By: Simmons H.B. No. 1335

A BILL TO BE ENTITLED

AN ACT

relating to the establishment of an education savings account program for certain children with special needs and other educational disadvantages.

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

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

SUBCHAPTER J. EDUCATION SAVINGS ACCOUNT PROGRAM

Sec. 29.351. DEFINITIONS. In this subchapter:

(1) "Account" means an education savings account established under the program.

(2) "Child with a disability" means a child who is:

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

(B) covered by Section 504, Rehabilitation Act of 1973 (29 U.S.C. Section 794).

(3) "Curriculum" means a complete course of study for a particular content area or grade level.

(4) "Financial institution" means a bank, credit union, savings bank, or savings and loan association organized under the laws of this state, the laws of another state, or federal law that has its main office or a branch office in this state. The term does not include any institution the deposits of which are not insured by the Federal Deposit Insurance Corporation or the National Credit Union Administration.

(5) "Parent" means a resident of this state who is a natural or adoptive parent, managing or possessory conservator, legal guardian, custodian, or other person with legal authority to act on behalf of a child.

(6) "Postsecondary educational institution" means:

(A) an institution of higher education or a private or independent institution of higher education as defined by Section 61.003; or

(B) a career school or college as defined by Section 132.001.

(7) "Program" means the education savings account program established under this subchapter.

(8) "Program participant" means a child and a parent of a child enrolled in the program.

Sec. 29.352. PURPOSES. The purposes of the education savings account program are to:

(1) improve public schools and overall academic performance;

(2) promote efficiency;

(3) promote and preserve the liberties and rights of the people; and

(4) increase parental options.

Sec. 29.353. ESTABLISHMENT OF PROGRAM. (a) The comptroller shall establish and administer an education savings account program to provide funding for certain education-related expenses of eligible children.

(b) The comptroller, with cooperation from the agency, shall ensure that information about the program is readily available to the public through various sources, including the comptroller's Internet website. The comptroller shall make information about the program available to parents of an eligible child through the comptroller's Internet website.

Sec. 29.354. ELIGIBLE CHILD. (a) A child is eligible to participate in the program if the child is eligible to attend a public school under Section 25.001 and:

(1) is a child with a disability;

(2) is in the conservatorship of the Department of Family and Protective Services;

(3) has been:

(A) on or after September 1, 2017, found by a school district to be a victim of bullying, as defined by Section 37.0832; or

(B) found by a court or jury to have engaged in truant conduct under Section 65.101, Family Code;

(4) has dropped out of school or is a student at risk of dropping out of school, as defined by Section 29.081, other than a student described by Section 29.081(d)(12);

(5) is a homeless child or youth as described by 42 U.S.C. Section 11434a; or

(6) has been, as determined by the comptroller, a victim of an offense described by any of the following sections of the Penal Code:

(A) Section 20A.02 (Trafficking of Persons);

(B) Section 20A.03 (Continuous Trafficking of Persons);

(C) Section 21.02 (Continuous Sexual Abuse of Young Child or Children);

(D) Section 21.11 (Indecency with a Child);

(E) Section 22.011 (Sexual Assault);

(F) Section 22.021 (Aggravated Sexual Assault); or

(G) Section 43.05 (Compelling Prostitution).

(b) A child who establishes eligibility under this section may participate in the program until the earliest of the following dates:

(1) the date on which the child no longer meets the eligibility requirements under Subsection (a);

(2) the date that is three months after the date on which the child either:

(i) graduates from high school; or,

(ii) receives a high school equivalency certificate under Education Code Section 7.111;

(3) the date on which the child enrolls in a public school, including an open-enrollment charter school; or

(4) the date on which the child is declared ineligible for the program by the comptroller under this subchapter.

(c) Notwithstanding Subsection (b), the comptroller shall establish guidelines for, in the least disruptive manner possible:

(1) a child participating in the program to cease participation and enroll in a public school, including an open-enrollment charter school; and

(2) a child who previously participated in the program and subsequently enrolled in a public school, including an open-enrollment charter school, to resume participation in the program.

