | | special education services; |
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| 262 | 262 | | (2) the date the student graduates from high school |
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| 263 | 263 | | with a high school diploma under Section 28.025(c)(1); |
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| 264 | 264 | | (3) the date a guardian is appointed for the student |
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| 265 | 265 | | under Chapter 1101, Estates Code; or |
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| 266 | 266 | | (4) the date the student rescinds the representative's |
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| 267 | 267 | | appointment under Subsection (m). |
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| 268 | 268 | | (m) A student who has not been determined to be incompetent |
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| 269 | 269 | | may rescind at any time, in writing or in the student's most |
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| 270 | 270 | | proficient method of communication, the appointment of an |
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| 271 | 271 | | educational representative for the student under this section. If |
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| 272 | 272 | | the student is unable to rescind the appointment in writing, the |
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| 273 | 273 | | student's admission, review, and dismissal committee shall |
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| 274 | 274 | | document the student's rescission on the student's behalf. If |
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| 275 | 275 | | rescinded, all rights accorded to parents under this subchapter or |
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| 276 | 276 | | 20 U.S.C. Section 1415 transfer to the student. The school district |
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| 277 | 277 | | shall notify the person who submitted the notice regarding the |
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| 278 | 278 | | appointment under Subsection (h) regarding the rescission. |
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| 279 | 279 | | (n) A certification under Subsection (b) that a student is |
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| 280 | 280 | | unable to provide informed consent with respect to the student's |
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| 281 | 281 | | educational program or the appointment of an educational |
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| 282 | 282 | | representative for the student under this section may not be |
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| 283 | 283 | | construed as a finding of the student's incompetence or incapacity |
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| 284 | 284 | | for any other purpose or as relevant or precedential evidence in any |
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| 285 | 285 | | future court or legal action seeking to remove decision-making |
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| 286 | 286 | | authority from the student. |
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| 287 | 287 | | (o) Any documentation relating to the appointment of an |
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| 288 | 288 | | educational representative under this section, including |
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| 289 | 289 | | certification under Subsection (b) or notice regarding the |
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| 290 | 290 | | appointment of an educational representative under Subsection (h), |
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| 291 | 291 | | is confidential and not subject to disclosure under Chapter 552, |
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| 292 | 292 | | Government Code. |
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| 293 | 293 | | (p) Nothing in this section prohibits the appointment of a |
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| 294 | 294 | | guardian under Chapter 1101, Estates Code, for a student for whom an |
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| 295 | 295 | | educational representative has been appointed under this section. |
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| 296 | 296 | | (q) The commissioner shall develop and post on the agency's |
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| 297 | 297 | | Internet website model forms that may be used for a certification |
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| 298 | 298 | | under Subsection (b). |
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| 299 | 299 | | (r) The commissioner shall adopt rules to implement this |
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| 300 | 300 | | section, including rules to ensure compliance with the Family |
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| 301 | 301 | | Educational Rights and Privacy Act of 1974 (20 U.S.C. Section |
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| 302 | 302 | | 1232g). |
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| 303 | 303 | | SECTION 6. Section 29.017(f), Education Code, is repealed. |
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| 304 | 304 | | SECTION 7. This Act takes effect immediately if it receives |
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| 305 | 305 | | a vote of two-thirds of all the members elected to each house, as |
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| 306 | 306 | | provided by Section 39, Article III, Texas Constitution. If this |
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| 307 | 307 | | Act does not receive the vote necessary for immediate effect, this |
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| 308 | 308 | | Act takes effect September 1, 2023. |
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