bill creating educational representatives for adult special education students

The text as introduced · 2,383 words

89R929 AMF-F

By: González of El Paso
H.B. No. 466

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 under Section 29.0171 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 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; or

(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, 2025.