MISSISSIPPI LEGISLATURE
2019 Regular Session
To: Education; Appropriations
By: Senator(s) Carmichael
AN ACT TO AMEND SECTION 37-181-5, MISSISSIPPI CODE OF 1972, TO MAKE PROVISION FOR CERTAIN LIMITS ON TUTOR SERVICES REIMBURSEMENT UNDER THE EDUCATIONAL SCHOLARSHIP PROGRAM; TO AMEND SECTION 37-181-7, MISSISSIPPI CODE OF 1972, TO ELIMINATE THE LOTTERY METHOD OF SELECTING PARTICIPANTS IN THE EDUCATION SCHOLARSHIP PROGRAM, AND TO SET STANDARDS FOR SELECTING PERSONS FROM THE WAITING LIST; TO AMEND SECTION 37-181-9, MISSISSIPPI CODE OF 1972, TO REQUIRE THE DEPARTMENT OF EDUCATION TO DEVELOP AN ACCOUNTABILITY SYSTEM FOR THE EDUCATION SCHOLARSHIP PROGRAM, REPORT TO THE LEGISLATURE ON THE POSSIBILITY OF REAPPROPRIATING UNOBLIGATED FUNDS FOR THE PROGRAM, AND TO REQUIRE THE DEPARTMENT TO ESTABLISH AN APPEALS PROCESS FOR PERSONS AGGRIEVED BY CERTAIN DECISIONS OF THE DEPARTMENT; TO AMEND SECTION 37-181-11, MISSISSIPPI CODE OF 1972, TO REQUIRE THE DIRECT PAYMENT OF TUITION TO SCHOOLS, AND TO REQUIRE THE DEPARTMENT OF EDUCATION TO APPLY CERTAIN STANDARDS TO TUTORS WHO PROVIDE SERVICES TO ESA PROGRAM PARTICIPANTS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 37-181-5, Mississippi Code of 1972, is amended as follows:
37-181-5. (1) An eligible student shall qualify to participate in the program if the parent signs an agreement promising:
(a) To provide an organized, appropriate educational program with measurable annual goals to their participating student and, to the extent reasonably deemed appropriate by the parent, to provide an education for the qualified student in at least the subjects of reading, grammar, mathematics, social studies and science;
(b) To document their participating student's disability at intervals and in a manner required under subsection (8) of this section;
(c) Not to enroll their participating student in a public school and to acknowledge as part of the agreement that the home school district has provided clear notice to the parent that the participating student has no individual entitlement to a free appropriate public education (FAPE) from their home school district, including special education and related services, for as long as the student is participating in the program;
(d) Not to file for their participating student a certificate of enrollment indicating participation in a home instruction program under Section 37-13-91, Mississippi Code of 1972; and
(e) Not to participate in the Mississippi Dyslexia Therapy Scholarship for Students with Dyslexia Program or the Mississippi Speech-Language Therapy Scholarship for Students with Speech-Language Impairments Program while participating in the ESA program.
(2) Parents shall use the funds deposited in a participating student's ESA for any of the following qualifying expenses to educate the student using any of the below methods or combination of methods that meet the requirement in subsection (1)(a) of this section:
(a) Tuition and/or fees at an eligible school;
(b) Textbooks;
(c) Payment to a tutor; provided, however, that the tutor complies with the requirements set out in Section 4 of this act;
(d) Payment for purchase of curriculum, including any supplemental materials required by the curriculum;
(e) Fees for transportation to and from an educational service provider paid to a fee-for-service transportation provider;
(f) Tuition and/or fees for online learning programs or courses;
(g) Fees for nationally standardized norm-referenced achievement tests, including alternate assessments; and fees for Advanced Placement examinations or similar courses and any examinations related to college or university admission;
(h) Educational services or therapies from a licensed or certified practitioner or provider, including licensed or certified paraprofessionals or educational aides;
(i) Services provided by a public school, including individual classes and extracurricular programs;
(j) Tuition and fees at a postsecondary institution;
(k) Textbooks related to coursework at a postsecondary institution;
(l) Surety bond payments if required by the department;
(m) No more than Fifty Dollars ($50.00) in annual consumable school supplies necessary for educational services and therapies, daily classroom activities, and tutoring;
(n) Computer hardware and software and other technological devices if an eligible school, licensed or certified tutor, licensed or certified educational service practitioner or provider, or licensed medical professional verifies in writing that these items are essential for the student to meet annual, measurable goals. Once a student is no longer eligible for the program, computer hardware and software and other technological devices purchased with ESA funds may be donated to a library or a nonprofit organization with expertise and training in working with parents to educate children with disabilities or a nonprofit organization with expertise and training in working with disabled adults.
