By: Davis S.B. No. 1871

(In the Senate - Filed March 11, 2011; March 24, 2011, read first time and referred to Committee on Education; May 12, 2011, reported adversely, with favorable Committee Substitute by the following vote: Yeas 5, Nays 3; May 12, 2011, sent to printer.)

COMMITTEE SUBSTITUTE FOR S.B. No. 1871 By: Davis

A BILL TO BE ENTITLED

AN ACT

relating to a contracted services program for certain students with a severe pervasive developmental disorder or a severe intellectual disability.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Chapter 29, Education Code, is amended by adding Subchapter M to read as follows:

SUBCHAPTER M. CONTRACTED SERVICES PROGRAM

Sec. 29.501. DEFINITIONS. In this subchapter:

(1) "Parent" includes a guardian, custodian, or other person with authority to act on behalf of a student.

(2) "Pervasive developmental disorder" includes, as defined by the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders:

(A) autism;

(B) Asperger's syndrome;

(C) Rett's syndrome;

(D) childhood disintegrative disorder; and

(E) a pervasive developmental disorder, not otherwise specified.

(3) "Program" means the contracted services program for eligible students created by this subchapter.

(4) "Qualifying institution":

(A) means a nongovernmental community-based educational and therapeutic establishment that:

(i) provides for the educational and therapeutic needs of students with a severe pervasive developmental disorder or severe intellectual disability;

(ii) qualifies for participation in the program, as provided by Section 29.507; and

(iii) is eligible to receive insurance payments or Medicaid payments made on behalf of an eligible student; and

(B) does not include a school that solely provides education in a home setting or that limits enrollment to relatives of the school's staff.

Sec. 29.502. CONTRACTED SERVICES PROGRAM. (a) An eligible student under Section 29.503 may:

(1) attend any public school in the district in which the student resides;

(2) attend a public school in a district other than the district in which the student resides; or

(3) receive contracted services through a qualifying institution.

(b) Each school year, a school district or open-enrollment charter school shall provide written notice of the program to the parent of a student who is eligible to participate in the program under Section 29.503. Notice under this subsection must:

(1) include information explaining that the Individuals with Disabilities Education Act (20 U.S.C. Section 1400 et seq.) does not apply to a qualifying institution participating in the program and that a student attending a qualifying institution under this subchapter waives any rights under the Act; and

(2) require that the student's parent sign a confirmation of receipt of the notice and return the confirmation to the district.

Sec. 29.503. ELIGIBLE STUDENT. (a) A student is eligible to participate in the program if the student:

(1) has sought public school services under an individualized education plan at the time the parent applies for the program;

(2) is eligible to participate in a school district's special education program under Section 29.003;

(3) has been diagnosed by a medical doctor with:

(A) a severe pervasive developmental disorder; or

(B) a severe intellectual disability; and

(4) requires a limited duration of intense services for the purpose of attaining school readiness skills to participate in a classroom. School readiness skills shall include the following skills:

(A) spontaneous imitation of their peers basic functions;

(B) the ability to sit and attend quietly for at least five minutes in a group setting;

(C) basic communication skills;

(D) basic social skills such as:

(i) sharing; and

(ii) responding to peers;

(E) compliance skills; and

(F) maladaptive behaviors at a rate, frequency, and intensity that does not disrupt the class.

(b) For a student who attends a qualifying institution under this subchapter, the school district in which the student resides, the qualifying institution, and the student's parent shall annually review:

(1) the continued applicability of the student's original diagnosis;

(2) the student's continued eligibility for participation in the program;

(3) the plan for transition of the student to a public school; and

(4) the goals established and assessments administered under Section 29.510.

(c) If the parent and the school district disagree as to whether a student continues to meet the qualifications for an eligible student under Subsection (a), the parent may seek a second diagnosis as established under Subsection (d).

(d) If the parent and the school district disagree as to whether a student meets the requirements for eligibility under Subsection (a)(4), the parent may seek a second diagnosis by a second medical doctor to determine whether the student requires a limited duration of intense services for the purpose of attaining school readiness skills. Not later than the 30th day following the second diagnosis as provided by this subsection, the school district and the parent shall meet to discuss the results of the second diagnosis. The second diagnosis determines whether the student meets the eligibility requirements under Subsection (a)(4). The parent shall be responsible for the costs and effort in obtaining a second diagnosis.

