MISSISSIPPI LEGISLATURE
2016 Regular Session
To: Education; Appropriations
By: Senator(s) Clarke
AN ACT TO REVISE PROVISIONS OF SCHOLARSHIP PROGRAM KNOWN AS "THE EQUAL OPPORTUNITY FOR STUDENTS WITH SPECIAL NEEDS ACT" AND RENAME IT AS THE "EQUAL OPPORTUNITY FOR ALL STUDENTS ACT" FOR PURPOSES OF PROVIDING EDUCATION SCHOLARSHIP ACCOUNTS (ESA) FOR PARENTS OF ELIGIBLE STUDENTS; TO AMEND SECTION 37-181-1, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; TO AMEND SECTION 37-181-3, MISSISSIPPI CODE OF 1972, TO REVISE THE DEFINITION OF ELIGIBLE STUDENT BY PRESCRIBING THE CRITERIA FOR DETERMINING ELIGIBILITY FOR PARTICIPATION IN THE PROGRAM AND TO EXPAND THE DEFINITION OF THE TERM TUTOR; TO AMEND SECTION 37-181-5, MISSISSIPPI CODE OF 1972, TO STIPULATE THE OBLIGATIONS OF PARENTS OR LEGAL GUARDIANS, STUDENTS AND SCHOOLS TO BECOME AND REMAIN ELIGIBLE FOR PARTICIPATION; TO AMEND SECTION 37-181-7, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE FUNDING OF EACH STUDENT'S ESA AND TO PHASE IN THE NUMBER OF AVAILABLE EDUCATION SAVINGS ACCOUNTS ON AN ANNUAL BASIS; TO AMEND SECTION 37-181-9, MISSISSIPPI CODE OF 1972, TO REDUCE THE AMOUNT OF THE ADMINISTRATION COSTS THE STATE DEPARTMENT OF EDUCATION MAY RECEIVE FROM FUNDS APPROPRIATED FOR ESAS FROM SIX PERCENT TO FOUR PERCENT AFTER THREE YEARS OF IMPLEMENTATION; TO AMEND SECTION 37-181-11, MISSISSIPPI CODE OF 1972, TO REQUIRE THE STATE DEPARTMENT OF EDUCATION OR QUALIFIED NONPROFIT TO DEVELOP A SYSTEM FOR THE PAYMENT OF QUALIFIED EXPENSES WHICH ARE DETERMINED TO BE COMMERCIALLY VIABLE, COST EFFECTIVE AND PARENT FRIENDLY; TO PROHIBIT THE ADOPTION OF A PAYMENT SYSTEM THAT PLACES LIMITS ON A PARENT'S ABILITY TO BE REIMBURSED FOR OUT-OF-POCKET EXPENSES THAT MEET REQUIREMENT OF A QUALIFIED EXPENSE; TO AMEND SECTION 37-181-15, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PRECEDING PROVISIONS; TO BRING FORWARD SECTIONS 37-181-13, 37-181-17, 37-181-19 AND 37-181-21, MISSISSIPPI CODE OF 1972, FOR THE PURPOSE OF POSSIBLE AMENDMENT; TO AMEND SECTION 12, CHAPTER 441, LAWS OF 2015, TO DELETE THE REPEALER; TO CREATE A NEW CODE SECTION TO BE CODIFIED AS SECTION 37-181-20, WHICH PROVIDES THAT THE MISSISSIPPI ADMINISTRATIVE PROCEDURES ACT SHALL BE APPLICABLE TO THE RULES AND REGULATIONS PROMULGATED BY THE STATE DEPARTMENT OF EDUCATION FOR THE ADMINISTRATION OF THE PROGRAM; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 37-181-1, Mississippi Code of 1972, is amended as follows:
37-181-1. This chapter
shall be known and may be cited as "The Equal Opportunity for All
Students * * * Act."
SECTION 2. Section 37-181-3, Mississippi Code of 1972, is amended as follows:
37-181-3. The terms used in this chapter shall have the meanings ascribed herein, unless the context clearly indicates otherwise:
(a)
"Program" means a * * * program to implement the
Education Scholarship Account (ESA) program created in this chapter.
