87R2036 MM-F
 
  By: González of El Paso H.B. No. 877
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the appointment of an educational representative for
  certain students with disabilities.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  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 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 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, 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, or the appointment of an educational representative
  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 under
  Chapter 1357, Estates Code, and on the appointment of an
  educational representative under Section 29.0171.
         SECTION 2.  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
  school district shall appoint 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 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, or licensed clinical psychologist; and
               (2)  may not:
                     (A)  be an employee of the school district
  currently serving the student; and
                     (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.
         (f)  A reevaluation of a student under 34 C.F.R. Section
  300.303 may be used to request certification for the student under
  Subsection (b).
         (g)  On receiving a written request from a student's parent,
  legal guardian, or spouse or another interested adult to appoint an
  educational representative for the student that is accompanied with
  the certification for the student made under Subsection (b) dated
  not earlier than the 91st day before the date the request is
  submitted, a school district shall:
               (1)  not later than:
                     (A)  the fifth school day following the date the
  district receives the request, notify the student in the manner
  appropriate for the student's most proficient method of
  communication that the district has received the request; and
                     (B)  the 15th school day following the date the
  district receives the request, determine whether the certification
  conforms with Subsection (b); and
               (2)  if the district determines that the certification
  conforms with Subsection (b), appoint one of the following
  individuals in the order listed as the student's educational
  representative:
                     (A)  the student's spouse;
                     (B)  the student's parent or legal guardian; 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.
         (h)  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). 
         (i)  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; and
               (2)  notify the student when the representative has
  provided informed consent or made any educational decisions on the
  student's behalf.
         (j)  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.
         (k)  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 (l).
         (l)  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
  school district serving the student 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 request for the appointment under
  Subsection (g) regarding the rescission.
         (m)  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.
         (n)  Any documentation relating to the appointment of an
  educational representative under this section, including
  certification under Subsection (b) or a request for the appointment
  of an educational representative under Subsection (g), is
  confidential and not subject to disclosure under Chapter 552,
  Government Code.
         (o)  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.
         (p)  The commissioner shall develop and post on the agency's
  Internet website model forms that may be used for a certification
  under Subsection (b) and a request for appointment of an
  educational representative under Subsection (g).
         (q)  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 3.  Section 29.017(f), Education Code, is repealed.
         SECTION 4.  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, 2021.