Sec. 29.504. TRANSFER OF STATE AID BETWEEN SCHOOL DISTRICTS. Except as provided by Section 29.505, an eligible student who, as provided by Section 29.502(a)(2), attends a public school in a school district other than the district in which the student resides is included in the average daily attendance of the district in which the student resides for purposes of Chapters 41 and 42.

Sec. 29.505. STATE AID IN CERTAIN CIRCUMSTANCES. An eligible student who, as provided by Section 29.502(a)(2), attends a public school in a school district other than the district in which the student resides is counted in the average daily attendance of the school district in which the student attends school if the total amount of state aid that the enrolling district would receive by counting the student in the district's average daily attendance is greater than the amount of state aid the district would receive as a result of receiving a transfer of funds from the district in which the student resides under Section 29.504.

Sec. 29.506. FINANCING OF SERVICES PROVIDED BY QUALIFYING INSTITUTION. (a) Except as provided by Subsection (b), for a student who attends a qualifying institution under this subchapter, the qualifying institution is entitled to an annual amount of funding that is equal to the amount the institution would receive for a student if the institution were an open-enrollment charter school, as calculated under Sections 12.106(a)(2) and (a-1), multiplied by 1.1.

(b) The commissioner may withhold a portion of the funding to which a qualifying institution is entitled under Subsection (a) to pay the costs of administering the program.

(c) A student's program funding under this section may not be financed by:

(1) money appropriated from the available school fund; or

(2) federal funds.

(d) The agency shall directly distribute funding to the qualifying institution on a monthly basis. The agency may not distribute funding to the qualifying institution the student attends until after services have been provided.

(e) The agency shall require that the qualifying institution submit documentation of the student's attendance before the agency distributes funding to the qualifying institution. The qualifying institution shall submit the documentation to the agency on a monthly basis, and the agency shall distribute funding to the qualifying institution not later than the 30th day after the date of receiving the documentation.

(f) A qualifying institution may not share a student's program funding with or refund or rebate a student's program funding to the parent, the student, or a nonqualifying institution in any manner.

Sec. 29.507. PARTICIPATION BY QUALIFYING INSTITUTIONS. (a) To participate in the program, a qualifying institution:

(1) must:

(A) comply with all health and safety laws applicable to nongovernmental schools;

(B) hold a valid occupancy permit if required by the municipality in which the institution is located;

(C) employ a health care practitioner described by Section 1355.015(b), Insurance Code; and

(D) comply with all state laws regarding criminal background checks for employees and may not employ a person who is not authorized under state law to work in a public school district or open-enrollment charter school; qualifying institutions shall follow and have access to the same procedures and information as established by Section 22.083; and

(2) may not advocate or foster unlawful behavior or teach hatred of any person or group on the basis of race, ethnicity, national origin, or religion.

(b) Qualifying institutions shall be determined through a request for qualification process established by the agency, in collaboration with the Department of Assistive and Rehabilitative Services, and subject to public comment as to the criteria and standards to be used to establish qualification. The agency and the Department of Assistive and Rehabilitative Services shall have equal input in the request for qualification process and selection of qualifying institutions.

(c) The request for qualification process established under Subsection (b) may include provisions considering whether an institution:

(1) is accredited by an accrediting association recognized by the commissioner to accredit nongovernmental schools in this state;

(2) has filed an application for accreditation by an accrediting association described by Subdivision (1) that has not been withdrawn, denied, or left pending for more than 18 months; or

(3) has previously provided contracted services for individuals with pervasive developmental disorders or intellectual disabilities for the Department of Assistive and Rehabilitative Services.

(d) A nongovernmental community-based educational establishment that provides for the educational needs of students with severe pervasive developmental disorders or severe intellectual disabilities may apply to the agency to participate in the program as a qualifying institution. The agency, in consultation with the Department of Assistive and Rehabilitative Services, shall create and maintain a list of participating qualifying institutions and ensure that the list is available to the public.

(e) A sectarian institution may not be a qualifying institution under this subchapter.