(3) Neither a participating student, nor anyone on the student's behalf, may receive cash or cash-equivalent items, such as gift cards or store credit, from any refunds or rebates from any provider of services or products in this program. Any refunds or rebates shall be credited directly to the participating student's ESA. The funds in an ESA may only be used for education-related purposes. Eligible schools, postsecondary institutions and educational service providers that serve participating students shall provide parents with a receipt for all qualifying expenses.
(4) Payment for educational services through an ESA shall not preclude parents from paying for educational services using non-ESA funds.
(5) ESA funds may not be used to attend an eligible school that maintains its primary location in a state other than Mississippi unless that school is approved for the Educable Child Program; or unless the parent verifies in writing that their child cannot reasonably obtain appropriate special education and related services in Mississippi at a location within thirty (30) miles of their legal residence.
(6) For purposes of continuity of educational attainment, students who enroll in the program shall remain eligible to receive quarterly ESA payments until the participating student returns to a public school, completes high school, completes the school year in which the student reaches the age of twenty-one (21), or does not have eligibility verified by a parent as required under subsection (8) of this section, whichever occurs first.
(7) Any funds remaining in a student's Education Scholarship Account upon completion of high school shall be returned to the state's General Fund.
(8) Every three (3) years after initial enrollment in the program, a parent of a participating student, except a student diagnosed as being a person with a permanent disability, shall document that the student continues to be identified by the school district, a federal or state government agency, or a licensed physician or psychometrist as a child with a disability, as defined by the federal Individuals with Disabilities Education Act (20 USCS Section 1401(3)).
(9) A participating student shall be allowed to return to his home school district at any time after enrolling in the program, in compliance with regulations adopted by the department providing for the least disruptive process for doing so. Upon a participating student's return to his home school district, that student's Education Scholarship Account shall be closed and any remaining funds shall be returned to the state's General Fund.
(10) The department shall begin accepting applications for the program on July 1, 2015.
SECTION 2. Section 37-181-7, Mississippi Code of 1972, is amended as follows:
37-181-7. (1) The ESA
program created in this chapter shall be limited to five hundred (500) students
in the school year 2015-2016, with new enrollment limited to five hundred (500)
additional students each year thereafter. Subject to appropriation from the
General Fund, each student's ESA shall be funded at * * * the base student cost under
Section 37-151-7(1)(b) * * *.
(2) Subject to appropriation, eligible students shall be approved for participation in the program as follows:
(a) Until participation in the program reaches fifty percent (50%) of the annual enrollment limits in subsection (1) of this section, students shall be approved on a first-come, first-served basis, with applications being reviewed on a rolling basis;
(b) After
participation reaches fifty percent (50%) of the annual enrollment limits in
subsection (1) of this section, the department shall set annual application
deadlines for the remaining number of available ESAs and begin to maintain a waiting
list of eligible students. * * * The department shall give priority to persons on the
waiting list who have active Individual Education Plans (IEPs), have been on
the waiting list for the longest time, and those who are from low-income groups
as measured by a standard the department considers to be most appropriate;
and
(c) Participating students who remain eligible for the program are automatically approved for participation for the following year and are not subject to the random selection process.
(3) No funds for an ESA may be expended from the Mississippi Adequate Education Program, nor shall any school district be required to provide funding for an ESA.
SECTION 3. Section 37-181-9, Mississippi Code of 1972, is amended as follows:
37-181-9. (1) The department shall create a standard form that parents of students submit to establish their student's eligibility for an Education Scholarship Account. The department shall ensure that the application is readily available to interested families through various sources, including the department's website and the copy of procedural safeguards annually given to parents.
(2) The department shall provide parents of participating students with a written explanation of the allowable uses of Education Scholarship Accounts, the responsibilities of parents and the duties of the department. This information shall also be made available on the department's website.
(3) The department shall annually notify all students with an IEP of the existence of the program and shall ensure that lower-income families are made aware of their potential eligibility.
(4) The department may deduct an amount up to a limit of six percent (6%) from appropriations used to fund Education Scholarship Accounts to cover the costs of overseeing the funds and administering the program.
(5) (a) The department shall make a determination of eligibility, and shall approve the application, within twenty-one (21) business days of receiving an application for participation in the program, subject to the provisions of Section 37-181-3(b).
