SB 58

89R929 AMF-F
		By: Zaffirini
  S.B. No. 58
  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.