New Hampshire lawmakers and State Board of Education members approved final rules for the state’s “education freedom account” program Friday, overriding legal concerns from attorneys and Democrats.
Voting 6-3, the Joint Legislative Committee on Administrative Rules approved the final rules Friday morning. In an emergency meeting Friday afternoon, the State Board of Education approved the rules as well.
The final rules replace the interim rules put in place last year for the program, which began in September, and allow the program to move forward.
Passed as part of the state’s budget in June, New Hampshire’s education freedom account program allows parents to access the annual per-pupil state education funding for their child and use it toward private school and home-schooling expenses, including tuition and materials. The program is carried out by a nonprofit scholarship organization under a contract with the state; The new rules dictate how that scholarship organization must hold and administer the funds for families, what the money may be used for, and how the education providers must be vetted and approved.
But nonpartisan lawyers for the House and Senate rules committee have highlighted a number of provisions in the new rules that they said needed clarification or amendment.
One concern revolved around background checks of teachers in programs potentially approved under the EFA program. The rules state that the scholarship organization must publish the procedures they use to approve education service providers for students, and include “procedures, if any, used by education service providers to ensure background checks of employees who have direct contact with students.”
JLCAR’s attorneys argue that the underlying statute that created the EFA program does not allow the scholarship organization to require background checks for the criminal programs it provides, meaning the approval procedure might not be helpful.
Another area of the new rules states that “the scholarship organization shall have access to confidential student information” in order to help approve expenses for those students. That information can include medical and educational records.
The JLCAR attorneys noted that the rules indicate that the Health Insurance Portability and Accountability Act (HIPAA) and Family Educational Rights and Privacy Act (FERPA) would not apply to the scholarship organization. But they said the rules left open whether those laws would apply to public school districts that might be asked to hand over the data.
Democrats raised further concerns at the committee meeting Friday. Sen. Becky Whitley, a Hopkinton Democrat, argued that the rules should include a provision stipulating that the public funds cannot be used for programs that carry out “religious instruction,” which is unconstitutional.
“I don’t understand the objects to actually putting that in the rules, to provide clear guidance to our taxpayers, to provide clear guidance to the organizations that are receiving this money, that this is not permissible,” she said. “You know, this money is going to religious schools. How do I know, as a taxpayer, that they’re not going to use that money for religious instruction?”
And Democrats took issue with the underlying statute that created the new spending accounts, which details a number of valid areas in which parents may use the new funds – from tuition to computer hardware to school uniforms – but includes a provision allowing “any other educational expense” approved by the scholarship organization.”
Whitley described that provision as a “catch all” and advocated for adding an amendment to the rules to clarify it.
Officials at the Department of Education pushed back at some of the suggestions Friday – both from Democrats and the JLCAR attorneys.
In a letter to JLCAR attorney committee Michael Morrell, Amanda Phelps, the Department of Education’s administrative rules coordinator, also noted that HIPAA does not apply to school districts and that FERPA protections apply only to education providers that accept federal funds.
Responding to the concerns in person Friday, Education Commissioner Frank Edelblut said that the catch-all provision was included by the Legislature and that the Department of Education and the scholarship organizations would exercise discretion to make sure that the expenses were lawful – and publish a list of expenses made.
And Edelblut rejected the notion that the rules should stipulate the prohibition on using the funding for religious instruction, arguing it would confuse parents who might not understand the difference between programs that include religious instruction, which are not valid, and religious schools that provide nondenominational teaching , which are.
The better approach, Edelblut argued, is to list the valid uses of the funding, and not attempt to provide an exhaustive list of what isn’t valid.
“We are very clear in terms of what’s numerated in terms of what’s legal, and religious instruction is prohibited as prohibited by the Constitution,” he said.