(b) "Eligible student" means any student who is a resident of the state and meets at least one (1) of the following:
(i) Was enrolled in and attended a Mississippi primary or secondary public or charter school during the prior academic year;
(ii) Is eligible to enroll in kindergarten or first grade;
(iii) Has had an active Individualized Education Program (IEP) written in accordance with the rules of the State Board of Education within the past eighteen (18) months;
(iv) Has received a diagnosis from a physician or psychologist licensed in the state for the following disabilities: autism spectrum disorder, cerebral palsy, Down Syndrome,
Prader-Willi Syndrome, spina bifida, muscular dystrophy, Williams Syndrome, a diagnosis of hearing or vision impairment or a ruling referenced in Section 37-181-9(5)(b), or a specific learning disability as defined as such by the federal Individuals with Disabilities Education Act (20 USCS, Section 1401(b));
(v) Is a child of a parent who is a member of the Armed Forces of the United States and who is on active duty or was killed in the line of duty;
(vi) Is a foster child who has achieved permanency through adoption or guardianship;
(vii) Is the sibling of a current eligible and participating student; or
(viii) Is a previous recipient of an ESA under the provisions of this program.
(c) "Parent" means a resident of this state who is a parent, legal guardian, custodian or other person with the authority to act on behalf of the eligible student.
(d) "Department" means the State Department of Education.
(e) "Home school district" means the public school district in which the student resides.
(f) "Eligible
school" means a nonpublic school * * * as
defined by Section 37-13-91, Mississippi Code of 1972.
(g) "Tutor"
means a person who is certified or licensed by a state, regional, or national
certification or licensing organization or who has earned a valid teacher's
license or who has at least three (3) years of experience teaching at an * * * accredited preschool, elementary,
secondary or postsecondary institution or who has at least five (5)
years' documented experience tutoring at least five (5) students over a five-year
period.
(h) "Postsecondary institution" means a community college, college, or university accredited by a state, regional or national accrediting organization.
(i) "Educational service provider" means an eligible school, tutor, or other person or organization that provides education-related services and products to participating students.
SECTION 3. 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) 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; and
* * *
( * * *c) 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) Signing an agreement pursuant to subsection (1) serves as the participating student's certificate of enrollment under Section 37-13-91 and shall not be construed to prohibit parents from enrolling their child in a home instruction program, provided that the parents are using ESA funds on one (1) or more of the educational expenses authorized in subsection (3) of this section to provide their participating student an education consistent with subsection (1)(a) of this section.
( * * *3) 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;
(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) * * * Contributions
to a Coverdell Education Savings Account established under 26 USCS Section 530
for the benefit of the participating student;
(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.
( * * *4) 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.
( * * *5) Payment for educational services
through an ESA shall not preclude parents from paying for educational services
using non-ESA funds.
( * * *6) 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 * * * services in Mississippi at a location within
thirty (30) miles of their legal residence.
( * * *7) For purposes of continuity of
educational attainment, students who enroll in the program shall remain
eligible to receive quarterly ESA payments at the funding amount specified
in Section 37-181-7 until the participating student returns to a public
school, completes high school * * * or completes the school year in which
the student reaches the age of twenty-one (21), * * * whichever occurs
first.
( * * *8) Any funds remaining in a student's
Education Scholarship Account upon completion of high school shall be returned
to the state's General Fund.
* * *
(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.
* * *
SECTION 4. Section 37-181-7, Mississippi Code of 1972, is amended as follows:
37-181-7. (1) Beginning
with the 2016-2017 school year, the ESA program created in this chapter
shall be limited to * * * the equivalent of one percent (1%) of the
estimated statewide total public school enrollment in the preceding
school year * * *,
with new enrollment limited to * * * an additional * * * one percent (1%) of the statewide
public school enrollment each year thereafter.
(2) * * *
(a) There is created a special fund
in the State Treasury to pay for the Education Scholarship Accounts established
in this chapter. Payments made to this special fund under this subsection by
the State Department of Education shall be made at the same time and in the
same manner as adequate education program payments are made to school districts
under Sections 37-151-101 and 37-151-103. Amounts payable to the special fund
shall be determined on a monthly basis by the State Department of Education
based on the number of scholarship accounts approved by the department and
funded as provided under subsection (3) of this section.
