S.B.
57
127th General Assembly
(As Introduced)
Sens. Coughlin, Mumper
BILL SUMMARY
· Creates the Special Education Scholarship Program to provide scholarships for disabled children in grades pre-kindergarten through 12 to attend alternative public or private special education programs.
· Requires the Department of Education to conduct a "formative evaluation" of the program by December 31, 2009.
· Requires the Department of Education once every two years to prepare an analysis of the special education funding weights.
CONTENT AND OPERATION
Under the federal Individuals with Disabilities Education Act (IDEA), children identified as disabled are entitled to a "free appropriate public education" that provides special education and related services to enable them to benefit from educational instruction.[1] Under both the IDEA and state law, an "individualized education program" (IEP) must be developed for each child identified as disabled. The IEP specifies the services to which the child is entitled and are therefore guaranteed by law.[2] A child's school district may provide the services specified in the IEP, or it may enter into an agreement with another district or entity to provide those services.
Under Ohio law, school districts and community ("charter") schools receive additional per-pupil funding on top of the base-cost formula amount for each special education student because of the extra expenses associated with providing educational services. Special education students are assigned to one of six possible categories according to the severity of their disabilities. Each category has a corresponding weight, which is expressed as a percentage of the base-cost formula amount.[3] The additional funds generated by the special education weights are shared by the school district and the state in the same percentage as the base-cost funding.[4]
(R.C. 3310.52, 3310.53, and 3310.57)
The bill establishes the Special Education Scholarship Program to provide scholarships on behalf of disabled children to attend special education programs other than those offered by their school districts. The program applies to any identified disabled child in grades pre-kindergarten through 12. A scholarship may be used to pay the expenses of a public or private provider of special education programs for implementation of the child's IEP. While a child is using a scholarship, the school district in which the child would otherwise be enrolled has no obligation to provide the child with a free appropriate public education. But the bill also specifies that if that district has agreed to provide some services for the child, or if the district is required by separate law to provide some services, including transportation services, the district may not discontinue them pending completion of any administrative proceedings regarding those services. (See "Continuation of some school district services" below.) The district also has a continuing obligation to develop the child's IEP.
"Qualified special education child" (R.C. 3310.51(I), 3310.61, and 3310.62). Under the bill, a child is eligible, or "qualified," for a special education scholarship if the child's resident school district has identified the child as disabled and developed an IEP for the child. In addition, the child must either (1) have been enrolled in the district in which the child is entitled to attend school in any grade from pre-kindergarten through 12 in the school year prior to the year in which the scholarship would first be used or (2) be eligible to enroll for services from that district in the school year in which the scholarship would first be used. The bill explicitly specifies that a child attending a public special education program under an agreement between the child's school district and the program provider or a child attending a community school may apply for a scholarship.[5]
A child is not eligible for a scholarship for the first time while the child's IEP is being developed or while any administrative or judicial proceedings regarding the content of that IEP are pending. On the other hand, the bill also specifies that, in the case of a child for whom a scholarship already has been awarded, development of subsequent IEPs and the prosecuting of administrative or judicial mediation or proceedings with respect to any of those subsequent IEPs do not affect continued eligibility for scholarship payments. In other words, a scholarship will not be awarded and paid until the child's IEP is in place and it is clear that there are no challenges to that IEP. But future challenges to subsequent IEPs will not disqualify the child for a scholarship.
"Eligible applicant" (R.C. 3310.51(D)). The bill permits the following individuals to apply for and accept a scholarship for a qualified special education child:
(1) The child's custodial natural or adoptive parent or parents. The bill specifically excludes a parent whose custodial rights have been terminated.
(2) The child's guardian;
(3) The child's custodian other than the parent;
(4) The child's grandparent if the grandparent is an attorney-in-fact under a power of attorney or if the grandparent has executed a caregiver affidavit (both under continuing law);[6]
(5) The child's "surrogate parent" appointed under state and federal special education law;[7] or
(6) The child, if the child does not have a custodian or guardian and is at least 18 years old.
Scholarships may be used to pay for special education programs provided by alternative public providers or by private entities registered with the Superintendent of Public Instruction.
Alternative public providers (R.C. 3310.51(A)). An alternative public provider must be either (1) a school district other than the district obligated to educate the disabled child (or the child's resident school district, if different) or (2) another public entity that agrees to enroll the child and implement the child's IEP. In addition, the alternative public provider must be an entity to which the eligible applicant, rather than a school district or other public entity, owes fees for the services provided to the child. In other words, an eligible applicant cannot use a scholarship to enroll a child in a school district or other public entity to which the child's school district would send the child for special education services because, in that case, the child's district would be required to pay the receiving district or entity for the services provided to the child. Neither may an eligible applicant use a scholarship to enroll the child in a community school because the community school, as a public school, would receive funds to educate the child even without the scholarship. The eligible applicant must use the scholarship to pay for special education and related services provided by a school district or public entity from which the eligible applicant otherwise would not receive those services for the child free of charge.
