Third Substitute H.B. 115

This document includes House Floor Amendments incorporated into the bill on Mon, Mar 1, 2004 at 12:32 PM by kholt. -->

Representative Merlynn T. Newbold proposes the following substitute bill:

1 CARSON SMITH SPECIAL NEEDS
2 SCHOLARSHIPS
3 2004 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: J. Morgan Philpot
6
7 LONG TITLE
8 General Description:
9 This bill creates a program to award scholarships to students with disabilities who
10 attend a private school.
11 Highlighted Provisions:
12 This bill:
13 . specifies criteria for qualifying for a scholarship;
14 . specifies criteria for private schools to enroll scholarship students;
15 . specifies the amount, timing, and form of scholarship payments;
16 . requires the State Board of Education to make rules;
17 . gives the State Board of Education enforcement authority; and
18 . requires the Legislature to annually appropriate money from the General Fund for
19 scholarship payments.
20 Monies Appropriated in this Bill:
21 This bill appropriates:
22 . as an ongoing appropriation subject to future budget constraints, $100,000 from the
23 Uniform School Fund for fiscal year 2004-05 to the State Board of Education.
24 Other Special Clauses:
25 None

26 Utah Code Sections Affected:
27 AMENDS:
28 53A-3-410, as last amended by Chapter 377, Laws of Utah 1999
29 ENACTS:
30 53A-1a-701, Utah Code Annotated 1953
31 53A-1a-702, Utah Code Annotated 1953
32 53A-1a-703, Utah Code Annotated 1953
33 53A-1a-704, Utah Code Annotated 1953
34 53A-1a-705, Utah Code Annotated 1953
35 53A-1a-706, Utah Code Annotated 1953
36 53A-1a-707, Utah Code Annotated 1953
37 53A-1a-708, Utah Code Annotated 1953
38 53A-1a-709, Utah Code Annotated 1953
38a H 53A-1a-710, UTAH CODE ANNOTATED 1953 h
39
40 Be it enacted by the Legislature of the state of Utah:
41 Section 1. Section 53A-1a-701 is enacted to read:
42 Part 7. Carson Smith Scholarships for Students with Special Needs Act
43 53A-1a-701. Title.
44 This part is known as the "Carson Smith Scholarships for Students with Special Needs
45 Act."
46 Section 2. Section 53A-1a-702 is enacted to read:
47 53A-1a-702. Findings and purpose.
48 (1) The Legislature finds that:
49 (a) the state system of public education as established and maintained under the state
50 constitution is charged with making available a free public education for all children of the
51 state;
52 (b) students with disabilities have special needs that merit educational alternatives
53 which will allow students to learn in an appropriate setting and manner;
54 (c) those needs may include teachers trained in special teaching methods, small class
55 sizes, and special materials, equipment, and classroom environments;
56 (d) the establishment of this scholarship program is justified on the basis of funding the

57 special needs of students with disabilities as with other programs similarly funded by the state
58 for people with disabilities; and
59 (e) nothing in this part shall be construed as a basis for granting vouchers or tuition tax
60 credits for any other students, with or without disabilities.
61 (2) The purpose of this part, in accordance with the best interests of the taxpayers and
62 citizens of this state, is to encourage educational opportunities and provide limited financial
63 assistance for students with disabilities whose parents enroll their child in a private school
64 when it is determined that the student's needs are best met by the private school.
65 Section 3. Section 53A-1a-703 is enacted to read:
66 53A-1a-703. Definitions.
67 As used in this part:
68 (1) "Assessment team" means a team consisting of:
69 (a) the student's parent or guardian;
70 (b) the student's classroom teacher;
71 (c) special education personnel from the student's resident school district; and
72 (d) if available, special education personnel from the private school at which the
73 student is enrolled.
74 (2) "Board" means the State Board of Education.
75 (3) "Eligible private school" means a private school that meets the requirements of
76 Section 53A-1a-705 .
77 (4) "IEP" means a written statement for a student with a disability that is developed,
78 reviewed, and revised in accordance with board rules and the Individuals with Disabilities
79 Education Act, 20 U.S.C. Sec. 1400 et. seq.
80 (5) "Scholarship student" means a student who receives a scholarship under this part.
81 (6) "Value of the weighted pupil unit" means the amount specified in Section
82 53A-17a-103 that is multiplied by the number of weighted pupil units to yield the funding level
83 for the basic state-supported school program.
84 Section 4. Section 53A-1a-704 is enacted to read:
85 53A-1a-704. Scholarship program created -- Qualifications.
86 (1) The Carson Smith Scholarship Program is created to award scholarships to students
87 with disabilities to attend a private school.

