“Minimal” oversight of voucher program could put rules in jeopardy; Legislative Oversight Committee to consider rules on Thursday

On Thursday, August 19, the Joint Legislative Committee on Administrative Rules (“JLCAR”) is scheduled to vote on interim rules for the statewide education voucher program passed in the state’s budget bill in June. The interim rules will set requirements for the independent scholarship organization to administer the program, which creates taxpayer-funded “Education Freedom Accounts” for eligible families to use on private and religious school tuition, homeschooling costs, technology, and other expenses. 

The rules have gone through the first two steps: a vote by the State Board of Education and an initial review by JLCAR attorneys, who flagged a “substantive” number of conflicts with existing laws, ambiguities in the proposed rules (“the proposal”), and edits. A new version was submitted on Monday, August 16, by the NH State Board of Education and the NH Department of Education (NH DOE). 

Download the JLCAR attorney feedback here, and download the State Board’s updated rules here. 

The JLCAR team found that the proposed voucher program has:

  • “Minimal” oversight and “impermissible delegation of authority”: The law that created the voucher program provides “minimal” oversight by the state, and may represent an “impermissible delegation of authority.” The lack of oversight was a top concern for lawmakers and the public as well, but the concerns were dismissed by party leaders when the voucher bill was rolled into the larger statewide budget.
  • No requirements around criminal background checks: Neither the law nor the rules require that education service providers (private schools, tutors, or other service providers) require a criminal background check, even if employees have direct contact with children.
  • No protections for students’ personal information: The law does not address any protections regarding student privacy, and there are no requirements that the scholarship organization — or its contractors, service providers, or affiliates — comply with federal or state privacy laws regarding students’ personal, health or educational records.

If JLCAR votes to approve the interim rules on Thursday, the State Board is expected to adopt the rules at its next meeting on Friday, August 27. If JLCAR does not approve the rules, the NH DOE asserted that funding for the voucher program would be delayed beyond the start of the school year. 

Watch the JLCAR livestream on YouTube

“Substantive comments”

Though the statewide voucher program is among the most expansive in the country, the guidance for the program’s startup will be interim, or temporary, rules. JLCAR attorneys found “substantive” open questions, conflicts with existing laws, unclear wording, and grammatical errors in the original version from the NH State Board of Education, who unanimously approved them without discussion or questions

JLCAR attorneys also found seven potential pieces of legislation that would address ambiguities in the state’s voucher law. 

In the 10 page document, there were over 70 comments questioning the clarity, authority, and intent of the proposal, and over 45 grammatical, spelling, or wording edits. 

On Monday, the NH State Board of Education submitted a revised version of the rules that incorporated the suggested edits; however, the new rules appear to remove the language that prompted comments about clarity and authority rather than address them. The impact of these removals, at this time, is unclear. 

“Impermissible delegation of authority”

JLCAR attorneys underscored the lack of oversight in the program, which would allow the independent scholarship organization to distribute public tax dollars to parents, students, and education service providers through “education freedom accounts.”

The scholarship organization is responsible for creating the application, determining the eligibility of students and education service providers, determining and reporting cases of fraud, and other key elements of the program. 

JLCAR attorneys flagged numerous instances where the rules would allow for “oral rulemaking,” which means that the rule has a lack of clarity and potential for interpretation and, in this case, would delegate the rulemaking authority to the scholarship organization. These instances were in critical places, including the scholarship organization’s record retention policy, the student application form, and other places where clarity from the rules could provide guardrails to protect students and families. 

Criminal background checks

The latest version of the rules would require the scholarship organization to review “procedures, if any, used by education service providers to background check employees.” 

This means that there is no requirement for education service providers to perform criminal background checks on their employees, including those that would have direct contact with students. 

Current law requires all public and charter school employees, volunteers, and contractors that have direct student contact to undergo a criminal background check before being hired, or volunteering at the school. However, private schools are not currently required to perform background checks on employees or volunteers. 

Additionally, there is no requirement that a “negative” criminal background check — presumably meaning that the employee has a criminal record — would result in the service provider being barred from participating in the voucher program. In other words, a service provider could employ people with a criminal record — including those with direct student contact — and still receive state funding. 

Protections of personal information

Neither the statute nor the rules appears to include protections of student or family personal information, including health records, financial disclosures, and student records. 

JLCAR attorneys questioned whether HIPAA, the federal law that protects individuals’ health information, or the federal Family Educational Rights and Privacy Act (FERPA), the federal law that protects student records, apply to the scholarship organization, its contractors, education service providers, or affiliates since they are third party providers. 

School districts and charter schools are required to comply with FERPA when providing education service providers with the student’s school records. However, there are no provisions that the scholarship organization or the education provider comply with those statutes. 

Student data privacy has been an issue of interest among families, educators, and advocates, especially over the past year with the rise in educational technology software and data mining. During committee hearings, lawmakers and members of the public expressed concern that there was a lack of protections for students and their families; however, protections were not included in the statute or in the rules. 

What’s next?

JLCAR, which consists of five Senators and five Representatives, is scheduled to vote on the revised interim rules on Thursday, August 19. Since they are interim rules, they are temporary and on a fast-tracked approval timeline. 

There is no requirement for a public hearing at this time, but the committee is expected to accept written comments. While there is a public comment period at the start of the meeting, there is no requirement that all those who wish to speak have the opportunity to do so because it is not a public hearing. 

If approved, the rules will go to the State Board of Education for adoption. If denied, the rules could go back to the NH DOE for further revision, or the NH DOE could start the regular rulemaking process. 

It is important to note that JLCAR does not vote on whether the rules are good or bad policy — only that they meet four specific criteria. 

For the purposes of this explanation, a “proposal” refers to the entire package of rules that are proposed by a department. A “rule” is an individual element of a proposal. JLCAR reviews rules individually, ensuring each part complies with the four criteria below. 

State law is very specific as to what the committee is allowed to consider.

JLCAR must ensure that the rule:

  1. Is within the authority of the agency, meaning state laws specify that the department can create the rules and that the rules do not go beyond what the legislature has allowed of the department. 
  2. Is within the intent of the legislature, meaning that the proposed rules do not conflict with any other state or federal laws. 
  3. Is determined to be in the public interest, which does not mean that it is good or bad policy. Rather, the proposed rules must be clear and understandable, uniformly applied, and the department must have taken into consideration comments by the public during the public hearing at the relevant department (before it went before the Committee). 
  4. Has an economic impact that isn’t explained in the fiscal impact statement. Each rule proposal must have a fiscal impact statement, which outlines the costs to all parties that would be affected by the rules to avoid unfunded mandates. JLCAR makes sure that all of the costs are outlined in the fiscal impact statement. 

The meeting on Thursday, August 19, will be livestreamed from the State of New Hampshire’s YouTube channel. Reaching Higher NH will also provide updates on the meeting on Twitter and on our website. Sign up for our newsletter here and follow us on Twitter to stay up to date!