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7 LONG TITLE
8 General Description:
9 This bill creates the Special Needs Opportunity Scholarship Program and related
10 income tax credits.
11 Highlighted Provisions:
12 This bill:
13 ▸ defines terms;
14 ▸ creates the Special Needs Opportunity Scholarship Program (program);
15 ▸ establishes requirements for a scholarship recipient and a private school that accepts
16 scholarship money;
17 ▸ requires the State Board of Education to oversee the program, including selection of
18 a scholarship granting organization;
19 ▸ establishes the duties of a scholarship granting organization, including:
20 • accepting program donations;
21 • awarding scholarships; and
22 • issuing tax credit certificates;
23 ▸ creates a nonrefundable corporate income tax credit and a nonrefundable individual
24 income tax credit for certain program donations;
25 ▸ prohibits a taxpayer from claiming more than one state income tax benefit from
26 making the donation; and
27 ▸ makes technical changes.
28 Money Appropriated in this Bill:
29 None
30 Other Special Clauses:
31 This bill provides a special effective date.
32 Utah Code Sections Affected:
33 AMENDS:
34 53-10-108, as last amended by Laws of Utah 2019, Chapters 136, 192, and 404
35 53E-8-403, as last amended by Laws of Utah 2019, Chapter 314
36 53F-4-303, as last amended by Laws of Utah 2019, Chapter 186
37 59-7-109, as last amended by Laws of Utah 1995, Chapter 311
38 ENACTS:
39 53E-7-401, Utah Code Annotated 1953
40 53E-7-402, Utah Code Annotated 1953
41 53E-7-403, Utah Code Annotated 1953
42 53E-7-404, Utah Code Annotated 1953
43 53E-7-405, Utah Code Annotated 1953
44 53E-7-406, Utah Code Annotated 1953
45 53E-7-407, Utah Code Annotated 1953
46 59-7-625, Utah Code Annotated 1953
47 59-10-1041, Utah Code Annotated 1953
48
49 Be it enacted by the Legislature of the state of Utah:
50 Section 1. Section 53-10-108 is amended to read:
51 53-10-108. Restrictions on access, use, and contents of division records -- Limited
52 use of records for employment purposes -- Challenging accuracy of records -- Usage fees
53 -- Missing children records -- Penalty for misuse of records.
54 (1) As used in this section:
55 (a) "FBI Rap Back System" means the rap back system maintained by the Federal
56 Bureau of Investigation.
57 (b) "Rap back system" means a system that enables authorized entities to receive
58 ongoing status notifications of any criminal history reported on individuals whose fingerprints
59 are registered in the system.
60 (c) "WIN Database" means the Western Identification Network Database that consists
61 of eight western states sharing one electronic fingerprint database.
62 (2) Dissemination of information from a criminal history record, including information
63 obtained from a fingerprint background check, name check, warrant of arrest information, or
64 information from division files, is limited to:
65 (a) criminal justice agencies for purposes of administration of criminal justice and for
66 employment screening by criminal justice agencies;
67 (b) (i) agencies or individuals pursuant to a specific agreement with a criminal justice
68 agency to provide services required for the administration of criminal justice;
69 (ii) the agreement shall specifically authorize access to data, limit the use of the data to
70 purposes for which given, and ensure the security and confidentiality of the data;
71 (c) a qualifying entity for employment background checks for their own employees and
72 persons who have applied for employment with the qualifying entity;
73 (d) noncriminal justice agencies or individuals for any purpose authorized by statute,
74 executive order, court rule, court order, or local ordinance;
75 (e) agencies or individuals for the purpose of obtaining required clearances connected
76 with foreign travel or obtaining citizenship;
77 (f) agencies or individuals for the purpose of a preplacement adoptive study, in
78 accordance with the requirements of Sections 78B-6-128 and 78B-6-130;
79 (g) private security agencies through guidelines established by the commissioner for
80 employment background checks for their own employees and prospective employees;
81 (h) state agencies for the purpose of conducting a background check for the following
82 individuals:
83 (i) employees;
84 (ii) applicants for employment;
85 (iii) volunteers; and
86 (iv) contract employees;
87 (i) governor's office for the purpose of conducting a background check on the
88 following individuals:
89 (i) cabinet members;
90 (ii) judicial applicants; and
91 (iii) members of boards, committees, and commissions appointed by the governor;
92 (j) the office of the lieutenant governor for the purpose of conducting a background
93 check on an individual applying to be a notary public under Section 46-1-3.
94 (k) agencies and individuals as the commissioner authorizes for the express purpose of
95 research, evaluative, or statistical activities pursuant to an agreement with a criminal justice
96 agency; [
97 (l) the State Board of Education for employment background checks of individuals in
98 accordance with Section 53E-7-404; and
99 [
100 necessary for protection of life and property and for offender identification, apprehension, and
101 prosecution pursuant to an agreement.