(b) The department shall provide for a procedure that children with a ruling of hearing impairment or children suspected of a hearing loss shall receive a comprehensive educational assessment which may include the areas of cognitive development, language/speech, audiological and academic achievement from the state-funded Mississippi Assistance Center for Hearing Loss. Children with a ruling of visual impairment or children suspected of a visual impairment shall receive a comprehensive low vision evaluation from the state-funded Low Vision Clinic.
(6) The home school district shall provide the parent of a participating student with a complete copy of the student's school records, while complying with the Family Educational Rights and Privacy Act of 1974 (20 USCS Section 1232(g)). The record shall be provided no later than thirty (30) days after a parent signs an agreement to participate in the program.
(7) The State Board of Education may contract with a qualified nonprofit organization with expertise and training in working with parents to educate children with disabilities to administer the program.
(8) By December 1, 2019, the Mississippi Department of Education shall deliver to the Mississippi State Senate and House of Representatives recommendations on the implementation of an accountability system for the Education Scholarship Account program. Such accountability system shall be devised so as to enable the department, the Legislature, or any other oversight body to determine:
(a) Program participants' progress toward their special needs goals (whether those are included in an Individualized Education Plan from the public school system or a service plan from the nonpublic school system);
(b) Program participants' performance on nationally norm-referenced achievement tests, and any other tests related to college or university admission;
(c) Program participants' graduation rates and college acceptance rates;
(d) Nonpublic schools' compliance with their statutory obligations (e.g., compliance with health and safety laws), as described in Section 37-181-15, Mississippi Code of 1972;
(e) Nonpublic school quality;
(f) Any other pertinent program outcomes; and
(g) Whether or not the provisions in Section 37-181-5(5), Mississippi Code of 1972, that allows parents to use ESA funds to attend a school out of state after the parent has verified in writing when the child "cannot reasonably obtain appropriate special education and related services in Mississippi at a location within thirty (30) miles of their legal residence" should be revised. Such a recommendation could provide protection for the state and for public school districts against liability due to the district's alleged inability to provide appropriate special education services.
(9) The Mississippi Department of Education shall study and report to the 2020 Legislature whether or not it would be advisable from the Legislature to annually give the Department of Education reappropriation authority to expend unobligated balances from the preceding fiscal year.
(10) The Department of Education shall establish an appeals procedure for any parent or guardian aggrieved by any decision of the department relative to a student's eligibility to participate in the program, or eligibility for reimbursement for a qualifying expense.
SECTION 4. Section 37-181-11, Mississippi Code of 1972, is amended as follows:
37-181-11. (1) To ensure that funds are spent appropriately, the State Department of Education shall adopt rules and policies necessary for the administration of the program, including the auditing of Education Scholarship Accounts, and shall conduct or contract for random audits throughout the year.
(2) (a) The department or qualified nonprofit shall develop a system for payment of benefits, including, but not limited to, allowing educational service providers to invoice the department or designated nonprofit for qualified expenses consistent with Section 37-181-5(2), or allowing parents to seek reimbursement for qualified expenses consistent with Section 37-181-5(2).
(b) The department or qualified nonprofit may make payments to educational service providers or reimbursement to parents via check or warrant or electronic funds transfer or any other means of payment deemed to be commercially viable or cost-effective, on a monthly basis.
(c) The department may also establish by rule that some payments to educational service providers will be made on a quarterly basis, rather than an annual basis, if the educational services will be rendered over an extended period of time.
(3) The department shall adopt a process for removing educational service providers that defraud parents and for referring cases of fraud to law enforcement.
(4) The department shall establish or contract for the establishment of an online anonymous fraud reporting service.
(5) The department shall establish or contract for the establishment of an anonymous telephone hotline for fraud reporting.
(6) From and after July 1, 2019, the Department of Education, or any qualified nonprofit, shall institute a payment procedure by which tuition and/or fees from an eligible school will be billed by the school and paid directly to the school on a semiannual basis.
(7) Neither the department nor any qualified nonprofit shall reimburse or directly pay for any tutor unless the tutor can establish that:
(a) The tutor holds a current, valid Mississippi teaching certificate for the subject or grade level;
(b) The tutor completes and submits the full-time tutor participation agreement and an IRS Form W9;
(c) The services rendered by the tutor do not exceed maximum hours set out herein. For Grades K-3, full-time tutoring is considered seven hundred twenty (720) hours per school year. For grades 4-12, full-time tutoring is considered nine hundred (900) hours (equivalent to one hundred eighty (180) teaching days);
(d) Full-time private tutors may not have more than five (5) students at one time.
SECTION 5. This act shall take effect and be in force from and after July 1, 2019.