88 (2) To qualify for a scholarship:
89 (a) the student's custodial parent or legal guardian shall reside within Utah;
90 (b) the student shall have one or more of the following disabilities:
91 (i) mental retardation;
92 (ii) a hearing impairment;
93 (iii) a speech or language impairment;
94 (iv) a visual impairment;
95 (v) a serious emotional disturbance;
96 (vi) an orthopedic impairment;
97 (vii) autism;
98 (viii) traumatic brain injury;
99 (ix) other health impairment; or
100 (x) specific learning disabilities;
101 (c) the student shall be at least five years of age before September 2 of the year in
102 which admission to a private school is sought and under 19 years of age on the last day of the
103 school year as determined by the private school, or, if the individual has not graduated from
104 high school H [ with a regular diploma ] h , will be under 22 years of age on the last of the school
104a year
105 as determined by the private school; and
106 (d) except as provided in Subsection (3), the student shall:
107 (i) be enrolled in a Utah public school in the school year prior to the school year the
108 student will be enrolled in a private school;
109 (ii) have an IEP; and
110 (iii) have obtained acceptance for admission to an eligible private school.
111 (3) The board shall provide, by rule, for a waiver from the requirements of Subsection
112 (2)(c) in the following circumstances:
113 (a) the student is enrolled or has obtained acceptance for admission to an eligible
114 private school;
115 (b) the private school specializes in serving students with disabilities; and
116 (c) an assessment team is able to readily determine with reasonable certainty:
117 (i) that the student has a disability listed in Subsection (2)(b) and would qualify for
118 special education services, if enrolled in a public school; and

119 (ii) for the purpose of establishing the scholarship amount, the appropriate level of
120 special education services which should be provided to the student.
121 (4) (a) To receive a scholarship:
122 (i) the parent of a student meeting the qualifications of Subsection (2) shall submit an
123 application for the scholarship to the school district within which the student is enrolled:
124 (A) at least 60 days before the date of the first scholarship payment; and
125 (B) that contains a certification by the parent that the selected school is qualified and
126 capable of providing the level of special education services required for student; and
127 (ii) the parent of a student seeking a waiver pursuant to Subsection (3) shall submit an
128 application for the scholarship to the student's resident school district at least 60 days before
129 the date of the first scholarship payment.
130 (b) The board may provide, by rule, for a waiver of the 60-day application deadline.
131 (5) (a) The scholarship application form shall include a statement disclosing to
132 applicants that a private school may not provide the same level of special education services
133 that are provided in a public school.
134 (b) Upon acceptance of the scholarship, the parent assumes full financial responsibility
135 for the education of the scholarship student.
136 (c) The creation of the scholarship program or granting of a scholarship does not:
137 (i) imply that a public school did not provide a free and appropriate public education
138 for a student; or
139 (ii) constitute a waiver or admission by the state.
140 (6) (a) A scholarship shall remain in force for three years.
141 (b) A scholarship may be extended for an additional three years, if:
142 (i) the student is evaluated by an assessment team; and
143 (ii) the assessment team determines that the student is disabled and would qualify for
144 special education services, if enrolled in a public school.
145 (c) The assessment team shall determine the appropriate level of special education
146 services which should be provided to the student for the purpose of setting the scholarship
147 amount.
148 (d) A scholarship may be extended for successive three-year periods as provided in
149 Subsections (6)(b) and (6)(c) H :
149a (i) h until the student graduates from high school H ; OR
149b (ii) IF THE STUDENT DOES NOT GRADUATE FROM HIGH SCHOOL, UNTIL THE STUDENT IS
149c AGE 22 h .