102 (3) An agreement under Subsection (2)(k) shall specifically authorize access to data,
103 limit the use of data to research, evaluative, or statistical purposes, preserve the anonymity of
104 individuals to whom the information relates, and ensure the confidentiality and security of the
105 data.
106 (4) (a) Before requesting information, a qualifying entity under Subsection (2)(c), state
107 agency, or other agency or individual described in Subsections (2)(d) through (j) shall obtain a
108 signed waiver from the person whose information is requested.
109 (b) The waiver shall notify the signee:
110 (i) that a criminal history background check will be conducted;
111 (ii) who will see the information; and
112 (iii) how the information will be used.
113 (c) A qualifying entity under Subsection (2)(c), state agency, or other agency or
114 individual described in Subsections (2)(d) through (g) that submits a request for a noncriminal
115 justice name based background check of local databases to the bureau shall provide to the
116 bureau:
117 (i) personal identifying information for the subject of the background check; and
118 (ii) the fee required by Subsection (15).
119 (d) A qualifying entity under Subsection (2)(c), state agency, or other agency or
120 individual described in Subsections (2)(d) through (g) that submits a request for a WIN
121 database check and a nationwide background check shall provide to the bureau:
122 (i) personal identifying information for the subject of the background check;
123 (ii) a fingerprint card for the subject of the background check; and
124 (iii) the fee required by Subsection (15).
125 (e) Information received by a qualifying entity under Subsection (2)(c), state agency, or
126 other agency or individual described in Subsections (2)(d) through (j) may only be:
127 (i) available to individuals involved in the hiring or background investigation of the job
128 applicant, employee, or notary applicant;
129 (ii) used for the purpose of assisting in making an employment appointment, selection,
130 or promotion decision or for considering a notary applicant under Section 46-1-3; and
131 (iii) used for the purposes disclosed in the waiver signed in accordance with Subsection
132 (4)(b).
133 (f) An individual who disseminates or uses information obtained from the division
134 under Subsections (2)(c) through (j) for purposes other than those specified under Subsection
135 (4)(e), in addition to any penalties provided under this section, is subject to civil liability.
136 (g) A qualifying entity under Subsection (2)(c), state agency, or other agency or
137 individual described in Subsections (2)(d) through (j) that obtains background check
138 information shall provide the subject of the background check an opportunity to:
139 (i) review the information received as provided under Subsection (9); and
140 (ii) respond to any information received.
141 (h) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
142 division may make rules to implement this Subsection (4).
143 (i) The division or its employees are not liable for defamation, invasion of privacy,
144 negligence, or any other claim in connection with the contents of information disseminated
145 under Subsections (2)(c) through (j).
146 (5) (a) Any criminal history record information obtained from division files may be
147 used only for the purposes for which it was provided and may not be further disseminated,
148 except under Subsection (5)(b), (c), or (d).
149 (b) A criminal history provided to an agency pursuant to Subsection (2)(f) may be
150 provided by the agency to the individual who is the subject of the history, another licensed
151 child-placing agency, or the attorney for the adoptive parents for the purpose of facilitating an
152 adoption.
153 (c) A criminal history of a defendant provided to a criminal justice agency under
154 Subsection (2)(a) may also be provided by the prosecutor to a defendant's defense counsel,
155 upon request during the discovery process, for the purpose of establishing a defense in a
156 criminal case.
157 (d) A public transit district, as described in Title 17B, Chapter 2a, Part 8, Public
158 Transit District Act, that is under contract with a state agency to provide services may, for the
159 purposes of complying with Subsection 62A-5-103.5(5), provide a criminal history record to
160 the state agency or the agency's designee.
161 (6) The division may not disseminate criminal history record information to qualifying
162 entities under Subsection (2)(c) regarding employment background checks if the information is
163 related to charges:
164 (a) that have been declined for prosecution;
165 (b) that have been dismissed; or
166 (c) regarding which a person has been acquitted.
167 (7) (a) This section does not preclude the use of the division's central computing
168 facilities for the storage and retrieval of criminal history record information.
169 (b) This information shall be stored so it cannot be modified, destroyed, or accessed by
170 unauthorized agencies or individuals.
171 (8) Direct access through remote computer terminals to criminal history record
172 information in the division's files is limited to those agencies authorized by the commissioner
173 under procedures designed to prevent unauthorized access to this information.
174 (9) (a) The commissioner shall establish procedures to allow an individual right of
175 access to review and receive a copy of the individual's criminal history report.
176 (b) A processing fee for the right of access service, including obtaining a copy of the
177 individual's criminal history report under Subsection (9)(a) shall be set in accordance with
178 Section 63J-1-504.
179 (c) (i) The commissioner shall establish procedures for an individual to challenge the
180 completeness and accuracy of criminal history record information contained in the division's
181 computerized criminal history files regarding that individual.