Sec. 29.355. ENROLLMENT IN PROGRAM. (a) A parent of an eligible child may enroll the child in the program for the following school year.

(b) The comptroller shall by rule create an enrollment form for the program and make the enrollment form readily available to interested parents through various sources, including the comptroller's Internet website.

(c) The comptroller shall work with the agency to include necessary information in the enrollment form including resident school district, last public school attended, information necessary to identify the student in district and agency information systems, and eligibility for free and reduced lunch.

(d) The comptroller shall provide to each parent who submits an enrollment form a publication that describes the operation of the program, including:

(1) expenses allowed under the program under Section 29.357;

(2) expense reporting requirements; and

(3) a description of the responsibilities of program participants and the duties of the comptroller under this subchapter.

Sec. 29.356. PARTICIPATION IN PROGRAM. (a) To receive funding under the program, a parent of an eligible child must agree to:

(1) spend funds received through the program only for expenses allowed under Section 29.357;

(2) notify the comptroller if the child enrolls in a public school, including an open-enrollment charter school, not later than the 30th day after the date of enrollment; and

(3) inform the comptroller if the child graduates from high school.

(b) The parent of a child participating in the program is the trustee of the child's account.

(c) The comptroller shall provide annually to each program participant the publication provided under Section 29.355(c).

Sec. 29.357. APPROVED EDUCATION-RELATED EXPENSES. (a) Funds received under the program may be used only for the following expenses incurred by a program participant:

(1) tuition and fees:

(A) at a private school accredited by an organization that is recognized by the Texas Private School Accreditation Commission;

(B) at a postsecondary educational institution for courses eligible for the College Credit Program at Education Code Sec. 28.009 for which the student may receive high school credit based on the written agreement drawn up by the partner institutions; or

(C) for an online educational course or program through the State Virtual School Network as provided at Education Code Chapter 30A for which the student may earn primary or secondary school credit;

(2) the purchase of textbooks or other instructional materials;

(3) payments for the purchase of a curriculum;

(4) fees for classes or other educational services provided by a public school, if the classes or services do not qualify the child to be included in the school's average daily attendance;

(5) fees for services provided by a private tutor or teaching service;

(6) for a child with a disability, fees for educational therapies or services provided by a practitioner or provider, only for fees that are not covered by any federal, state, or local government benefits (including Medicaid and the Children's Health Insurance Program) or by any private insurance that the child is enrolled in at the time of receiving the therapies or services;

(7) costs of computer hardware and software and other technological devices which must have a clear ability to be used for educational purposes, not to exceed in any year 10 percent of the total amount paid to the program participant's account that year;

(8) fees for a nationally norm-referenced achievement test or examination, an assessment instrument adopted by the agency under Section 39.023, an advanced placement test or similar examination, or any examination related to college or university admission;

(9) contributions to a qualified tuition program established for the child that meets the requirements of Section 529 or 530, Internal Revenue Code of 1986, not to exceed in any year 25 percent of the total amount paid to the program participant's account that year; and

(10) fees for the management of the participant's account charged by a financial institution.

(b) Expenses allowed under Subsection (a) do not include expenses for:

(1) consumable supplies, including paper, pens, pencils, folders, and notebooks;

(2) food; or

(3) before-school or after-school child care and child care during school holidays and vacations.

(c) An education service provider or vendor of educational products must provide a program participant with a receipt for each expense allowed under Subsection (a) charged by the provider or vendor to the participant.

(d) The content or religious nature of a product or service may not be considered in determining whether a payment for the product or service is an expense allowed under Subsection (a).

(e) A finding that a program participant used funds distributed under the program to pay for an expense not allowed under Subsection (a) does not affect the validity of any payment made by the participant for an expense that is allowed under that subsection.

