Attorney Gerald Zelin Raises Legal and Financial Concerns about NH's Education Freedom Accounts

New Hampshire’s Joint Legislative Committee on Administrative Rules (JLCAR) voted 6-4 down party lines last Thursday to approve the State Board of Education’s interim rules for the new Education Freedom Account (EFA) program.  The interim rules are likely to be in place until early next year as the State Board of Education goes through the regular rule-making process.

Gerald Zelin, representing the New Hampshire Association of Special Education Administrators (NHASEA), raised legal and financial concerns about how the state would offer education freedom accounts (vouchers) for low and moderate-income parents who send their children to private schools. The State Board of Education’s proposed interim EFA rules contain two provisions relative to special education for students with disabilities.  Zelin pointed out that both provisions conflict with the EFA statute (RSA 194-F) and with the state and federal special education laws.

  1. The proposed rules fail to ensure parents receive adequate notice that, by statute, a
    child placed by parents in a private school forfeits many rights under the special education laws.
  2. The proposed EFA rules violate the state and federal special education laws by allowing a
    medical professional to unilaterally identify an EFA student as disabled without any public
    oversight to prevent over-identification. This in turn will increase costs to the state, as
    the EFA program awards larger vouchers to students with disabilities, yet does not
    compel private schools to provide these students with special education.

In addition, Zelin noted, the proposed rules fail to take into account that another statute, RSA 193:1-c, allows private school students to attend their district of residence’s public schools part-time.  That is unfair, because the EFA statute strips a school district of all state aid tied to a student and redirects that aid to the student’s voucher.

While voting to approve the interim rules, JLCAR noted that concerns Zelin raised were valid. The Committee urged the State Board of Education to promptly begin the process of adopting final rules to correct those deficiencies and to work with the legislature to improve the statute.

JLCAR also agreed with Zelin that the State Board of Education, not the private organization doling out vouchers, should be responsible for writing the notice of rights that special education children relinquish when they attend private schools under the EFA program.  JLCAR attached that as a condition to its approval of the interim rules.

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