Sec. 29.508. APPLICATION FOR CONTRACTED SERVICES THROUGH PROGRAM. (a) For an eligible student to participate in the program and receive contracted services through a qualifying institution, the parent of the student must apply to the agency on behalf of the student. The application must specify the qualifying institution the student plans to attend and demonstrate that the student has been accepted for admission by that institution.

(b) On receiving the application from the parent of an eligible student, the agency shall verify a student's eligibility. If the agency verifies that the student is eligible for participation in the program, the agency shall notify the student's parent of the student's eligibility.

(c) A verification of student eligibility by the agency under Subsection (b) is for review purposes only and does not preempt the decision made at the local level on whether a student qualifies for contracted services under the program.

(d) A parent may apply on behalf of the student to participate in the program at any time.

Sec. 29.509. ADMISSIONS. (a) In order to receive funding under Section 29.506, a qualifying institution may not deny admission by discriminating on the basis of the student's race, ethnicity, religion, creed, or national origin and must comply with the requirements of:

(1) Title VI, Civil Rights Act of 1964 (42 U.S.C. Section 2000d et seq.) with respect to discrimination on the basis of race, color, or national origin; and

(2) Section 504, Rehabilitation Act of 1973 (29 U.S.C. Section 794), with respect to nondiscrimination on the basis of disability.

(b) A qualifying institution or a school district or campus that has more qualified program applicants for attendance under this subchapter than available positions must fill the available program positions in the order the institution, district, or campus receives the applications. In considering whether the school district, public school, or qualifying institution has more qualified applicants than availability for qualified applicants, the entity may consider staff needs, financial resources, and facility space.

(c) A qualifying institution or public school in another district may refuse an eligible student if it determines that admittance would require additional staff, financial resources, or facility space.

(d) A qualifying institution may submit a written request for student records from the school district or open-enrollment charter school previously attended by an eligible student, if applicable. Not later than the 10th working day after the date the district or school receives the request, the district or school shall deliver to the qualifying institution a copy of the school's complete student records for that student, including attendance records, disciplinary records, results of any assessment instruments administered to the student, the student's individualized educational program, and any other comprehensive assessments from each school the student previously attended. A district or school that is required to release student records under this subsection shall comply with any applicable provision of the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g).

Sec. 29.510. ACADEMIC ACCOUNTABILITY. (a) A qualifying institution, in collaboration with the school district in which the student resides, shall establish academic and functional goals for each eligible student receiving contracted services from the institution. The goals must be developed in a manner similar to an individualized educational program developed under Section 29.005. Each school year, a qualifying institution shall review and revise the goals developed for the student under this subsection. At regular intervals not less than three times each academic year, the qualifying institution shall provide a report to the student's parent describing the student's progress toward achieving the goals developed for the student under this subsection.

(b) Each spring semester, a qualifying institution that provides contracted services to a student under this subchapter shall assess the student's progress. Under an agreement with the agency, the qualifying institution shall administer the appropriate assessment instrument adopted under Subchapter B, Chapter 39.

(c) The qualifying institution shall provide:

(1) the student's results on assessment instruments administered under Subsection (b) to the student's parent; and

(2) the aggregated results of assessment instruments administered under Subsection (b) to the public, subject to the applicable provisions of the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g).

Sec. 29.511. FINANCIAL SOLVENCY. The commissioner may adopt rules requiring a qualifying institution that accepts funding under this subchapter to demonstrate financial solvency.

Sec. 29.512. QUALIFYING INSTITUTION AUTONOMY. (a) A qualifying institution that accepts funding under this subchapter is not an agent or arm of the state or federal government.

(b) Except as provided by this subchapter, the commissioner, the agency, the State Board of Education, or any other state agency may not regulate the educational program of a qualifying institution that accepts funding under this subchapter.

(c) A qualifying institution that accepts funding under this subchapter is not required to implement an individualized educational program developed for the student under Section 29.005. The eligible student's parent and the qualifying institution shall determine the services and educational program to be provided to the eligible student.

Sec. 29.513. RIGHTS AND RESPONSIBILITIES OF PARENTS AND STUDENTS. (a) It is the responsibility of the parent of an eligible student to:

(1) locate and select a qualifying institution;

(2) apply for admission to the qualifying institution; and

(3) apply in the manner provided under Section 29.508 for participation in the program.