150 (7) A student's parent, at any time, may remove the student from a private school and
151 place the student in another eligible private school and retain the scholarship.
152 (8) A scholarship student may not participate in a dual enrollment program pursuant to
153 Section 53A-11-102.5 .
154 Section 5. Section 53A-1a-705 is enacted to read:
155 53A-1a-705. Eligible private schools.
156 (1) To be eligible to enroll a scholarship student, a private school may be a sectarian or
157 nonsectarian school and shall:
158 (a) have a physical location in Utah where the scholarship students attend classes and
159 have direct contact with the school's teachers;
160 (b) demonstrate fiscal soundness in accordance with Subsection (4);
161 (c) comply with the antidiscrimination provisions of 42 U.S.C. Sec. 2000d;
162 (d) meet state and local health and safety laws and codes;
163 (e) disclose to the parent of each prospective student, before the student is enrolled, the
164 special education services that will be provided to the student, including the cost of those
165 services;
166 (f) (i) administer an annual assessment of each scholarship student's academic
167 progress; H [ and ] h
168 (ii) report the results of the assessment to the student's parent; H AND
168a (iii) MAKE THE RESULTS AVAILABLE TO THE ASSESSMENT TEAM EVALUATING THE
168b STUDENT PURSUANT TO SUBSECTION 53A-1a-704(6): h
169 (g) employ or contract with teachers who:
170 (i) hold baccalaureate or higher degrees;
171 (ii) have at least three years of teaching experience in public or private schools; or
172 (iii) have special skills, knowledge, or expertise that qualifies them to provide
173 instruction:
174 (A) in the subjects taught; and
175 (B) to the students taught;
176 (h) provide to parents the relevant credentials of the teachers who will be teaching their
177 students; and
178 (i) adhere to the tenets of its published disciplinary procedures prior to the expulsion of
179 a scholarship student.
180 (2) A home school is not eligible to enroll scholarship students.

181 (3) (a) Except as provided in Subsection (3)(b), a private school intending to enroll
182 scholarship students shall submit an application to the board by May 1 of the school year
183 preceding the school year in which it intends to enroll scholarship students.
184 (b) A private school intending to enroll scholarship students in the 2004-05 school year
185 shall submit an application by June 15, 2004.
186 (4) To initially demonstrate financial soundness, the board may require a private school
187 to obtain an audit and opinion letter from an independent certified public accountant showing
188 that the school is insured and has sufficient funds to maintain operations for the full school
189 year.
190 (5) The board shall:
191 (a) approve a private school's application to enroll scholarship students, if the private
192 school meets the eligibility requirements of this section; and
193 (b) make available to the public a list of the eligible private schools.
194 Section 6. Section 53A-1a-706 is enacted to read:
195 53A-1a-706. Scholarship payments.
196 (1) (a) Scholarships shall be awarded by the board subject to the availability of money
197 appropriated by the Legislature for that purpose.
198 (b) The Legislature shall annually appropriate money to the board from the General
199 Fund to make scholarship payments.
200 (c) If monies are not available to pay for all scholarships requested, the scholarships
201 shall be allocated in accordance with board rules, with preference given to students who
202 received scholarships in the previous school year.
203 (2) Full-year scholarships shall be awarded in the following amounts:
204 (a) for a student who received an average of 180 minutes per day or more of special
205 education services in a public school before transferring to a private school, an amount not to
206 exceed the lesser of:
207 (i) the value of the weighted pupil unit multiplied by 2.5; or
208 (ii) the private school tuition and fees; and
209 (b) for a student who received an average of less than 180 minutes per day of special
210 education services in a public school before transferring to a private school, an amount not to
211 exceed the lesser of:

