1-1 By: Cain S.B. No. 1735
1-2 (In the Senate - Filed March 9, 2001; March 14, 2001, read
1-3 first time and referred to Committee on Education; April 9, 2001,
1-4 reported adversely, with favorable Committee Substitute by the
1-5 following vote: Yeas 8, Nays 0; April 9, 2001, sent to printer.)
1-6 COMMITTEE SUBSTITUTE FOR S.B. No. 1735 By: Nelson
1-7 A BILL TO BE ENTITLED
1-8 AN ACT
1-9 relating to special education programs and the educational rights
1-10 of minors with disabilities and other minors whose disabilities are
1-11 removed for general purposes.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Section 29.002, Education Code, is amended to
1-14 read as follows:
1-15 Sec. 29.002. DEFINITION. In this subchapter, "special
1-16 services" means:
1-17 (1) special education instruction, which may be
1-18 provided by professional and supported by paraprofessional
1-19 personnel in the regular classroom or in an instructional
1-20 arrangement described by Section 42.151; and [or]
1-21 (2) related services, which are developmental,
1-22 corrective, supportive, or evaluative services, not instructional
1-23 in nature, that may be required for the student to benefit from
1-24 special education instruction [proper development] and for
1-25 implementation of a student's individualized education program.
1-26 SECTION 2. Section 29.004, Education Code, is amended to
1-27 read as follows:
1-28 Sec. 29.004. FULL INDIVIDUAL AND INITIAL EVALUATION
1-29 [COMPREHENSIVE ASSESSMENT]. A written report of a full individual
1-30 and initial evaluation [comprehensive individual assessment] of a
1-31 student for purposes of special education services shall be
1-32 completed not later than the 60th calendar day following the date
1-33 on which the referral for evaluation [assessment] was initiated by
1-34 school personnel, the student's parent or legal guardian, or
1-35 another appropriate person. The evaluation [assessment] shall be
1-36 conducted using procedures that are appropriate for the student's
1-37 most proficient method of communication.
1-38 SECTION 3. Subsections (a) and (c), Section 29.005,
1-39 Education Code, are amended to read as follows:
1-40 (a) Before a child is enrolled in a special education
1-41 program of a school district, the district shall establish a
1-42 committee composed of the persons required under 20 U.S.C. Section
1-43 1401(11) [1401(20)] to develop the child's individualized education
1-44 program.
1-45 (c) If the individualized education program is not developed
1-46 by agreement, the written statement of the program required under
1-47 20 U.S.C. Section 1401(11) [1401(20)] must include the basis of the
1-48 disagreement.
1-49 SECTION 4. Section 29.006, Education Code, is amended to
1-50 read as follows:
1-51 Sec. 29.006. CONTINUING ADVISORY COMMITTEE. The governor
1-52 shall appoint a continuing advisory committee, composed of 17
1-53 members, under 20 U.S.C. Section 1412(a)(21) [1413(a)(12)]. The
1-54 appointments are not subject to confirmation by the senate.
1-55 Members of the committee are appointed for staggered terms of four
1-56 years with the terms of eight or nine members expiring on February
1-57 1 of each odd-numbered year.
1-58 SECTION 5. Subsection (d), Section 29.012, Education Code,
1-59 is amended to read as follows:
1-60 (d) The Texas Education Agency, the Texas Department of
1-61 Mental Health and Mental Retardation, the Texas Department of Human
1-62 Services, the Texas Department of Health, the Department of
1-63 Protective and Regulatory Services, the Interagency Council on
1-64 Early Childhood Intervention, the Texas Commission on Alcohol and
2-1 Drug Abuse, the Texas Juvenile Probation Commission, and the Texas
2-2 Youth Commission by a cooperative effort shall develop and by rule
2-3 adopt a memorandum of understanding. The memorandum must:
2-4 (1) establish the respective responsibilities of
2-5 school districts and of residential facilities for the provision of
2-6 a free, appropriate public education, as required by the
2-7 Individuals with Disabilities Education Act (20 U.S.C. Section 1400
2-8 et seq.) and its subsequent amendments, including each requirement
2-9 [of 20 U.S.C. Section 1412(a)(12),] for children with disabilities
2-10 who reside in those facilities;
2-11 (2) coordinate regulatory and planning functions of
2-12 the parties to the memorandum;
2-13 (3) establish criteria for determining when a public
2-14 school will [can] provide educational services [and when a
2-15 residential facility must provide the services];
2-16 (4) provide for appropriate educational space when
2-17 education services will be provided at the residential facility [a
2-18 residential facility must provide educational services];
2-19 (5) establish measures designed to ensure the safety
2-20 of students and teachers; and
2-21 (6) provide for binding arbitration consistent with
2-22 Chapter 2009, Government Code, and Section 154.027, Civil Practice
2-23 and Remedies Code.
2-24 SECTION 6. Section 37.004, Education Code, is amended to
2-25 read as follows:
2-26 Sec. 37.004. PLACEMENT OF STUDENTS WITH DISABILITIES.
2-27 (a) The placement of a student with a disability who receives
2-28 special education services may be made only by a duly constituted
2-29 admission, review, and dismissal committee. Disciplinary placement
2-30 of a student with disabilities, for nonemergency reasons, shall
2-31 only occur after a manifestation determination review has been
2-32 conducted.
