By GARRY RAYNO, InDepthNH.org
CONCORD – The final rules for the new state “Account for Freedom of Education” program, also known as vouchers, were adopted by the State Board of Education on Thursday.
The board has approved the rules, which will need to go to the Joint Legislative Administrative Rules Committee, despite concerns raised about eligible students with disabilities and a section that could require school districts to pay state-imposed costs without funding, which could be unconstitutional.
The rules have been amended to address a long list of concerns raised by lawyers for the Legislative Services Office when the rules were first presented to the legislative committee last summer.
Lawyers for Legislative Services have suggested that the ministry and lawmakers consider amending the law to correct ambiguities, possible conflicts with existing laws and federal law, inappropriate delegation of power to the organization of scholarships, and lack of accountability. monitoring, as well as provisions clarifying conflicts between the law and rules.
In a letter to Legislative Services, Amanda Phelps, Business Rules Coordinator for the Department of Education, addressed some of the changes that Legislative Services lawyers requested but were not made, largely due to conflicts of laws or requirements.
The ministry addressed the issues raised about confidential information and advised parents with students with special needs that joining the program would end a school district’s obligation to provide special education services to their child.
The rule changes addressed a key issue raised during the public hearings, but did not resolve the issue.
The concern is to allow doctors from anywhere in the country to nominate a disabled student, which triggers the need for additional services and provides additional money for the student’s parents for their studies.
A change in the rules defines who is considered a pupil with a disabling illness as “a child with autism, deafblindness, deafness, developmental delay, emotional disturbance, hearing impairment, intellectual disability, multiple disabilities, orthopedic impairment, other health problems, specific learning disability, language impairment, traumatic brain injury, acquired brain injury, visual impairment or blindness.
But the rules would still allow a doctor from anywhere in the country to make that decision. Phelps said the section is intended to allow additional help for a student who had not previously been labeled as disabled, but who would be under the program.
Board chairman Drew Cline said the problem is that there are two definitions for qualifying as disabled, one approved in law before the Freedom of Education accounts were approved, and the ‘other in this law.
He said the section is still an issue for the legislative services, but comes down to two conflicting laws, noting that it has been left to rule making to clarify the process.
The law was intended to “give us a process on how to manage funding for quality special education for a student who is not attending an assigned public school,” he said.
He said the ministry attempted to implement the legislative intent despite conflicting with the previous legislative intent.
“Ultimately, the legislature will have to come back and add some clarity there,” Cline said.
In a letter to the board, attorney Gerald M. Zelin, representing the New Hampshire Association of Special Education Administrators, said the rules allow families to bypass the qualification protocols of the state special education and will receive higher state aid.
He said that according to federal law, if the district where a pupil of a private school resides identifies the child as eligible for special education, it must write an individualized education plan and indicate how it would be implemented. work and request reimbursement from the district where the student resides.
He said the private school should include the student in its federal share of the Disability Education Act money and factor in the cost of services.
Zelin suggested that the section be removed from the rules, but the board did not.
He also suggested that the rules include a provision that would prohibit a disabled student with a freedom account who attends a private school from attending their local school district to receive special services.
He said the provision is in law, but would be unconstitutional as it would require the local district to pay for special services for the student without any state support for those services.
“In other words, providing the benefits of RSA 193: 1-c to EFA students allows them to have their cake and eat it too,” Zelin said. “As a solution, the NHAASEA recommends a rule clarifying that an EFA student is not allowed to take advantage of RSA 193: 1.
He also raised constitutional questions about a provision that gives the scholarship body discretion to determine what expenses are eligible under the program, saying this should be determined by the legislature.
“The Council of State might be able to save RSA 194-F: 2, II (o) by doing what the legislature failed to do – by adopting standards for the implementation of this provision,” writes Zelin. “For example, a standard might say that the scholarship organization will not endorse any program that teaches hatred, bigotry, or the concepts of division.”
Phelps said his office would work with legislative services to get the legislative committee to approve the rules as presented and not grant conditional approval.
The Children’s Scholarship Fund New Hampshire manages the program and has approved approximately 1,600 applications receiving $ 8 million in scholarships, money from the Education Trust Fund, which provides adequate grants to public schools, including charter schools.
An advocate for the program, Education Commissioner Frank Edelblut predicted that few students would join the program in the first year and failed to budget the $ 8 million.
The controversial voucher program has been called the largest in the country and has been included in the budget package approved primarily by lawmakers and signed by Governor Chris Sununu. A school voucher program was a priority this session for Republican lawmakers.
Supporters of the program say it will allow parents to find the most appropriate education for their child and, over time, save taxpayer dollars.
But opponents said it would hurt public schools, allow state money 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 open an account would receive between $ 4,500 and $ 8,500 per student to spend on tuition at a private, religious or alternative school and for other related educational costs, including home education, computers, books, etc.
The student’s parents would receive the state’s Basic Adequacy Grant of approximately $ 3,700 plus additional money if the student qualified for free or reduced-rate lunches, training services. special education, English as a second language instruction or did not achieve proficiency in English.
The average grant is estimated at $ 4,600.
The program is open to parents of a student in public – traditional and charter – private or religious schools, home schooling or other alternative educational programs.
Garry Rayno can be contacted at email@example.com.