212 (i) the value of the weighted pupil unit multiplied by 1.5; or
213 (ii) the private school tuition and fees.
214 (3) The scholarship amount for a student enrolled in a half-day kindergarten program
215 shall be the amount specified in Subsection (2)(a) or (2)(b) multiplied by .55.
216 (4) (a) The scholarship amount for a student who receives a waiver under Subsection
217 53A-1a-704 (3) shall be based upon the assessment team's determination of the appropriate
218 level of special education services to be provided to the student.
219 (b) (i) If the student requires an average of 180 minutes per day or more of special
220 education services, a full-year scholarship shall be equal to the amount specified in Subsection
221 (2)(a).
222 (ii) If the student requires less than an average of 180 minutes per day of special
223 education services, a full-year scholarship shall be equal to the amount specified in Subsection
224 (2)(b).
225 (iii) If the student is enrolled in a half-day kindergarten program, the scholarship is
226 equal to the amount specified in Subsection (3).
227 (5) (a) Except as provided in Subsection (5)(b), upon review and receipt of the
228 documentation required by the board to verify a student's admission to, or continuing
229 enrollment and attendance at, a private school, the board shall make scholarship payments in
230 four equal amounts no later than September 1, November 1, February 1, and April 15 of each
231 school year in which a scholarship is in force.
232 (b) In accordance with board rule, the board may make a scholarship payment before
233 the first quarterly payment of the school year, if a private school requires partial payment of
234 tuition before the start of the school year to reserve space for a student admitted to the school.
235 (6) Before scholarship payments are made, the board shall cross-check enrollment lists
236 of scholarship students, school districts, and youth in custody to ensure that scholarship
237 payments are not erroneously made.
238 (7) (a) Scholarship payments shall be made by the board by individual warrant made
239 payable to the student's parent and mailed by the board to the private school. The parent shall
240 restrictively endorse the warrant to the private school for deposit into the account of the private
241 school.
242 (b) A person, on behalf of a private school, may not accept a power of attorney from a

243 parent to sign a warrant referred to in Subsection (7)(a), and a parent of a scholarship student
244 may not give a power of attorney designating a person, on behalf of a private school, as the
245 parent's attorney-in-fact.
246 Section 7. Section 53A-1a-707 is enacted to read:
247 53A-1a-707. Board to make rules.
248 The board shall make rules for the administration of the scholarship program.
249 Section 8. Section 53A-1a-708 is enacted to read:
250 53A-1a-708. Enforcement and penalties.
251 (1) (a) The board shall require private schools to submit signed affidavits assuring the
252 private school will comply with the requirements of this part and board rules made under this
253 part.
254 (b) If a school fails to submit a signed affidavit after having an opportunity to provide
255 explanations and request delays, the board may:
256 (i) deny the private school permission to enroll scholarship students; and
257 (ii) interrupt disbursement of or withhold scholarship payments.
258 (2) The board may:
259 (a) investigate complaints about a private school's or parent's failure to comply with
260 this part or board rules made under this part; and
261 (b) convene administrative hearings for a violation of this part or board rules.
262 (3) Upon a finding that a private school or parent failed to comply with this part or
263 board rules made under this part, the board may:
264 (a) deny a private school permission to enroll scholarship students;
265 (b) interrupt disbursement of or withhold scholarship payments; or
266 (c) issue an order for repayment of scholarship payments fraudulently obtained.
267 Section 9. Section 53A-1a-709 is enacted to read:
268 53A-1a-709. Limitation on regulation of private schools.
269 Nothing in this part grants additional authority to any state agency or school district to
270 regulate private schools except as expressly set forth in this part.
270a H 53A-1a-710. Review by Legislative Auditor General.
270b THE LEGISLATIVE AUDITOR GENERAL SHALL CONDUCT A REVIEW AND ISSUE A REPORT
270c ON THE CARSON SMITH SCHOLARSHIP PROGRAM AFTER THE PROGRAM HAS OPERATED FOR
270d TWO SCHOOL YEARS. h
271 Section 10. Section 53A-3-410 is amended to read:
272 53A-3-410. Criminal background checks on school personnel -- Notice -- Payment
273 of cost -- Request for review.