182 (ii) These procedures shall include provisions for amending any information found to
183 be inaccurate or incomplete.
184 (10) The private security agencies as provided in Subsection (2)(g):
185 (a) shall be charged for access; and
186 (b) shall be registered with the division according to rules made by the division under
187 Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
188 (11) Before providing information requested under this section, the division shall give
189 priority to criminal justice agencies needs.
190 (12) (a) It is a class B misdemeanor for a person to knowingly or intentionally access,
191 use, disclose, or disseminate a record created, maintained, or to which access is granted by the
192 division or any information contained in a record created, maintained, or to which access is
193 granted by the division for a purpose prohibited or not permitted by statute, rule, regulation, or
194 policy of a governmental entity.
195 (b) A person who discovers or becomes aware of any unauthorized use of records
196 created or maintained, or to which access is granted by the division shall inform the
197 commissioner and the director of the Utah Bureau of Criminal Identification of the
198 unauthorized use.
199 (13) (a) Subject to Subsection (13)(b), a qualifying entity or an entity described in
200 Subsection (2) may request that the division register fingerprints taken for the purpose of
201 conducting current and future criminal background checks under this section with:
202 (i) the WIN Database rap back system, or any successor system;
203 (ii) the FBI Rap Back System; or
204 (iii) a system maintained by the division.
205 (b) A qualifying entity or an entity described in Subsection (2) may only make a
206 request under Subsection (13)(a) if the entity:
207 (i) has the authority through state or federal statute or federal executive order;
208 (ii) obtains a signed waiver from the individual whose fingerprints are being registered;
209 and
210 (iii) establishes a privacy risk mitigation strategy to ensure that the entity only receives
211 notifications for individuals with whom the entity maintains an authorizing relationship.
212 (14) The division is authorized to submit fingerprints to the FBI Rap Back System to
213 be retained in the FBI Rap Back System for the purpose of being searched by future
214 submissions to the FBI Rap Back System, including latent fingerprint searches.
215 (15) (a) The division shall impose fees set in accordance with Section 63J-1-504 for
216 the applicant fingerprint card, name check, and to register fingerprints under Subsection
217 (13)(a).
218 (b) Funds generated under this Subsection (15) shall be deposited into the General
219 Fund as a dedicated credit by the department to cover the costs incurred in providing the
220 information.
221 (c) The division may collect fees charged by an outside agency for services required
222 under this section.
223 (16) For the purposes of conducting a criminal background check authorized under
224 Subsection (2)(h), (i), or (j), the Department of Human Resource Management, in accordance
225 with Title 67, Chapter 19, Utah State Personnel Management Act, and the governor's office
226 shall have direct access to criminal background information maintained under Title 53, Chapter
227 10, Part 2, Bureau of Criminal Identification.
228 Section 2. Section 53E-7-401 is enacted to read:
229
230
231 53E-7-401. Definitions.
232 As used in this part:
233 (1) "Eligible student" means a student who:
234 (a) is eligible to participate in public school, in kindergarten or grades 1 through 12;
235 (b) is a resident of the state;
236 (c) (i) has an IEP;
237 (ii) has an individualized family service plan in accordance with the Individuals with
238 Disabilities Education Act, 20 U.S.C. Sec. 1400 et seq., if entering kindergarten; or
239 (iii) is determined by a multidisciplinary evaluation team to be eligible for services
240 under the Individuals with Disabilities Education Act, 20 U.S.C. Sec. 1400 et seq.; and
241 (d) during the school year for which the student is applying for the scholarship, is not:
242 (i) a scholarship student in the Carson Smith Scholarship Program created in Section
243 53F-4-302; or
244 (ii) a public school student.
245 (2) (a) "Employee" means an individual working in a position in which the individual's
246 salary, wages, pay, or compensation, including as a contractor, is paid from:
247 (i) program donations received by a scholarship granting organization; or
248 (ii) scholarship money allocated to a qualifying school by a scholarship granting
249 organization under Section 53E-7-405.
250 (b) "Employee" does not include an individual who volunteers at the scholarship
251 granting organization or qualifying school.
252 (3) "Officer" means:
253 (a) a member of the board of a scholarship granting organization or qualifying school;
254 or
255 (b) the chief administrative officer of a scholarship granting organization or qualifying
256 school.
257 (4) "Program donations" means donations to the program under Section 53E-7-405.
258 (5) "Qualifying school" means a private school that:
259 (a) provides kindergarten, elementary, or secondary education;
260 (b) is approved by the state board under Section 53F-4-303; and
261 (c) meets the requirements described in Section 53E-7-403.
262 (6) "Relative" means a father, mother, husband, wife, son, daughter, sister, brother,
263 uncle, aunt, nephew, niece, first cousin, mother-in-law, father-in-law, brother-in-law,
264 sister-in-law, son-in-law, or daughter-in-law.
