Despite lawyers’ concerns, final rules for educational freedom accounts are approved – New Hampshire Bulletin

On Friday, New Hampshire lawmakers and members of the State Board of Education approved final rules for the state’s “educational freedom account” program, overriding legal concerns from legislative lawyers and Democrats.

Vote 6-3, the Joint Legislative Committee on Administrative Rules approved the final rules Friday morning. At an emergency meeting on Friday afternoon, the State Board of Education also approved the rules.

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 budget in June, New Hampshire’s Education Freedom Account program allows parents to access the state’s annual per-pupil education funding for their child and to use it for private school and home schooling expenses, including tuition and materials. The program is carried out by a non-profit scholarship organization under a contract with the state; the new rules dictate how this scholarship organization must hold and administer funds for families, what the money can be used for, and how education providers must be vetted and approved.

But nonpartisan lawyers on the House and Senate rules committee highlighted a number of provisions of the new rules that they said needed clarification or modification.

One of the concerns was the background checks of teachers in programs potentially approved under the EPT program. The rules state that the scholarship body must publish the procedures it uses to approve educational service providers for students and include “the procedures, if any, used by educational service providers to ensure the background checks of employees who have direct contact with students”.

JLCAR’s lawyers argued that the underlying law that created the EFA program does not allow the scholarship organization to require criminal background checks for the programs it offers, meaning that the procedure of approval might not be helpful.

Another area of ​​the new rules states that “the scholarship organization will have access to students’ confidential information” in order to help approve expenses for those students. This information may include medical and educational records.

JLCAR attorneys noted that the rules state that the Health Insurance Portability and Accountability Act (HIPAA) and the Family Education Rights and Privacy Act (FERPA) would not apply. not to the organization of scholarships. 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 other concerns at the committee meeting on Friday. Senator Becky Whitley, a Democrat from Hopkinton, argued that the rules should include a provision stating that public funds cannot be used for programs that provide “religious instruction”, which is unconstitutional.

“I don’t understand the objections to putting this in the rules, to providing clear direction to our taxpayers, to providing clear direction to the organizations receiving this money, that it’s not allowed,” she said. . “You know, this money goes to religious schools. How do I know, as a taxpayer, that they will not use this money for religious instruction? »

And Democrats have challenged the underlying law that created the new spending accounts, which details a number of valid areas where parents can use the new funds — from tuition to computer equipment to school uniforms. – but includes a provision authorizing “any other educational expense approved by the scholarship body.

Whitley described this provision as a “catch-all” and argued for adding an amendment to the rules to clarify it.

On Friday, Education Department officials pushed back on some of the suggestions — from both Democrats and JLCAR lawyers.

In a letter to JLCAR committee attorney Michael Morrell, Amanda Phelps, administrative rules coordinator for the Department of Education, also noted that HIPAA does not apply to school districts and that FERPA protections do not apply. apply only to educational service providers who accept federal funds.

Responding to concerns in person on Friday, Education Commissioner Frank Edelblut said the catch-all provision had been included by the legislature and that the Department of Education and scholarship organizations would exercise their discretion to ensure that the expenses were legal – and publish a list of expenses incurred.

And Edelblut rejected the idea that the rules should stipulate a ban on using funding for religious instruction, arguing that it would confuse parents who might not understand the difference between programs that include religious instruction, which are invalid, and religious schools that provide non-denominational education. , which are.

The best approach, according to Edelblut, is to list the valid uses of funding and not attempt to provide an exhaustive list of what is not valid.

“We are very clear in terms of numbers in terms of what is permitted, and religious instruction is prohibited as prohibited by the Constitution,” he said.