(b) A student participating in the program must attend the qualifying institution each school day unless the student is excused by the school for illness or other good cause, as determined by the institution.

(c) Participation in the program does not create a property right for either the parents or the participating qualifying institution.

Sec. 29.514. TRANSFER. (a) An eligible student participating in the program may transfer to a public school or another qualifying institution in the manner authorized by commissioner rule. If a student transfers to another school or qualifying institution under this section after the beginning of the school year, the commissioner shall prorate the amount of the student's program funding between the qualifying institutions or the qualifying institution and the school district, as applicable, according to the length of the student's attendance at each entity.

(b) The commissioner may adopt rules regarding the frequency with which a parent may transfer an eligible student from a qualifying institution to another qualifying institution.

(c) The commissioner may not adopt rules restricting the frequency with which a parent may transfer an eligible student from a qualifying institution to a public school.

Sec. 29.515. RULES. The commissioner shall adopt rules as necessary to implement, administer, and enforce the program, including rules regarding:

(1) the calculation and distribution of payments for qualifying institutions;

(2) application and approval procedures for qualifying institutions and student participation in the program, including timelines for the application and approval procedures; and

(3) student transfers under Section 29.514.

Sec. 29.516. PROGRAM COMPLIANCE. (a) The agency may withhold funding from any district or qualifying institution that violates this subchapter or a rule adopted under this subchapter. Agency decisions are final and may not be appealed.

(b) The commissioner may revoke a qualifying institution's permission to participate in the program if the commissioner determines that the institution:

(1) has not met the requirements provided by this subchapter;

(2) has wilfully misrepresented information required by this subchapter; or

(3) has failed to refund to the state in a timely manner any overpayment of program funding made to the institution.

(c) If the commissioner revokes a qualifying institution's permission to participate in the program under Subsection (b), the agency shall immediately notify the public through the agency's Internet website of the revocation.

Sec. 29.517. LIABILITY. The agency is not civilly liable for any action arising as the result of a student's participation in the program.

Sec. 29.518. EVALUATION OF PROGRAM. (a) The commissioner shall designate, subject to available financial resources, an impartial organization with experience in evaluating programs similar to the program established under this subchapter to conduct an annual evaluation of the program.

(b) An evaluation under this section must compare differences between qualifying institutions and public schools and may include consideration of:

(1) student satisfaction;

(2) parent satisfaction;

(3) behavioral problems of program students attending qualifying institutions as compared with students attending public schools;

(4) class size;

(5) the fiscal impact to the state and school districts;

(6) academic performance by comparable students as measured by an assessment under Section 29.510(b);

(7) factors resulting in more than 25 percent of eligible students in a school district attending a qualifying institution or public school in another district under this subchapter; and

(8) the practices of a qualifying institution that contribute to a change in student behavior or academic performance.

(c) The evaluation must apply appropriate analytical and behavioral science methodologies to ensure public confidence in the evaluation.

(d) Not later than December 1, 2014, the commissioner shall submit to each member of the legislature a copy of an evaluation conducted under this section.

(e) Subject to any other federal or state law, including an applicable provision of the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g), school districts, open-enrollment charter schools, and qualifying institutions shall provide to the organization conducting an evaluation student assessment instrument results and any other information necessary to complete the evaluation.

(f) The agency may accept grants to assist in funding the evaluation.

Sec. 29.519. APPLICATION OF SUNSET ACT. (a) The contracted services program is subject to Chapter 325, Government Code (Texas Sunset Act), as if the program were a state agency. Unless continued in existence as provided by that chapter, the program is abolished and this subchapter expires September 1, 2017.

(b) To the extent Chapter 325, Government Code (Texas Sunset Act), imposes a duty on a state agency under review, the agency shall perform that duty as it relates to the program, subject to available financial resources.

SECTION 2. (a) The Texas Education Agency shall make the contracted services program under Subchapter M, Chapter 29, Education Code, as added by this Act, available for participation beginning with the 2012-2013 academic school year.

(b) As soon as practicable, the commissioner of education shall adopt and implement rules necessary for the administration of the contracted services program.

SECTION 3. This Act takes effect September 1, 2011.

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