265 (7) "Scholarship" means a grant awarded to an eligible student:
266 (a) by a scholarship granting organization out of program donations; and
267 (b) for the purpose of paying for a scholarship expense.
268 (8) "Scholarship expense" means:
269 (a) tuition, fees, textbooks, or uniforms for a qualifying school;
270 (b) educational therapy, if the educational therapy is provided by a licensed physician
271 or licensed practitioner, including occupational, behavioral, physical, or speech-language
272 therapies;
273 (c) textbooks, curriculum, or other instructional materials, including supplemental
274 materials or associated online instruction required by a curriculum;
275 (d) tuition and fees for an online learning course or program; or
276 (e) fees for a national norm-referenced examination, advanced placement examination,
277 or similar course, fees associated with a state-recognized industry certification exam, or any
278 examination related to college or university admission.
279 (9) "Scholarship granting organization" means an organization that is:
280 (a) qualified as tax exempt under Section 501(c)(3), Internal Revenue Code; and
281 (b) recognized through an agreement with the state board as a scholarship granting
282 organization, as described in Section 53E-7-404.
283 (10) "Special Needs Opportunity Scholarship Program" or "program" means the
284 program established in Section 53E-7-402.
285 (11) "Value of the weighted pupil unit" means the amount established each year in the
286 enacted public education budget that is multiplied by the number of weighted pupil units to
287 yield the funding level for the basic state-supported school program.
288 Section 3. Section 53E-7-402 is enacted to read:
289 53E-7-402. Special Needs Opportunity Scholarship Program.
290 (1) There is established the Special Needs Opportunity Scholarship Program under
291 which a parent may apply to a scholarship granting organization on behalf of the parent's
292 student for a scholarship to help cover the cost of a scholarship expense.
293 (2) A scholarship granting organization shall:
294 (a) award, in accordance with this part, scholarships to eligible students; and
295 (b) determine the amount of a scholarship in accordance with Subsection (3).
296 (3) A scholarship granting organization shall determine a full-year scholarship award to
297 pay for the cost of one or more scholarship expenses in an amount not more than:
298 (a) for an eligible student in grades 1 through 12 with an IEP, the value of the weighted
299 pupil unit multiplied by two;
300 (b) for an eligible student in grades 1 through 12 who does not have an IEP, the value
301 of the weighted pupil unit;
302 (c) for an eligible student in kindergarten with an IEP, the value of the weighted pupil
303 unit; or
304 (d) for an eligible student in kindergarten who does not have an IEP, half the value of
305 the weighted pupil unit.
306 (4) The state board shall prepare and disseminate to a scholarship granting organization
307 for distribution to a parent applying for a scholarship on behalf of a student:
308 (a) information on the program; and
309 (b) information on how a parent may enroll the parent's child in a public school.
310 (5) A scholarship granting organization shall distribute the information described in
311 Subsection (4) to a parent who applies to the scholarship granting organization for a
312 scholarship on behalf of the parent's student.
313 Section 4. Section 53E-7-403 is enacted to read:
314 53E-7-403. Qualifying school requirements.
315 (1) A qualifying school shall:
316 (a) notify a scholarship granting organization of the qualifying school's intention to
317 participate in the program;
318 (b) submit evidence to the scholarship granting organization that the qualifying school
319 has been approved by the state board under Section 53F-4-303; and
320 (c) submit a signed affidavit to the scholarship granting organization that the qualifying
321 school will comply with the requirements of this part.
322 (2) A qualifying school shall comply with 42 U.S.C. Sec. 1981, and meet state and
323 local health and safety laws and codes.
324 (3) Before the beginning of the school year immediately following a school year in
325 which a qualifying school receives scholarship money equal to or more than $100,000, the
326 qualifying school shall file with a scholarship granting organization that allocates scholarship
327 money to the qualifying school:
328 (a) a surety bond payable to the scholarship granting organization in an amount equal
329 to the aggregate amount of scholarship money expected to be received during the school year;
330 or
331 (b) financial information that demonstrates the financial viability of the qualifying
332 school, as required by the scholarship granting organization.
333 (4) If a scholarship granting organization determines that a qualifying school has
334 violated a provision of this part, the scholarship granting organization may interrupt
335 disbursement of or withhold scholarship money from the qualifying school.
336 (5) (a) If the state board determines that a qualifying school no longer meets the
337 eligibility requirements described in Section 53F-4-303, the state board may withdraw the state
338 board's approval of the school.
339 (b) A private school that does not have the state board's approval under Section
340 53F-4-303 may not accept scholarship money under this part.
341 (6) A qualifying school shall, when administering an annual assessment required under
342 Section 53F-4-303, ensure that the qualifying school uses a norm-referenced assessment.
343 Section 5. Section 53E-7-404 is enacted to read:
344 53E-7-404. Program administration by the state board.
