Valley News – Lawmakers Allow ‘Education Freedom Account’ Rules To Go Forward Despite Lawyers’ Concerns
New Hampshire’s “Account for Education Freedom” program is set to roll out statewide this month, after a critical vote Thursday by the state’s Joint Legislative Committee on the Rules administrative (JLCAR).
But the vote – which approved a set of interim rules designed to get the program up and running by the start of the school year – came after a series of concerns from lawyers on the committee that the rules needed to be addressed. an important clarification.
In a rule markup presented to lawmakers ahead of Thursday’s meeting, lawyers for the committee said the interim rules did not set out clear guidelines on how education freedom accounts will be monitored, how information will be monitored. confidentiality will be protected and what jurisdiction the State has over the private organization that manages the program.
Lawyers have identified other key questions, including whether new accounts are allowed to be tax exempt and whether criminal background checks are required for tutors and educational service providers approved under the program.
In response to the markup, lawyers for the Department of Education this week made a number of changes intended to address the concerns. But many of the broader issues identified by committee lawyers have yet to be addressed.
“It could be, since this is a brand new program, that there are just practical issues that cannot yet be resolved,” said Kim Reeve, counsel for the committee, who assisted to write the markup.
New Hampshire’s Account for Education Freedom program is designed to allow parents of children who do not attend public school to access state money that would have been sent to their public school local and use it for tuition, tutoring, class materials and other expenses. .
Republicans and school choice advocates hailed it as an opportunity for low-income children and families whose local public school is unsuitable to find other options. Democrats have warned that this will drain resources from public schools and state revenue, and redirect public funds to religious schools.
The main statutory lines of the new program were promulgated as part of the state budget in June. But lawmakers and members of the State Board of Education are required to pass a set of administrative rules that clarify how the program works so it can move forward.
On Thursday, the 10-member Business Rules Committee voted, 6-4, to advance a set of fast-track interim rules with the understanding that the Education Department would aim to get approval of the standing rules within six months. . The vote fell on party lines as Democrats opposed.
But the provisional rules approved Thursday contained a number of provisions which the committee’s lawyers said raise concerns.
Under the EFA program, the state will contract with a private scholarship organization to administer families’ savings accounts and designate education providers and services to which parents can direct the money.
Yet the rules do not outline clear control mechanisms over this organization, the lawyers said.
For example, the rules require the organization to issue a blanket agreement to parents to let them know how the program works and what the expectations are. But nothing obliges the education ministry to sign the agreement, the committee’s lawyers noted.
There is also confusing language around criminal background checks, the lawyers wrote. Although the rules require the scholarship organization to publicly publish the employee background check process for the training providers it approves, there is no legal authority to allow the private organization to specifically perform criminal background checks and no direct requirement that they perform them. outside.
It is also not fully explained how the money is spent, the lawyers said. The rules require that the Internet and technology purchased with state funds be “primarily” used to aid student education, the lawyers noted. But the rules do not specify the meaning of “mainly”. And there is no clear approval process for the types of “computing devices” covered by the law.
Rules are also written to consider a single scholarship organization, even though the law allows multiple scholarship organizations. “The board does not have the clear authority to have more than one scholarship organization,” the committee lawyers wrote.
The provisional education freedom account rules – which have not been the subject of public hearings – are supposed to last only six months and were intended to put the program in place for the 2021-2022 school year. The Department of Education must now develop permanent rules using the traditional process, which means there must be a period of public comment and hearings.
But even though the formal rule-making process fixes some of the flaws in the original draft of the rules, lawyers for JLCAR said there are a number of issues that may require new legislation to be addressed.
On the one hand, the underlying law creating the program presented savings accounts as non-taxable income for families. “It may conflict with federal tax law,” the lawyers noted.
The law is silent on what protections must be in place to protect health care information obtained by scholarship organizations, including for students with disabilities.
And it doesn’t make it clear what protections are available for students with disabilities when their families remove them from the public school system and use an FTE.
Then there is the question of whether the private stock market has been given too much power.
“The law grants the scholarship organization the authority that is usually given to the executive agency and may represent an impermissible delegation of power,” JLCAR lawyers wrote.
Lawyers for the Department of Education dismissed many of these concerns in their testimony to the committee, noting that they had deleted many of the ambiguous sentences that had been pointed out by committee lawyers earlier in the week.
On the one hand, there is no need to do criminal background checks for all education service providers who might benefit from savings accounts, lawyers for the department argued.
“I think, for context, it’s important to point out that the concept of an educational service provider is very broad,” said Chris Bond, legal counsel for the Department of Education. “… So many education service providers will not have direct interaction with children. “
Bond added that the state’s Department of Education did not have authority over the rights parents of students with disabilities would have if they left the public school system, noting that the Disability Education Act falls under the jurisdiction of the US Department of Education. But he said the State Department would work to get better answers in the future.
And he noted that the state already has a formal agreement with the Children’s Scholarship Fund – the nonprofit chosen to run the program in its first year – that addresses some of the areas not covered in the rules or the law. This contract was approved by the Executive Council earlier this month.
“We already have a contract with a scholarship organization that will guide us through the provisional settlement period,” Bond added. “So, for example, confidentiality protections are addressed in this contract, which is why we felt comfortable not having them in the interim rule.”
A lawyer who testified before the committee objected to the adoption of the interim rules. Gerald Zelin, an attorney representing the New Hampshire Association of Special Education Administrators, said the rules should not be enforced until there are better clarifications on the rights of parents of students with disabilities who participate in the E FA.
“Once a government benefit is granted, we all know it’s hard to take it away,” Zelin said. “People trust it with good reason. And so we have to put these interim rules in place the first time, even if they are only interim rules.
Democrats on the committee agreed, arguing that more time should be taken to address any concerns of committee lawyers.
Representative William Hatch, a Democrat from Gorham and former chairman of the rules committee, noted that the number of concerns raised by committee staff was unusual.
“While it’s not uncommon to have concerns about making conditional rules to deal with in regular rule making, I have never seen so many issues dealt with in this way,” he said. he declares.
Others said the rules did not provide enough transparency.
“This is public money – we are giving public money with virtually no control over a private entity that will not be subject to our right to know law,” said Senator Becky Whitley, Democrat of Concord. “Even whatever your political stance on this program, we cannot violate public trust and allow a deeply flawed program to be hastily implemented without adequate protections, without careful scrutiny by this committee.”
But Republicans countered that Democrats were overstepping the authority of the committee, which is supposed to verify the rules, not the statutes behind them.
“The objections I have heard so far relate exclusively to politics,” said Rep. Terry Roy, a Republican from Deerfield. “The Legislature has spoken; the governor spoke; people were talking. These rule issues can be settled permanently.
Senator John Reagan, another Republican from Deerfield and chairman of the committee, expressed a similar point of view.
The provisional rules are not yet fully approved; they will go to the State Board of Education for final approval at its Friday meeting.
But even Reagan acknowledged that the process to complete them this week had been a dash.
“It was a complicated rule in a very short period of time,” he said. “It was a back and forth between the JLCAR staff and the Ministry of Education, and it was difficult.”