Sec. 29.358. AMOUNT OF PAYMENT; FINANCING. (a) A parent of an eligible child as described in Section 29.354 shall receive each year that the child participates in the program a payment from the Foundation School Program to the child's account in an amount that is equal to 90 percent of the greater of, presuming 100% attendance rate:

(1) Funding the students would have generated in both state and local funds at their resident district excluding Subchapter C, Chapter 42 except for Sections 42.151, 42.152 and 42.160 which shall be based on funding factors for which the student qualified from the most recent year in attendance at a public school unless enrollment in the program under this subchapter indicates a change in eligibility status for those funding sections; or

(2) Funding the student would have generated in both state and local funds at their resident district excluding Subchapter C, Chapter 42 except for Sections 42.151, 42.152 and 42.160 which shall be based on the average at the resident district of each special allotment under Sections 42.151 and 42.152, for which the student's enrollment in the program under this subchapter indicates eligibility.

(b) If the child is eligible to participate based on more than one group listed in Section 29.354(a), the payment under this subsection is based on the group that would result in the greatest payment amount.

(c) Any funds remaining in a child's account at the end of a fiscal year are carried forward to the next fiscal year unless another provision of this subchapter mandates the closure of the account.

(d) The parent of a child participating in the program may make payments for the expenses of educational programs, services, and products not covered by funds in the child's account.

(e) A payment under the program may not be financed using federal funds or money appropriated from the available school fund.

Sec. 29.359. ADMINISTRATION OF ACCOUNTS. (a) The comptroller may contract with one or more financial institutions to establish and manage an account for each child participating in the program. A program participant must be able to access the participant's account by using a debit card or online or electronic transfer payment service.

(b) The comptroller shall make quarterly payments to each program participant's account in equal amounts on or before the 15th day of August, November, February, and May.

(c) The comptroller may deduct an amount from each quarterly payment to a program participant's account to cover the comptroller's cost of administering the program. The amount deducted may not exceed three percent of the payment.

(d) Within the first month following the end of each fiscal year, the comptroller shall reconcile payments made to and from all accounts under the program.

(e) The comptroller shall coordinate as necessary to calculate annually the savings to the state from the implementation of the program.

(f) On the date on which a child ceases to participate in the program for any reason, the child's account is closed and any remaining funds are returned to the state for deposit in the foundation school fund. This subsection does not affect a child's eligibility to resume participation in the program.

(g) The comptroller may contract with a private entity to administer all or any part of the program.

Sec. 29.360. RANDOM AUDITING OF ACCOUNTS. (a) The comptroller shall randomly audit, or contract with a private entity to randomly audit, accounts as necessary to ensure compliance with applicable law and the requirements of the program.

(b) In auditing an account, the comptroller or private entity may require that a program participant provide further information and documentation regarding any payment from the participant's account.

(c) The private entity shall report to the comptroller any violation of this subchapter or other relevant law found by the entity during an audit conducted under this section.

Sec. 29.361. SUSPENSION OF ACCOUNT. (a) The comptroller shall suspend the account of a program participant who fails to comply with applicable law or a requirement of the program, including a requirement under Section 29.356(a), or who substantially misuses funds received under the program.

(b) On suspension of an account under Subsection (a), the comptroller shall notify the participant in writing that the account has been suspended and that no further payments may be made from the account. The notification must specify the grounds for the suspension and state that the participant has 10 business days to respond and take any corrective action required by the comptroller.

(c) On the expiration of the 10-day period under Subsection (b), the comptroller shall:

(1) order permanent closure of the suspended account and declare the participant ineligible for the program;

(2) order temporary reinstatement of the account, conditioned on the performance of a specified action by the participant; or

(3) order full reinstatement of the account.

(d) If a program participant's account is suspended or closed under this section, the comptroller may recover funds that were used for expenses not allowed under Section 29.357(a) from the participant or the entity that received the funds.

Sec. 29.362. TUITION AND FEES; REFUND PROHIBITED. (a) An education service provider may not charge a child participating in the program an amount greater than the standard amount charged for that service by the provider.

(b) An education service provider or a vendor of educational products receiving funds distributed under the program may not in any manner rebate, refund, or credit to or share with a program participant, or any person on behalf of a participant, any program funds paid or owed by the participant to the provider or vendor.

