This Murky Area MIGHT Affect Everyone

According to the Senate version: SB503, Scholarship Amount- Allowable uses pg. 3-4

To receive the Scholarship or ESA the parent of the student applies to the Department of Education (DOE). It must be ensured that the student will satisfy the compulsory school attendance requirement by providing documentation of enrollment in a private school (I, II, III, IV, or V nonpublic category) or a public in a local education agency (LEA) outside the students normal assigned district (the Senate bill provides for movement between LEA’s as space allows).

In this section, of greatest interest to Private school students and Category IV Umbrella homeschool students is the following on pg. 4 (4) dealing with special education services.  An ESA eligible student “by participating in the program through enrollment in a private school does not retain the right to receive special education and related services through an individualized education program” BUT “the students may be eligible under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1414) to receive equitable services through an individualized service plan.” (Pg 4)

In the House Education Committee meeting there was significant discussion about the use of IDEA federal funds in private schools.  The Commissioner of Education, the Deputy Commissioner, and House legal staff and even legal staff from the Department of Education were not able to answer definitively if the federal funds being used by one ESA student in a private school or homeschool would bring the entire school or the homeschool under federal regulations. See below for further information on this complicated issue. This is apparently an open question even though the legislation passed both the chambers with this language in place.  

While a soon to be attached visual will likely be required to understand the following flow of funding for service to children with disabilities in either public, private, or homeschools, the following description walks us through the present practice in schools and the proposed flow under the new EFSA program.  Currently, children with a disability qualify for funding to cover services such as speech therapy, tutoring, occupational therapy, and other therapies through the implementation of an IEP (Individualized Education Program) funded by the state and enacted by the public school in the LEA.  Under both current law and the proposal in SB503 under consideration, if a public-school student with an IEP leaves the public school to attend either a private school or a homeschool, they lose access to that IEP and its services/funding.  In the private school or the homeschool, the child with a disability can instead access funding for similar services through a federal program called IDEA (Individuals with Disabilities Education Act) that is then titled an ISP (Individualized Service Plan).  These facts are clear and seem to be corroborated by testimony by the legal services representative of the Department of Education during the recent House Education Committee discussion of HB 1183 on March 6^th, 2023. 

From this point, the implications of this funding are unclear both in the language of HB1183 and SB503 (sister bills).  Based on the U.S. Supreme Court case Grove City v Bell (1984) (https://time.com/6835607/grove-city-supreme-court-conservative-education/) an institution of higher education which accepts federal grant money for student tuition must agree to certain Title IX non-discriminatory regulations on that money by signing a form.  If that same legal ruling is applied to a child with a disability who receives service funding through the IDEA federal funding, what regulations will be required of the student, their parent, or their private school as a student in a private school or umbrella school?  It is possible the entire school comes under federal regulations but the legislators in attendance at the committee meeting did not receive a clear answer from their own legal counsel nor from the legal services representative for the Department of Education. 

Prior to passing the legislation as written in SB503/HB1183 which follows the same legal logic of severing IEP service funding when a student leaves a public school for a private or homeschool, parents and private schools need to understand how they may be impacted by federal regulations should a student with IDEA funding attend their school or become a part of their homeschool. They need clear answers to the following questions.

1. For a student with a disability who receives EFSA funds and then receives services funded by IDEA through a public school or its LEA, what strings of regulation will they be expected to comply with?
2. For the same student, what strings of regulation will be applied to the private school or umbrella school in which they are enrolled?
3. For the school noted in #2, will other students be impacted by such regulations?
4. Will the private school ever be the provider of such services and thus regulated by the federal government through IDEA?
5. Will the money for IDEA ever be distributed directly to the parent and what are the regulatory regulations for the parents and/or their umbrella school in such a situation?