345 (1) The state board shall administer the program.
346 (2) The state board shall:
347 (a) provide a tax credit certificate form, for use by a scholarship granting organization
348 as described in Section 53E-7-407, that includes:
349 (i) the name, address, and social security number or federal employer identification
350 number of the person that makes a donation under Section 53E-7-405;
351 (ii) the date of the donation;
352 (iii) the amount of the donation;
353 (iv) the amount of the tax credit; and
354 (v) any other relevant information;
355 (b) conduct a financial review or audit of a scholarship granting organization, if the
356 state board receives evidence of fraudulent practice by the scholarship granting organization;
357 (c) conduct a criminal background check on each scholarship granting organization
358 employee and scholarship granting organization officer;
359 (d) establish uniform financial accounting standards for scholarship granting
360 organizations; and
361 (e) annually calculate the amount of the program donations cap described in Section
362 53E-7-407.
363 (3) (a) In accordance with Subsection (4) and Title 63G, Chapter 6a, Utah Procurement
364 Code, the state board shall issue a request for proposals and enter into at least one agreement
365 with an organization that is qualified as tax exempt under Section 501(c)(3), Internal Revenue
366 Code, to be recognized by the state board as a scholarship granting organization.
367 (b) An organization that responds to a request for proposals described in Subsection
368 (3)(a) shall submit the following information in the organization's response:
369 (i) a copy of the organization's incorporation documents;
370 (ii) a copy of the organization's Internal Revenue Service determination letter
371 qualifying the organization as being tax exempt under Section 501(c)(3), Internal Revenue
372 Code;
373 (iii) a description of the methodology the organization will use to verify that a student
374 is an eligible student under this part; and
375 (iv) a description of the organization's proposed scholarship application process.
376 (4) (a) The state board shall enter into an agreement described in Subsection (3)(a) with
377 one scholarship granting organization on or before January 1, 2021.
378 (b) The state board may enter into an agreement described in Subsection (3)(a) with
379 additional scholarship granting organizations after January 1, 2022, if the state board makes
380 rules regarding how multiple scholarship granting organizations may issue tax credit
381 certificates in accordance with Section 53E-7-407.
382 (c) (i) No later than 10 days after the day on which the state board enters into an
383 agreement with a scholarship granting organization, the state board shall forward the name and
384 contact information of the scholarship granting organization to the State Tax Commission.
385 (ii) If, under Subsection (5)(c)(i), the state board bars a scholarship granting
386 organization from further participation in the program, the state board shall, no later than 10
387 days after the day on which the state board bars the scholarship granting organization, forward
388 the name and contact information of the barred scholarship granting organization to the State
389 Tax Commission.
390 (5) (a) If the state board determines that a scholarship granting organization has
391 violated a provision of this part or state board rule, the state board shall send written notice to
392 the scholarship granting organization explaining the violation and the remedial action required
393 to correct the violation.
394 (b) A scholarship granting organization that receives a notice described in Subsection
395 (5)(a) shall, no later than 60 days after the day on which the scholarship granting organization
396 receives the notice, correct the violation and report the correction to the state board.
397 (c) (i) If a scholarship granting organization that received a notice described in
398 Subsection (5)(a) fails to correct a violation in the time period described in Subsection (5)(b),
399 the state board may bar the scholarship granting organization from further participation in the
400 program.
401 (ii) A scholarship granting organization may appeal a decision made by the state board
402 under Subsection (5)(c)(i) in accordance with Title 63G, Chapter 4, Administrative Procedures
403 Act.
404 (d) A scholarship granting organization may not accept program donations while the
405 scholarship granting organization:
406 (i) is barred from participating in the program under Subsection (5)(c)(i); or
407 (ii) has an appeal pending under Subsection (5)(c)(ii).
408 (e) A scholarship granting organization that has an appeal pending under Subsection
409 (5)(c)(ii) may continue to administer scholarships from previously donated program donations
410 during the pending appeal.
411 (6) The state board shall provide for a process for a scholarship granting organization
412 to report information as required under Section 53E-7-405.
413 (7) The state board shall make rules in accordance with Title 63G, Chapter 3, Utah
414 Administrative Rulemaking Act, to administer the program, including rules for:
415 (a) a scholarship granting organization's acceptance of program donations;
416 (b) the administration of scholarships to a qualifying school receiving scholarship
417 money from a scholarship granting organization that is barred from participating in the
418 program under Subsection (5)(c)(i);
419 (c) payment of scholarship money to qualifying schools by a scholarship granting
420 organization;
421 (d) granting scholarship awards and disbursing scholarship money for nontuition
422 scholarship expenses by a scholarship granting organization;
423 (e) if an eligible student does not continue in enrollment at a qualifying school:
424 (i) requiring the scholarship granting organization to:
425 (A) notify the state board; and
426 (B) obtain reimbursement of scholarship money from the qualifying school in which
427 the eligible student is no longer enrolled; and
428 (ii) requiring the qualifying school in which the eligible student is no longer enrolled to
429 reimburse scholarship money to the scholarship granting organization; and
430 (f) audit and report requirements as described in Section 53E-7-405.