2-33 (b) All disciplinary actions regarding a student with a
2-34 disability who receives special education services shall be
2-35 determined in accordance with federal law and regulations,
2-36 including the provision of functional behavioral assessments;
2-37 positive behavioral interventions, strategies, and supports;
2-38 behavioral intervention plans; and the manifestation determination
2-39 review.
2-40 (c) A teacher in a disciplinary alternative education
2-41 program who has a special education assignment must hold an
2-42 appropriate certificate or permit for that assignment. [A student
2-43 with a disability who receives special education services may not
2-44 be placed in alternative education programs solely for educational
2-45 purposes if the student does not also meet the criteria for
2-46 alternative placement in Section 37.006(a) or 37.007(a).]
2-47 SECTION 7. Subsection (c), Section 37.019, Education Code,
2-48 is amended to read as follows:
2-49 (c) At the time of an emergency placement or expulsion, the
2-50 student shall be given oral notice of the reason for the action.
2-51 Within a reasonable time after the emergency placement or
2-52 expulsion, the student shall be accorded the appropriate due
2-53 process as required under Section 37.009. If the student subject
2-54 to the emergency placement or expulsion is a student with
2-55 disabilities who receives special education services, the term of
2-56 the student's emergency placement or expulsion is subject to the
2-57 requirements of 20 U.S.C. Section 1415(j) and (k) [1415(e)(3) and
2-58 34 CFR 300.513].
2-59 SECTION 8. Subchapter A, Chapter 29, Education Code, is
2-60 amended by adding Sections 29.016 and 29.017 to read as follows:
2-61 Sec. 29.016. EVALUATION CONDUCTED PURSUANT TO A SPECIAL
2-62 EDUCATION DUE PROCESS HEARING. A special education hearing officer
2-63 in an impartial due process hearing brought under 20 U.S.C. Section
2-64 1415 may issue an order or decision that authorizes one or more
2-65 evaluations of a student who is eligible for, or who is suspected
2-66 as being eligible for, special education services. Such an order
2-67 or decision authorizes the evaluation of the student without
2-68 parental consent as if it were a court order for purposes of any
2-69 state or federal law providing for consent by order of a court.
3-1 Sec. 29.017. TRANSFER OF PARENTAL RIGHTS AT AGE OF MAJORITY.
3-2 (a) A student with a disability who is 18 years of age or older or
3-3 whose disabilities of minority have been removed for general
3-4 purposes under Chapter 31, Family Code, shall have the same right
3-5 to make educational decisions as a student without a disability,
3-6 except that the school district shall provide any notice required
3-7 by this subchapter or 20 U.S.C. Section 1415 to both the student
3-8 and the parents. All other rights accorded to parents under this
3-9 subchapter or 20 U.S.C. Section 1415 transfer to the student.
3-10 (b) All rights accorded to parents under this subchapter or
3-11 20 U.S.C. Section 1415 transfer to students who are incarcerated in
3-12 an adult or juvenile, state or local correctional institution.
3-13 (c) In accordance with 34 C.F.R. Section 300.517, the school
3-14 district shall notify the student and the parents of the transfer
3-15 of rights under this section.
3-16 SECTION 9. Section 31.006, Family Code, is amended to read
3-17 as follows:
3-18 Sec. 31.006. EFFECT OF GENERAL REMOVAL. Except for specific
3-19 constitutional and statutory age requirements, a minor whose
3-20 disabilities are removed for general purposes has the capacity of
3-21 an adult, including the capacity to contract. Except as provided
3-22 by federal law, all educational rights accorded to the parent of a
3-23 student, including the right to make education decisions under
3-24 Section 151.003(a)(10), transfer to the minor whose disabilities
3-25 are removed for general purposes.
3-26 SECTION 10. Section 26.002, Education Code, is amended to
3-27 read as follows:
3-28 Sec. 26.002. DEFINITION. In this chapter, "parent" includes
3-29 a person standing in parental relation. The term does not include
3-30 a person as to whom the parent-child relationship has been
3-31 terminated or a person not entitled to possession of or access to a
3-32 child under a court order. Except as provided by federal law, all
3-33 rights of a parent under Title 2 of this code and all educational
3-34 rights under Section 151.003(a)(10), Family Code, shall be
3-35 exercised by a student who is 18 years of age or older or whose
3-36 disabilities of minority have been removed for general purposes
3-37 under Chapter 31, Family Code, unless the student has been
3-38 determined to be incompetent or the student's rights have been
3-39 otherwise restricted by a court order.
3-40 SECTION 11. Subsection (c), Section 39.030, Education Code,
3-41 is repealed.
3-42 SECTION 12. This Act applies beginning with the 2001-2002
3-43 school year.
3-44 SECTION 13. This Act takes effect immediately if it receives
3-45 a vote of two-thirds of all the members elected to each house, as
3-46 provided by Section 39, Article III, Texas Constitution. If this
3-47 Act does not receive the vote necessary for immediate effect, this
3-48 Act takes effect September 1, 2001.
3-49 * * * * *