Sec. 29.363. REFERRAL TO ATTORNEY GENERAL. (a) If the comptroller obtains evidence of fraudulent use of an account, the comptroller may refer the case to the attorney general for investigation.

(b) With the consent of the appropriate local county or district attorney, the attorney general has concurrent jurisdiction with the consenting local prosecutor to prosecute an offense referred to the attorney general under Subsection (a).

Sec. 29.364. PROVIDER ACCOUNTABILITY. (a) A private school must be accredited by an organization that is recognized by the Texas Private School Accreditation Commission to receive funds distributed under the program.

(b) A private tutor or teaching service and a practitioner or provider who provides educational therapies or services for a child with a disability must be licensed or accredited by a regional or national accrediting organization to receive funds distributed under the program.

Sec. 29.365. PROGRAM PARTICIPANT, PROVIDER, AND VENDOR AUTONOMY. (a) An education service provider or vendor of educational products that receives funds distributed under the program is not an agent of the state or federal government.

(b) Except as provided by this subchapter, the comptroller, the agency, the State Board of Education, any other state agency, or any school district may not:

(1) regulate the educational program of an education service provider or vendor of educational products that receives funds distributed under the program; or

(2) exercise control or supervision over a program participant or an education service provider or vendor of educational products that receives funds distributed under the program.

(c) The program does not expand the regulatory authority of the state or any school district to impose any additional regulation on an education service provider or vendor of educational products except those reasonably necessary to enforce the program as provided by this subchapter.

(d) A private school may not be required to modify the school's creed, practices, admissions policies, curriculum, performance standards, or assessments to receive funds distributed under the program.

(e) A private school voluntarily selected by a parent for the parent's child to attend or a parent who homeschools the parent's child, with or without governmental assistance, may not be required to comply with any state law or rule governing the applicable educational program that was not in effect on January 1, 2017.

(f) In any proceeding challenging a rule adopted by a state agency or officer under this subchapter, the agency or officer has the burden of proof to establish that the rule:

(1) is necessary to implement or enforce the program as provided by this subchapter; and

(2) does not impose an undue burden on a program participant or an education service provider or vendor of educational products that receives or seeks to receive funds distributed under the program.

Sec. 29.366. STUDENT RECORDS. On request by the parent of a child participating in the program, the school district or open-enrollment charter school that the child would otherwise attend shall provide a copy of the child's school records possessed by the district or school, if any, to the child's parent or, if applicable, the private school the child attends.

Sec. 29.367. REPORTING NUMBER OF PARTICIPANTS. (a) Not later than October 1 of each year, the comptroller shall notify the commissioner and the Legislative Budget Board of the number of eligible children likely to participate in the program, disaggregated by the school district or open-enrollment charter school the eligible children would otherwise attend.

(b) Not later than March 1 of each year, the comptroller shall provide final information to the commissioner and the Legislative Budget Board regarding the number of children participating in the program, disaggregated in the same manner as the initial information under Subsection (a).

Sec. 29.368. ANNUAL SURVEY. The comptroller may conduct an annual parental satisfaction survey that asks each parent of a child participating in the program to express:

(1) the parent's overall level of satisfaction with the program; and

(2) the parent's opinion on specified topics and issues relevant to the effectiveness of the program.

Sec. 29.369. GIFTS, GRANTS, AND DONATIONS. The comptroller may solicit and accept gifts, grants, and donations from any public or private source for any expenses related to the initial implementation or administration of the program.

Sec. 29.370. AGENCY COLLECTION OF CERTAIN INFORMATION. (a) The agency shall collect and maintain for each group described by Section 29.354(a) information regarding:

(1) the number of students in that group enrolled at a school district; and

(2) the statewide average school district entitlement amount under Chapter 42 for a student in that group.

(b) The agency shall make available to the comptroller the information collected and maintained under Subsection (a).

(c) The agency may collaborate with any relevant state agency or other entity in carrying out the agency's duties under this section.

(d) The commissioner may adopt rules as necessary to implement this section.

Sec. 29.371. RULES. The comptroller shall adopt rules as necessary to implement this subchapter, including:

(1) rules regarding expense reporting requirements for program participants; and

(2) rules for implementing this subchapter in a manner that ensures compliance with federal law regarding confidentiality of student educational information, including the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g).