431 Section 6. Section 53E-7-405 is enacted to read:
432 53E-7-405. Program donations -- Scholarship granting organization
433 requirements.
434 (1) A person that makes a donation to a scholarship granting organization to help fund
435 scholarships through the program may be eligible to receive a nonrefundable tax credit as
436 described in Sections 59-7-624 and 59-10-1041.
437 (2) In accordance with Section 53E-7-404, an organization may enter into an
438 agreement with the state board to be a scholarship granting organization.
439 (3) A scholarship granting organization shall:
440 (a) accept program donations;
441 (b) adopt an application process in accordance with Subsection (4);
442 (c) review scholarship applications and determine scholarship awards;
443 (d) allocate scholarship money to a scholarship recipient's parent or, on the parent's
444 behalf, to a qualifying school in which the scholarship recipient is enrolled;
445 (e) adopt a process, with state board approval, that allows a parent to use a scholarship
446 to pay for a nontuition scholarship expense for the scholarship recipient;
447 (f) ensure that:
448 (i) at least 90% of the scholarship granting organization's revenue from program
449 donations is spent on scholarships;
450 (ii) no more than 10% of the scholarship granting organization's revenue from program
451 donations is spent on administration of the program; and
452 (iii) all revenue from program donations' interest or investments is spent on
453 scholarships;
454 (g) carry forward no more than 40% of the scholarship granting organization's program
455 donations from the state fiscal year in which the scholarship granting organization received the
456 program donations to the following state fiscal year;
457 (h) prohibit a scholarship granting organization employee or officer from handling,
458 managing, or processing program donations, if, based on a criminal background check
459 conducted by the state board in accordance with Section 53E-7-404, the state board identifies
460 the employee or officer as posing a risk to the appropriate use of program donations;
461 (i) ensure that a scholarship can be transferred during the school year to a different
462 qualifying school that accepts the scholarship recipient;
463 (j) report to the state board on or before June 1 of each year the following information,
464 prepared by a certified public accountant:
465 (i) the name and address of the scholarship granting organization;
466 (ii) the total number and total dollar amount of program donations that the scholarship
467 granting organization received during the previous calendar year;
468 (iii) the total number and total dollar amount of scholarships the scholarship granting
469 organization awarded during the previous calendar year; and
470 (iv) the percentage of first-time scholarship recipients who were enrolled in a public
471 school during the previous school year or who entered kindergarten or a higher grade for the
472 first time in Utah;
473 (k) issue tax credit certificates as described in Section 53E-7-407; and
474 (l) require a parent to notify a scholarship granting organization if the parent's
475 scholarship recipient:
476 (i) receives scholarship money for tuition expenses; and
477 (ii) does not have continuing enrollment and attendance at a qualifying school.
478 (4) (a) An application for a scholarship shall contain an acknowledgment by the
479 applicant's parent that the qualifying school selected by the parent for the applicant to attend
480 using a scholarship is capable of providing the level of disability services required for the
481 student.
482 (b) A scholarship application form shall contain the following statement:
483 "I acknowledge that (1) A private school may not provide the same level of disability
484 services that are provided in a public school;
485 (2) I will assume full financial responsibility for the education of my scholarship
486 recipient if I accept this scholarship;
487 (3) Acceptance of this scholarship has the same effect as a parental refusal to consent
488 to evaluation or services as described in 24 C.F.R. Sec. 300.300, issued under the Individuals
489 with Disabilities Education Act, 20 U.S.C. Sec. 1400 et seq.; and
490 (4) My child may return to a public school at any time."
491 (c) Upon acceptance of a scholarship, the parent assumes full financial responsibility
492 for the education of the scholarship recipient.
493 (d) Acceptance of a scholarship has the same effect as a parental refusal to consent to
494 evaluation or services as described in 24 C.F.R. Sec. 300.300, issued under the Individuals with
495 Disabilities Education Act, 20 U.S.C. Sec. 1400 et seq.
496 (e) The creation of the program or granting of a scholarship does not:
497 (i) imply that a public school did not provide a free and appropriate public education
498 for a student; or
499 (ii) constitute a waiver or admission by the state.
500 (5) A scholarship granting organization shall demonstrate the scholarship granting
501 organization's financial accountability by annually submitting to the state board a financial
502 information report that:
503 (a) complies with the uniform financial accounting standards described in Section
504 53E-7-404; and
505 (b) is prepared by a certified public accountant.
