Written by Gary Rayno, InDepthNH.org
CONCORD – The final rules for the state’s new “Freedom Education Account,” also known as vouchers, were adopted by the state Board of Education Thursday.
The council approved the rules, which must be brought before the Joint Legislative Administrative Rules Committee, despite concerns raised about the qualification of students with disabilities and one department that might require school districts to pay state-mandated costs without funding, which would be unconstitutional.
The rules were amended to address a long list of concerns raised by attorneys at the Office of Legislative Services when the rules were first presented to the legislative committee last summer.
Legislative Services attorneys suggested that the department and legislators consider changes to the statute to correct ambiguities, potential conflicts with existing statutes and federal law, improper delegation of authority to the scholarship organization and a lack of oversight, as well as provisions clarifying inconsistencies between statute and federal law. Rules.
In a letter to Legislative Services, Amanda Phelps, the Administrative Rules Coordinator at the Department of Education, addressed some of the changes that legislative services attorneys have sought, but not made, largely due to conflicting law or requirements.
The department has addressed issues raised about confidential information and has informed parents of students with special needs that joining the program will terminate the school district’s obligation to provide special education services for their children.
The rule changes addressed one major issue raised in the public hearings but did not solve the problem.
The concern is allowing physicians anywhere in the country to appoint a student with a disability which leads to the need for additional services and the provision of additional funds for the student’s parents to use in his education.
One rule change defines who qualifies as a student with a disability status as “a child with autism, deaf-blindness, deafness, developmental delay, emotional disturbance, hearing impairment, intellectual disability, multiple disabilities, orthopedic disability, other health disability, and a specific disability. learning, speech language impairment, traumatic brain injury, acquired brain injury, visual impairment or blindness.”
But the rules will still allow a doctor anywhere in the country to make that decision. Phelps said the purpose of this section is to allow additional assistance for a student who was not previously qualified as a disabled, but who will be within the program.
Chairman Drew Klein said the problem is that there are two definitions of disability qualification, one approved in law before education freedom accounts were approved, and then another in that law.
The department remains a problem for legislative services, she said, but it boils down to two conflicting statutes, noting that it was left to setting rules to clarify the process.
He said the law was intended to “provide us with a process with how to handle quality private education funding for a student who is not in a particular public school.”
He said that the department tried to implement the legislative objective despite its conflict with the previous legislative objective.
“Ultimately, the legislature is going to have to go back and add some clarity there,” Klein said.
In a letter to the board, attorney Gerald M. Zelin, who represents the New Hampshire Association of Special Education Administrators, said the rules allow families to bypass qualifying protocols for state special education and will receive greater state aid.
Under federal law, he said, if the district in which a private school student resides identifies a child as eligible for special education, you must write an IEP and how it will be implemented and seek reimbursement from the district in which the student resides.
He said the private school would need to include the student in its federal share of Individuals with Disabilities Education Act funds, and calculate the cost of services.
Zelin suggested removing the section from the rules, but the council did not.
He also suggested that the rules include a clause prohibiting a disabled student with a Liberty Account and going to a special school, from attending the local school district to receive special services.
He said this provision is in the law, but it would be unconstitutional because it would require the local area to pay for private services to a student without any government assistance for those services.
In different words, offering RSA 193:1-c benefits to EFA students allows them to “have their cake and eat it too.” As a solution, NHASEA recommends a rule making clear that an EFA student ineligible to benefit from RSA 193:1 needs to Clarify the rights that a special education student may lose under “parental placement” to participate in the program.
He also raised constitutional questions about a provision giving the scholarship organization the discretion to determine what expenditures are allowed under the program, saying that must be decided by the legislature.
Zelin wrote: “The State Assembly may be able to salvage RSA 194-F:2, II(o) by doing what the legislature has failed to do—by adopting standards to implement that provision.” “For example, one of the criteria might say that the scholarship organization will not approve any program that teaches hate, bigotry, or divisive concepts.”
Phelps said her office will work with the legislative services until the legislative committee approves the rules as presented and not granted conditional approval.
The New Hampshire Children’s Scholarship Fund administers the program and has approved nearly 1,600 applications that receive $8 million in scholarships, with money coming from the Education Trust, which provides sufficient grants to public schools including charter schools.
The program’s advocate, Education Commissioner Frank Edelbolt, predicted that few students would join the program in the first year and did not allocate $8 million.
The controversial voucher program has been described as the most expansive in the country and was included in a budget package that was mostly approved by lawmakers and signed by Governor Chris Sununu. The school voucher program was a priority for this session of Republican lawmakers.
Supporters of the program say it will allow parents to find the most appropriate education for their children, and over time will save taxpayers money.
But opponents said it would harm public schools, allow state funds to be used for religious schools with little oversight and allow private and religious schools to discriminate against students with greater needs.
Under the new law, a parent seeking to create an account will receive between $4,500 to $8,500 per pupil to spend on tuition fees for any private, religious or alternative school and on other educational related costs including homeschooling, computers, books, etc.
The student’s parents will receive the sufficient basic state scholarship of approximately $3,700 plus additional money if the student qualifies for free or reduced lunches, special education services, ESL, or fails to achieve English proficiency.
The average scholarship is estimated at $4,600.
The program is open to parents of students in public schools—traditional and affiliated—private, religious, homeschooling, or other alternative educational programs.
Garry Rayno can be reached at email@example.com.