SECTION 2. Section 42.253, Education Code, is amended by adding Subsection (b-1) to read as follows:

(b-1) Notwithstanding Subsection (b), the commissioner shall adjust enrollment estimates and entitlement for each school district for each school year based on information provided by the comptroller under Section 29.367. This subsection expires September 1, 2020.

SECTION 3. Section 58.106(a), Family Code, is amended to read as follows:

(a) Except as otherwise provided by this section, information contained in the juvenile justice information system is confidential information for the use of the department and may not be disseminated by the department except:

(1) with the permission of the juvenile offender, to military personnel of this state or the United States;

(2) to a criminal justice agency as defined by Section 411.082, Government Code;

(3) to a noncriminal justice agency authorized by federal statute or federal executive order to receive juvenile justice record information;

(4) to a juvenile justice agency;

(5) to the Texas Juvenile Justice Department;

(6) to the office of independent ombudsman of the Texas Juvenile Justice Department;

(7) to a district, county, justice, or municipal court exercising jurisdiction over a juvenile; [and]

(8) to the Department of Family and Protective Services as provided by Section 411.114, Government Code; and

(9) to the comptroller for the purpose of determining a child's eligibility to participate in the education savings account program under Subchapter J, Chapter 29, Education Code.

SECTION 4. Section 58.204(b), Family Code, is amended to read as follows:

(b) On certification of records in a case under Section 58.203, the department may permit access to the information in the juvenile justice information system relating to the case of an individual only:

(1) by a criminal justice agency for a criminal justice purpose, as those terms are defined by Section 411.082, Government Code;

(2) for research purposes, by the Texas Juvenile Justice Department;

(3) by the person who is the subject of the records on an order from the juvenile court granting the petition filed by or on behalf of the person who is the subject of the records;

(4) with the permission of the juvenile court at the request of the person who is the subject of the records;

(5) with the permission of the juvenile court, by a party to a civil suit if the person who is the subject of the records has put facts relating to the person's records at issue in the suit; [or]

(6) with the written permission of the individual, by military personnel, including a recruiter, of this state or the United States if the individual is an applicant for enlistment in the armed forces; or

(7) by the comptroller for the purpose of determining the individual's eligibility to participate in the education savings account program under Subchapter J, Chapter 29, Education Code.

SECTION 5. Section 65.202, Family Code, is amended to read as follows:

Sec. 65.202. CONFIDENTIALITY OF RECORDS. Records and files created under this chapter may be disclosed only to:

(1) the judge of the truancy court, the truant conduct prosecutor, and the staff of the judge and prosecutor;

(2) the child or an attorney for the child;

(3) a governmental agency if the disclosure is required or authorized by law;

(4) a person or entity to whom the child is referred for treatment or services if the agency or institution disclosing the information has entered into a written confidentiality agreement with the person or entity regarding the protection of the disclosed information;

(5) the Texas Department of Criminal Justice and the Texas Juvenile Justice Department for the purpose of maintaining statistical records of recidivism and for diagnosis and classification;

(6) the agency; [or]

(7) the comptroller for the purpose of determining a child's eligibility to participate in the education savings account program under Subchapter J, Chapter 29, Education Code; or

(8) with leave of the truancy court, any other person, agency, or institution having a legitimate interest in the proceeding or in the work of the court.

SECTION 6. Section 411.109, Government Code, is amended by adding Subsection (c) to read as follows:

(c) The comptroller is entitled to obtain from the department criminal history record information maintained by the department that relates to a child for the purpose of determining the child's eligibility to participate in the education savings account program under Subchapter J, Chapter 29, Education Code.

SECTION 7. This Act applies beginning with the 2017-2018 school year.

SECTION 8. Not later than 45 days after the effective date of this Act, the comptroller of public accounts shall adopt rules necessary to implement the education savings account program under Subchapter J, Chapter 29, Education Code, as added by this Act.

SECTION 9. 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, 2017.