506 (6) (a) If a scholarship granting organization allocates $500,000 or more in
507 scholarships annually through the program, the scholarship organization shall:
508 (i) contract for an annual audit, conducted by a certified public accountant who is
509 independent from:
510 (A) the scholarship granting organization; and
511 (B) the scholarship granting organization's accounts and records pertaining to program
512 donations; and
513 (ii) in accordance with Subsection (6)(b), report the results of the audit to the state
514 board for review.
515 (b) For the report described in Subsection (6)(a)(ii), the scholarship granting
516 organization shall:
517 (i) include the scholarship granting organization's financial statements in a format that
518 meets generally accepted accounting standards; and
519 (ii) submit the report to the state board no later than 180 days after the last day of a
520 scholarship granting organization's fiscal year.
521 (c) The certified public accountant shall conduct an audit described in Subsection
522 (6)(a)(i) in accordance with generally accepted auditing standards and rules made by the state
523 board.
524 (d) (i) The state board shall review a report submitted under this section and may
525 request that the scholarship granting organization revise or supplement the report if the report
526 is not in compliance with the provisions of this Subsection (6) or rules adopted by the state
527 board.
528 (ii) A scholarship granting organization shall provide a revised report or supplement to
529 the report no later than 45 days after the day on which the state board makes a request
530 described in Subsection (6)(d)(i).
531 (7) (a) A scholarship granting organization may not allocate scholarship money to a
532 qualifying school if:
533 (i) the scholarship granting organization determines that the qualifying school
534 intentionally or substantially misrepresented information on overpayment;
535 (ii) the qualifying school fails to refund an overpayment in a timely manner; or
536 (iii) the qualifying school routinely fails to provide scholarship recipients with
537 promised educational goods or services.
538 (b) A scholarship granting organization shall notify a scholarship recipient if the
539 scholarship granting organization stops allocation of the recipient's scholarship money to a
540 qualifying school under Subsection (7)(a).
541 (8) If a scholarship recipient transfers to another qualifying school during the school
542 year, the scholarship granting organization may prorate scholarship money between the
543 qualifying schools according to the time the scholarship recipient spends at each school.
544 (9) A scholarship granting organization may not:
545 (a) award a scholarship to a relative of the scholarship granting organization's officer or
546 employee; or
547 (b) allocate scholarship money to a qualifying school at which the scholarship recipient
548 has a relative who is an officer or an employee of the qualifying school.
549 Section 7. Section 53E-7-406 is enacted to read:
550 53E-7-406. Private school regulation -- Student records.
551 (1) Nothing in this part:
552 (a) grants additional authority to any state agency or LEA to regulate private schools
553 except as expressly described in this part; or
554 (b) expands the regulatory authority of the state, a state office holder, or a local school
555 district to impose any additional regulation of a qualifying school beyond those necessary to
556 enforce the requirements of the program.
557 (2) A qualifying school shall be given the maximum freedom to provide for the
558 educational needs of a scholarship recipient who attends the qualifying school without
559 unlawful governmental control.
560 (3) Except as provided in Section 53E-7-403, a qualifying school may not be required
561 to alter the qualifying school's creed, practices, admission policy, or curriculum in order to
562 accept scholarship money.
563 (4) A local education agency or school in a local education agency in which a
564 scholarship recipient was previously enrolled shall provide to a qualifying school in which the
565 scholarship recipient is currently enrolled a copy of all requested school records relating to the
566 scholarship recipient, subject to:
567 (a) Title 53E, Chapter 9, Student Privacy and Data Protection; and
568 (b) Family Educational Rights and Privacy Act, 20 U.S.C. Sec. 1232g.
569 Section 8. Section 53E-7-407 is enacted to read:
570 53E-7-407. Tax credit certificates issued by a scholarship granting organization.
571 (1) In accordance with this section and subject to Subsection (3), a scholarship granting
572 organization shall provide a tax credit certificate to a person that makes a donation as described
573 in Section 53E-7-405.
574 (2) (a) The scholarship granting organization shall issue a tax credit certificate
575 described in Subsection (1) on the tax credit certificate form described in Section 53E-7-404.
576 (b) The scholarship granting organization shall provide the information from a
577 completed tax credit certificate to the State Tax Commission electronically and in a manner
578 prescribed by the State Tax Commission.
579 (c) A scholarship granting organization shall issue a tax credit certificate within 30
580 days after the day on which a person makes a donation to the program.
581 (3) (a) A scholarship granting organization may not issue a tax credit certificate for a
582 calendar year if issuing the tax credit certificate will cause the total amount of the tax credit
583 certificates issued for the calendar year to exceed the program donations cap amount described
584 in Subsection (4).
585 (b) Before accepting a donation to the program from a person, the scholarship granting
586 organization shall provide the person with notice:
587 (i) that the donation may not be eligible for a tax credit;
588 (ii) of the process described in Subsection (3)(c); and
589 (iii) of the total amount of tax credit certificates that the scholarship granting
590 organization has issued for the calendar year.