Registered private providers (R.C. 3310.58 and 3310.59). Nonpublic schools and other private entities may accept scholarship children under the bill, but first they must register with the Superintendent of Public Instruction. To be registered by the Superintendent, the private school or entity must meet the following requirements:
(1) Its special education program meets the minimum education standards established by the State Board of Education;[8]
(2) It does not discriminate on the basis of race, ethnicity, national origin, religion, sex, disability, age, or ancestry;
(3) It agrees to conduct criminal records checks of applicants for employment positions that are responsible for the care, custody, or control of a child, if it is not already required to do so pursuant to law;[9]
(4) Its teaching and nonteaching professionals, or those employed by a subcontractor providing special education services on its behalf, hold credentials determined by the State Board to be appropriate for working with the scholarship children enrolled in the program;
(5) It meets applicable health and safety standards for school buildings;
(6) It agrees to retain any documentation required by the Department of Education;
(7) It demonstrates fiscal soundness to the Department's satisfaction; and
(8) It agrees to meet any other requirements for registration specified by the State Board.
If the Superintendent of Public Instruction determines that a private school or entity no longer meets these criteria, the Superintendent must revoke its registration. The school or entity must be allowed a hearing prior to revocation.
(R.C. 3310.56)
Each scholarship is worth the lesser of (1) the total fees charged by the provider or (2) the amount that otherwise would be calculated for state and local funding for the school district's provision of special education and related services to the child. The latter amount comprises the base-cost and special education funding, both state and local shares, that would be calculated for the student under the state formulas. For example, if the program had been in operation during FY 2007, for a Franklin County student who has been identified as having a visual disability, the latter amount would be approximately $14,165.[10]
(R.C. 3310.52, 3310.54, 3310.55, 3310.57, and 3317.03(A) and (B))
The Department of Education must make periodic payments throughout the school year to an eligible applicant for each qualified special education child, until the full amount of the scholarship has been paid. The amount of the scholarship is deducted from the state aid account of the school district in which the child is entitled to attend school. That district is authorized to count the child in its formula ADM and special education ADM.[11] If the child is a pre-kindergarten student, the bill specifies that child be counted in a district's "preschool scholarship ADM," so the district is credited for the child before the scholarship deduction.
The scholarship may be used only to pay fees charged by the alternative special education program for implementation of the child's IEP. The Department must prorate a child's scholarship amount if the child withdraws from the alternative program before the end of the school year.
(R.C. 3310.60)
Under the bill, scholarship children are entitled to transportation to and from the alternative special education programs they attend in the same manner as disabled students attending nonpublic schools.
Continuing law requires school districts to provide transportation to nonpublic school students in grades K to 8 who reside in the district and live more than two miles from the school they attend. Districts may also transport high school students to and from their nonpublic schools. Districts must provide transportation for all students who "are so crippled that they are unable to walk to and from the school . . . which they attend." A district, however, is not required to transport students of any age to and from a nonpublic school if the direct travel time by school bus from the district school the student would otherwise attend to the nonpublic school is more than 30 minutes.[12] In the case of some special education students, transportation might be mandated by their IEPs.
(R.C. 3310.60 and 3310.62(C))
The bill provides that, if the resident school district of a child awarded a scholarship has agreed to provide some services for the child or, if the district is required by law to provide some services for the child, including transportation services as described above, the district may not discontinue the services pending completion of any administrative proceedings regarding those services. It also specifies that the prosecuting, by the eligible applicant on behalf of the child, of administrative proceedings regarding those services does not affect the applicant's and the child's continued eligibility for scholarship payments.
(R.C. 3310.63; Section 3)
The Special Education Scholarship Program must be operational for the 2007-2008 school year. The State Board of Education must adopt rules in accordance with the Administrative Procedure Act so that they are in effect for that school year. Those rules must include application procedures and deadlines and standards and procedures for the registration of private providers of special education programs.
(Section 4)
The bill requires the Department of Education to conduct a "formative evaluation" of the Special Education Scholarship Program and to report its findings to the General Assembly by December 31, 2009. In doing so, the Department is required to the extent possible to gather comments from parents who have been awarded scholarships under the program, school district officials, and representatives of registered private providers, educators, and representatives of educational organizations. The Department must use quantitative and qualitative analyses in conducting its evaluation.
(R.C. 3317.013)
As noted above,
combined state and local funding for most special education and related
services for school districts and community schools is calculated using one of
six specific weights that are tied to recognized categories of disabilities. Each weight represents an expression of additional costs
attributable to the special circumstances of the students in each
category. The weights range from 0.2892
for a speech and language disabled student to 4.7342 for a student who is both
visually and hearing disabled, who is autistic, or who suffers from a traumatic
brain injury. (The weights currently
are phased in at 90% of their stated values.)[13]
The bill requires the Department of Education, by January 31 of each odd-numbered year, beginning in 2009, to prepare an analysis of whether the special education funding weights continue to accurately reflect the cost of providing special education and related services to students in each of the six categories.
