The Joint Legislative Committee on Administrative Rules (JLCAR), the state’s administrative oversight committee, voted to approve two sets of education rules on Friday, February 18: a set of rules proposed by the State Board of Education that would restrict the use of remote learning for public schools, and a set of conditional rules that govern the state’s school voucher program.
The State Board of Education held an emergency meeting on Friday afternoon to formally adopt both sets of rules, effective immediately.
Remote Learning Rules
JLCAR unanimously approved the new remote learning rules on Friday, with little discussion and no public comment.
Under the proposed distance learning rules, remote learning days would only count towards the 180-day requirement during inclement weather or if a parent or guardian specifically requests them. Remote learning days due to COVID outbreaks, staffing shortages, or other factors would have to be made up at the end of the year.
While the COVID pandemic has been waning in the state for the past few weeks, school districts around the state had to temporarily pivot to remote learning in the fall and winter due to illnesses and staff shortages, particularly after school breaks.
Legislation has been proposed to block the rules: Both the House and Senate have put forward bills that would place authority to determine instructional delivery in the hands of local school boards. Senate Bill (SB) 235 was killed on Wednesday, Feb. 16, by the full chamber, but the House version, House Bill (HB) 1113, is still in the House Education Committee.
School Voucher Rules
The Committee also approved the statewide school voucher program rules by a vote of 6-3. The rules made several changes to the current version, passed in August, which surfaced over 70 significant concerns and questions.
The interim rules did not include oversight of the scholarship organization by the state, nor did they include any protections for students’ personal information, including health, financial, and school records data. There were also concerns around special education services and rights, as well as concerns that background checks are not required for education provider staff, including those who come in direct contact with children.
The Committee and staff had questions about the proposed rules, including the scholarship organization’s ability to approve spending that may not be included in the list of accepted uses. The rules include references to “other educational expenses approved by the scholarship organization.”
“We’re concerned that a lack of criteria here would allow carte blanche to the scholarship organization to approve or disapprove other items,” Michael A. Morrell, Administrative Rules Acting Director, said during the committee meeting. “We’re concerned that the scholarship organization is actually a vendor for the state and is spending state money without accurate direction.”
Education Commissioner Frank Edelblut responded that state statutes would guide decisions around items not included in the list of accepted uses. “We think that there is appropriate constraining language for the scholarship organization,” he said.
The Committee also raised concerns that the rules do not specify that taxpayer dollars can’t be spent on religious instruction, which would violate the state’s Constitution. According to testimony submitted by the ACLU-NH, the rules are not clear, which could “create the environment where private religious schools will feel that… funds can be used for religious instruction.” They continue:
“This provision merely says that a parent must agree, in receiving EFA funds, to provide an education in certain core knowledge domains. Nothing states that EFA funds cannot be used for religious instruction either inside or outside these core domains. It should also go without saying that religious instruction can particularly seep into some of the core domains referenced in this statute, including in ‘science’ and ‘health.’”
When the oversight committee pressed the Department of Education on the lack of clarity around religious instruction, Commissioner Edelblut responded, “We believe that enumerating everything it can’t be spent on would be confusing… We think that [by] picking one item that would be disallowed … and fairly ubiquitously understood… that we create confusion for those families.”
The legislative oversight committee approved the rules with the request that the Department of Education work with the legislature on the concerns that have been noted and report back to the legislature in more detail on the topic of religious instruction and constitutionality.
Changes in the School Voucher Rules
The revised rules presented to the Committee today made some changes to the rules, including:
- Requiring that the scholarship organization post the background check policies of all education service providers. The rules still do not require education service providers to have a background check policy mandating that staff undergo a criminal record orand background check or that a negative background check would disqualify a staff member from having direct or indirect contact with children.
- Requiring the scholarship organization to treat students’ personal information “in a manner consistent with” the procedures that schools use. According to the NH Department of Education, the scholarship organization is not bound by federal data privacy laws, including FERPA for education-related information and HIPAA for health-related information. The scholarship organization may receive both types of data to verify student eligibility and to administer the program.
Outstanding Legislative Concerns for School Voucher Program
The revised rules do not address several special education-related comments or concerns, and state attorneys repeated several areas that may require action:
- RSA 194-F:1, XII and throughout. “Scholarship organization” is defined as singular not plural, and the statute is written as if there is one organization. Additionally, the parent and education service provider advisory commission appears to be one commission, not multiple commissions established for each organization.
- It is also unclear whether the provisions of RSA 91-A apply to the meetings of the Commission because it has been established by statute in RSA 194-F:5, I, and so, clarification in the statutes may be needed.
- RSA 194-F:2, VI. The statute states EFA funds shall not constitute taxable income and may conflict with federal tax law;
- RSA 194-F:3, II. Requires the organization to develop a standard application; however, if there is more than one organization, it is not clear whether the standardized form is the same across the organizations;
- The statute permits subcontracting for certain services and does not require approval to do so. See RSA 194-F:4, II., RSA 194-F:4, VI. (b), and RSA 194-F:4, X. If the contracts need Governor and Executive council approval, the statute may need to be clarified;
- Potential delegation issues:
- The statute does not address the role of the Board of Education, and oversight by the Department of Education is minimal. For example, the Board does not provide any criteria to the scholarship organization for RSA 194- F:2, II(0) which allows the organization to approve any other educational expenses. The public comment submitted indicates that potential violations of the NH Constitution may result if funding is provided for religious instruction.
- The roles of the Board, the Department, and the scholarship organization may need to be clarified, and if the Legislature wants the Board or Department to perform oversight it may need to affirmatively state the scope of the oversight. See generally RSA 194-F:4. See also, the Department’s cover letter to the amended conditional approval request in which it seems to presume that the Legislature has delegated much of the implementation of the program to the vendor when RSA 194-F:4, XV requires the Department to have administrative rules in order to administer the program. Some details on how this program will be administered along with oversight of the vendor have not been fleshed out in the rule proposal and the Department’s position appears to be that it is not needed.
- The statute grants to the scholarship organization authority that is typically given to the executive agency and may represent an impermissible delegation of authority. RSA 541-A:22 states that an agency shall not by rule delegate its rulemaking authority to anyone other than the agency named in the statute. RSA 194-F:4, XV only grants the Department rulemaking authority necessary for the administration of the statute. The policies and procedures developed by the organization will not have the legal effect of administrative rules, and so, the scope of oversight by the Board or Department may need to be affirmatively stated.
- There is no provision in the statute to require that education service providers get a criminal background check or that a negative background check will result in a bar from participation in the EFA program.
- The statute does not include protections for personal student information including health care information the scholarship organization may have or obtain. While the rules do not affirmatively state that parents are required to provide the information for eligibility, they state that the organization shall have access to confidential student information and that it will be protected as LEAs protect the same information. The statute may need to affirmatively outline protections of student confidential information.