(b) Nothing in this subsection shall be construed to require that any school district be required to provide funding for a scholarship account nor to prevent the department from funding all ADA units for each school district in the annual allotment calculation. In connection with its annual report to the Legislature requesting MAEP funding, the department shall provide an analysis of any changes to ADA counts for school districts as a result of the implementation of this article.
(3) * * * Each student's ESA shall be funded
at the following amounts for the 2016-2017
school year and shall increase or decrease each subsequent year by the same
proportion as the base student cost under Section 37-151-7(1)(b):
(a) For students with disabilities meeting the definition of "eligible student" and prescribed under Section
37-181-3(b)(iii) and (iv), the amount shall be Six Thousand Five Hundred Dollars ($6,500.00);
(b) For students within a household with a household income not greater than two hundred percent (200%) of the federal poverty level, the amount shall be Five Thousand Dollars ($5,000.00);
(c) For students within a household with a household income greater than two hundred percent (200%) but less than three hundred fifty percent (350%) of the federal poverty level, the amount shall be Four Thousand Dollars ($4,000.00); or
(d) For all other participating students, the amount shall be Three Thousand Dollars ($3,000.00).
(4) The State Department of Education shall accept program applications on a monthly basis, during which a parent may apply to determine if his or her child is an eligible student. This enrollment period shall occur twelve (12) times a year, opening on the first day of each month and closing on the last day of the same month. During this period, parents shall be able to submit applications for the program in the manner prescribed by the department. At the close of each enrollment period, the department shall review and send to the parents, within fifteen (15) business days, notification of whether his or her application for the program has been approved or denied.
(a) If an application is denied, the department shall provide the parents written notification by certified mail or by electronic communication of the reason or reasons for the denial.
(b) If an application has been approved, the child shall be classified as a participating student.
(5) If the department receives more applications during a monthly enrollment period than are available positions, as provided for in subsection (1), the department shall use a random selection process that gives first preference to students with disabilities pursuant to Section 37-181-3(b)(ii) and (iii) and second preference to students meeting the income definition of subsection (3)(b) of this section.
(6) Once enrollment limits have been reached as prescribed under subsection (1) of this section, the department shall continue to accept applications and shall notify parents who have submitted applications that such application will be placed in a queue until the department begins enrolling new students for the following year. At that time, applications will be processed in the order in which they were received, following the procedure prescribed in subsection (5) of this section.
(7) 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.
SECTION 5. 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) In the first three (3) years of the program's operation, beginning with the 2016-2017 school year, 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. In subsequent years, the department may deduct an amount up to a limit of four percent (4%) from appropriations used to fund Education Scholarship Accounts for administrative costs.
(5) * * * 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 * * *
shall contract with a qualified nonprofit organization * * * to administer the program.
(8) The State Department of Education shall create a standard form for physicians and psychologists to verify that they have provided a diagnosis for an eligible child as defined under the provisions of Section 37-181-3(b)(iv).
SECTION 6. 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 * * * paying qualified expenses
that the department determines to be commercially viable, cost-effective and
parent friendly. The department shall not adopt a system that limits parents
to being reimbursed for out-of-pocket expenses.
(b) The department
or qualified nonprofit may develop a system to make payments directly
to educational service providers * * * on behalf of parents.
(c) The department * * * shall make funds available to participants through
quarterly installments as provided in Section 37-181-7.
(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.
SECTION 7. Section 37-181-13, Mississippi Code of 1972, is brought forward as follows:
37-181-13. (1) The Joint Legislative Committee on Performance Evaluation and Expenditure Review (PEER) shall prepare a biannual report, beginning in 2018 and every two (2) years thereafter, assessing the sufficiency of funding for Education Scholarship Accounts and recommending any suggested changes in state law or policy necessary to improve the program.