274 (1) A school district superintendent or the superintendent's designee:
275 (a) shall require a potential employee or a volunteer who will be given significant
276 unsupervised access to a student in connection with the volunteer's assignment to submit to a
277 criminal background check as a condition for employment or appointment; and
278 (b) where reasonable cause exists, may require an existing employee or volunteer to
279 submit to a criminal background check.
280 (2) The chief administrative officer of a private school may require, and the chief
281 administrative officer of the private school that enrolls scholarship students under Chapter 1a,
282 Part 7, Carson Smith Scholarships for Students with Special Needs Act, shall require:
283 (a) a potential employee or volunteer to submit to a criminal background check as a
284 condition for employment or appointment; and
285 (b) where reasonable cause exists, an existing employee or volunteer to submit to a
286 criminal background check.
287 (3) The applicant, volunteer, or employee shall receive written notice that the
288 background check has been requested.
289 (4) (a) (i) Fingerprints of the individual shall be taken, and the Criminal Investigations
290 and Technical Services Division of the Department of Public Safety, established in Section
291 53-10-103 , shall release the individual's full record of criminal convictions to the administrator
292 requesting the information.
293 (ii) The division shall maintain a separate file of fingerprints submitted under
294 Subsection (4)(a)(i) and notify the State Office of Education when a new entry is made against
295 a person whose fingerprints are held in the file regarding:
296 (A) any matters involving an alleged sexual offense;
297 (B) any matters involving an alleged felony or class A misdemeanor drug offense; or
298 (C) any matters involving an alleged offense against the person under Title 76, Chapter
299 5, Offenses Against the Person.
300 (iii) The cost of maintaining the separate file shall be paid by the State Office of
301 Education from fees charged to those submitting fingerprints.
302 (b) Information received by the division from entities other than agencies or political
303 subdivisions of the state may not be released to a private school unless the release is
304 permissible under applicable laws or regulations of the entity providing the information.

305 (5) The superintendent, local school board, or their counterparts at a private school
306 shall consider only those convictions which are job-related for the employee, applicant, or
307 volunteer.
308 (6) (a) The district or private school shall pay the cost of the background check except
309 as otherwise provided in Subsection (6)(b), and the monies collected shall be credited to the
310 Criminal Investigations and Technical Services Division to offset its expenses.
311 (b) The district or private school may require an applicant to pay the costs of a
312 background check as a condition for consideration for employment or appointment, if:
313 (i) the applicant:
314 (A) has passed an initial review;
315 (B) is one of a pool of no more than five candidates for a position; and
316 (C) except as may be otherwise provided by state board rule for an applicant who
317 submitted to a background check while completing a higher education program at a Utah
318 institution of higher education, has not been the subject of a criminal background check of
319 similar scope during the preceding two years that was requested by a potential employer or the
320 State Board of Education; and
321 (ii) a copy of the background check is provided to the district or school considering
322 employment or appointment of the applicant.
323 (7) The Criminal Investigations and Technical Services Division shall, upon request,
324 seek additional information from regional or national criminal data files in responding to
325 inquiries under this section.
326 (8) (a) A private school seeking information from the Federal Bureau of Investigation
327 or other national criminal data file which the private school may not access directly shall
328 submit its request to the Teacher Certification Section of the State Board of Education, together
329 with the required fee and the school's criminal data-related criteria for limiting or rejecting
330 employment.
331 (b) The section shall submit the request and, upon receiving the requested information,
332 shall determine whether the subject of the inquiry is entitled to employment under the school's
333 criteria.
334 (c) The section shall disclose its determination to the school but may not disclose the
335 data in the national criminal data file.

336 (9) (a) The applicant, volunteer, or employee shall have opportunity to respond to any
337 information received as a result of the background check.
338 (b) A private school applicant, volunteer, or employee who wishes to respond shall:
339 (i) submit a request to the school; and
340 (ii) give a written statement to the Teacher Certification Office authorizing the office to
341 release the background check information to a hearing officer selected by the individual and the
342 school.
343 (c) The individual and the school shall equally share any costs incurred under
344 Subsection (9)(b).
345 (d) A public agency shall resolve any request for review by an applicant, volunteer, or
346 employee seeking employment or employed by the agency through normal administrative
347 procedures established by the agency.
348 (10) If a person is denied employment or is dismissed from employment because of
349 information obtained through a criminal background check, the person shall receive written
350 notice of the reasons for denial or dismissal and have an opportunity to respond to the reasons
351 under the procedures set forth in Subsection (9).
352 (11) Information obtained under this part is confidential and may only be disclosed as
353 provided in this section.
354 Section 11. Appropriation.
355 As an ongoing appropriation subject to future budget constraints, there is appropriated
356 from the Uniform School Fund for fiscal year 2004-05, $100,000 to the State Board of
357 Education to fund administration of the Carson Smith Scholarship Program.