COMMENT
Am. Sub. H.B. 66 of the 126th General Assembly (the 2005-2007 biennial budget act) reauthorized, for fiscal years 2006 and 2007, a temporary pilot program to pay scholarships to the parents of certain autistic children, which may be used for services at public or nonpublic special education programs that are not operated by or for the child's resident school district. The pilot program was originally established in Am. Sub. H.B. 95 of the 125th General Assembly (the 2003-2005 biennial budget act). H.B. 66 also increased the maximum amount of the scholarship to $20,000 (from $15,000 under prior law). Am. Sub. H.B. 699 of the 126th General Assembly codified and made permanent the pilot program and named it the "Autism Scholarship Program" (effective March 29, 2007).
The proposed Special Education Scholarship Program contains essentially the same concepts of the smaller Autism Scholarship Program and applies those scholarship concepts to children of all categories of disability. The bill does not affect the Autism Scholarship Program.
HISTORY
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ACTION |
DATE |
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Introduced |
02-20-07 |
s0057-i-127.doc/kl
[1] See 20 U.S.C. 1400
et seq. Related services include
transportation and support services such as speech-language pathology and
audiology services, psychological services, physical and occupational therapy,
counseling services, and diagnostic medical services (20 U.S.C. 1401(26)).
[2] See 20 U.S.C. 1414
and R.C. 3323.01 (not in the bill). The
IEP is developed by a team including representatives of the child's resident
school district (or community school) and the child's parent or the parent's
counsel.
[3] R.C. 3317.01. The special education weights currently are
being phased in over an indefinite period.
In FY 2006 and 2007, the weights are paid at 90% of their full
amounts. The law does not specify
whether any phase-in percentage will be applied after FY 2007.
[4] See R.C.
3317.022. School districts may receive
an additional "catastrophic cost" subsidy for some special education
students if the district's costs to serve the students exceed a statutorily
specified threshold (R.C. 3317.022(C)(3)).
[5] Under the bill, a
community school is not considered a child's school district of residence (R.C.
3310.51(L)). Therefore, any IEP
developed by the community school would not qualify the child to receive a
scholarship. It is not clear under the
bill whether a community school student would need to enroll in a district
school to receive a new district-developed IEP prior to receiving a
scholarship.
[6] Current law, not changed
by the bill, permits a grandparent to be named the attorney-in-fact in a power
of attorney executed by a child's parent or permits a grandparent to execute a
caregiver affidavit, if the child's parents cannot be located after reasonable
attempts to do so. Either instrument
authorizes the grandparent, with whom the child lives, to register the child in
school and to seek medical care for the child. (See R.C. 3109.51 to 3109.80,
none in the bill.)
[7] Under state and federal
law, a public agency responsible for the care of a disabled child must appoint
a surrogate parent if it determines that no parent of the child can be found,
the child is "a ward of the state," or the child is a "homeless
youth." That surrogate parent then
is responsible to make decisions regarding the child's education that otherwise
would be the responsibility of the child's parent. (See R.C. 3323.05(B) and 3323.051 (neither section in the bill)
and 34 C.F.R. 300.519.)
[8] The State Board must
prescribe minimum standards for public and private elementary and secondary
schools. These standards cover teacher
certification, administrative organization, graduation requirements,
curriculum, assessments, health and safety issues, length of the school day,
and other topics. (See R.C. 3301.07(D),
not in the bill, and Ohio Administrative Code Chapter 3301-35.) Community schools are not subject to some of
those standards.
[9] Under the bill,
private entities must conduct criminal records checks in the same manner as
must chartered nonpublic schools under continuing law. While the bill requires a private school or
entity to conduct criminal records checks of future applicants prior to hiring,
it does not mandate that the school or entity request records checks of current
employees.
[10] This amount consists of
$5,560 in base-cost funding plus $8,605 in "category three" special
education weighted funding. Franklin
County has a relatively high cost-of-doing-business factor. To offset the recent phasing down of the
cost-of-doing-business in the base-cost formula, school districts in some
counties with lower factors may have their base-cost payments calculated based
on the FY 2005 formula amount of $5,169 multiplied by their higher FY 2005
factor, if that calculation yields a greater amount than the current
formula. (See R.C. 3317.012 and
3317.02(N), neither section in the bill, and 3317.013 and 3317.022(A).)
[11] Formula ADM is the
number of full-time-equivalent students reported as attending school in the
district during the first full week of October and the first full week of
February. Special education ADM is the
portion of that number for which the district must provide special education
and related services. The scholarships
deducted from a district's account count toward the minimum amount the district
must spend for special education and related services and for speech language
pathology services for its disabled students under continuing law (R.C.
3317.022(C)(5) and (6)). Scholarship
students in grades K to 12 are counted in a school district's poverty index for
the state poverty-based assistance subsidy, and in a district's ranking for
purposes of the state parity aid subsidy (R.C. 3317.029 and 3317.0217). Pre-kindergarten students are not counted at
all for purposes of the last two subsidies.
[12] R.C. 3327.01, not in
the bill. These are the same
requirements that apply to the transportation of students to and from public
schools. When transportation by the
district is impractical, the district may offer payment to a student's parent
instead of providing the transportation.
[13] See note 3 above.