(2) The report shall assess:
(a) The level of participating students' satisfaction with the program;
(b) The level of parental satisfaction with the program;
(c) Student performance on nationally standardized norm-referenced achievement tests for those participating students whose parents have requested participation in such tests;
(d) Student performance on Advanced Placement examinations or similar courses and any examinations related to college or university admission;
(e) The high school graduation rates and college acceptance rates of participating students;
(f) The percentage of funds used for each qualifying expense identified in Section 37-181-5(2);
(g) The fiscal impact to the state and home school districts of the program, which must consider both the impact on revenue and the impact on expenses. Furthermore, the fiscal savings associated with students departing public schools must be explicitly quantified, even if the public school losing the student(s) does not reduce its spending accordingly.
(3) The report shall:
(a) Apply appropriate analytical and behavioral science methodologies to ensure public confidence in the study; and
(b) Protect the identity of participating students and schools by, among other things, keeping anonymous all disaggregated data.
(4) PEER may accept grants to assist in funding the study.
(5) PEER shall provide the Legislature with a final copy of the evaluation of the program before December 31, 2018. At the same time, the study shall also be placed in a prominent location on the PEER website.
(6) PEER must make its data and methodology available for public review while complying with the requirements of the Family Educational Rights and Privacy Act (20 USCS Section 1232(g)).
SECTION 8. Section 37-181-15, Mississippi Code of 1972, is amended as follows:
37-181-15. To ensure that students are treated fairly and kept safe, all eligible schools shall:
(a) Comply with the nondiscrimination policies set forth in 42 USCS 1981;
(b) Prior to a participating student's application for enrollment, provide parents with details of the school's programs, qualifications, experience, and capacities to serve students with special needs if they have such capacity;
(c) Comply with all health and safety laws or codes that apply to nonpublic schools;
(d) Hold a valid occupancy permit if required by their municipality;
(e) Have no public record of fraud or malfeasance;
(f) Offer participating students the option of taking a nationally standardized norm-referenced achievement test;
(g) Conduct criminal background checks on employees. The eligible school then shall:
(i) Exclude from employment any person not permitted by state law to work in a nonpublic school; and
(ii) Exclude from employment any person who might reasonably pose a threat to the safety of students.
SECTION 9. Section 37-181-17, Mississippi Code of 1972, is brought forward as follows:
37-181-17. (1) An eligible nonpublic school is autonomous and not an agent of the state or federal government and therefore:
(a) The State Department of Education or any other government agency shall not in any way regulate the educational program of a nonpublic school, postsecondary institution or educational service provider that accepts funds from the parent of a participating student;
(b) The creation of the Education Scholarship Account program does not expand the regulatory authority of the state, its officers, or any school district to impose any additional regulation of nonpublic schools, postsecondary institutions or educational service providers beyond those necessary to enforce the requirements of the program; and
(c) Eligible schools, postsecondary institutions and educational service providers shall be given the maximum freedom to provide for the educational needs of their students without governmental control. No eligible school, postsecondary institution or educational service provider shall be required to alter its creed, practices, admission policies or curriculum in order to accept participating students.
(2) In any legal proceeding challenging the application of this chapter to an eligible school, postsecondary institution or educational service provider the state bears the burden of establishing that the law is necessary and does not impose any undue burden on the eligible school, postsecondary institution or educational service provider.
SECTION 10. Section 37-181-19, Mississippi Code of 1972, is brought forward as follows:
37-181-19. The State Department of Education may receive and expend contributions from any public or private source to fund ESAs for participating students.
SECTION 11. Section 37-181-21, Mississippi Code of 1972, is brought forward as follows:
37-181-21. If any provision of this law or its application is held invalid, the invalidity does not affect other provisions or applications of this law which can be given effect without the invalid provision or application and to this end the provisions of this law are severable.
SECTION 12. Section 12, Chapter 441, Laws of 2015 is amended as follows:
Section 12. This act shall
take effect and be in force from and after its passage * * *.
SECTION 13. The following shall be codified as Section
37-181-20, Mississippi Code of 1972:
37-181-20. The provisions of this article requiring the State Department of Education to promulgate rules and regulations and to develop procedures, forms and any other policies for the administration of the provisions contained herein are subject to the Mississippi Administrative Procedures Act.
SECTION 14. This act shall take effect and be in force from and after its passage.