591 (c) During a calendar year, a scholarship granting organization shall:
592 (i) issue tax credit certificates in the order that the scholarship granting organization
593 received a corresponding donation; and
594 (ii) track the total amount of program donations received during the year as
595 corresponding tax credit certificates are issued.
596 (d) If a scholarship granting organization accepts a donation that, when added to the
597 current total amount of program donations received that year, will exceed the program
598 donations cap described in Subsection (4), the scholarship granting organization shall issue a
599 tax credit certificate in the amount that is the difference between the program donations cap
600 and the total amount of program donations received before the donation was received.
601 (4) (a) The program donations cap for the 2021 calendar year is $12,000,000.
602 (b) For a calendar year after 2021, the state board shall calculate the program donations
603 cap as follows:
604 (i) if the total program donations for the previous calendar year exceed 90% of the cap
605 amount for that calendar year, the cap for the current calendar year is the cap amount for the
606 previous calendar year increased by 10%; or
607 (ii) if the total program donations for the previous calendar year did not exceed 90% of
608 the cap amount for that calendar year, the cap for the current calendar year is the same as the
609 cap amount for the previous calendar year.
610 (5) A person that receives a tax credit certificate in accordance with this section shall
611 retain the certificate for the same time period a person is required to keep books and records
612 under Section 59-1-1406.
613 Section 9. Section 53E-8-403 is amended to read:
614 53E-8-403. Educational programs.
615 (1) The Utah Schools for the Deaf and the Blind shall provide an educational program
616 for a student:
617 (a) based on assessments of the student's abilities; and
618 (b) in accordance with the student's IEP or Section 504 accommodation plan.
619 (2) If a student's ability to access the core curriculum is impaired primarily due to a
620 severe sensory loss and requires intensive sensory-based instruction or services, the Utah
621 Schools for the Deaf and the Blind shall provide an educational program that will enable the
622 student, with accommodations, to access the core curriculum.
623 (3) The Utah Schools for the Deaf and the Blind shall provide instruction in Braille to
624 students who are blind [
625
626 Section 10. Section 53F-4-303 is amended to read:
627 53F-4-303. Eligible private schools.
628 (1) As used in this section, "scholarship student" means:
629 (a) a student who receives a scholarship under this part; or
630 (b) an eligible student who receives a scholarship under Title 53E, Chapter 7, Part 4,
631 Special Needs Opportunity Scholarship Program.
632 [
633 (a) have a physical location in Utah where the scholarship students attend classes and
634 have direct contact with the school's teachers;
635 (b) (i) (A) obtain an audit and report from a licensed independent certified public
636 accountant that conforms with the following requirements:
637 (I) the audit shall be performed in accordance with generally accepted auditing
638 standards;
639 (II) the financial statements shall be presented in accordance with generally accepted
640 accounting principles; and
641 (III) the audited financial statements shall be as of a period within the last 12 months;
642 or
643 (B) contract with an independent licensed certified public accountant to conduct an
644 Agreed Upon Procedures engagement, as adopted by the state board; and
645 (ii) submit the audit report or report of the agreed upon procedure to the state board
646 when the private school applies to accept scholarship students;
647 (c) comply with the antidiscrimination provisions of 42 U.S.C. Sec. 2000d;
648 (d) meet state and local health and safety laws and codes;
649 (e) provide a written disclosure to the parent of each prospective student, before the
650 student is enrolled of:
651 (i) the special education services that will be provided to the student, including the cost
652 of those services;
653 (ii) tuition costs;
654 (iii) additional fees a parent will be required to pay during the school year; and
655 (iv) the skill or grade level of the curriculum that the student will be participating in;
656 (f) (i) administer an annual assessment of each scholarship student's academic
657 progress;
658 (ii) report the results of the assessment described in Subsection [
659 the student's parent; and
660 (iii) for a student who receives a scholarship under this part, make the results available
661 to the assessment team evaluating the student pursuant to Subsection 53F-4-302(6);
662 (g) employ or contract with teachers who:
663 (i) hold baccalaureate or higher degrees;
664 (ii) have at least three years of teaching experience in public or private schools; or
665 (iii) have the necessary special skills, knowledge, or expertise that qualifies them to
666 provide instruction:
667 (A) in the subjects taught; and
668 (B) to the special needs students taught;
669 (h) maintain documentation demonstrating that teachers at the private school meet the
670 qualifications described in Subsection [
671 (i) require the following individuals to submit to a nationwide, fingerprint-based
672 criminal background check and ongoing monitoring, in accordance with Section 53G-11-402,
673 as a condition for employment or appointment , as authorized by the Adam Walsh Child
674 Protection and Safety Act of 2006, Pub. L. No. 109-248 :
675 (i) an employee who does not hold a current Utah educator license issued by the state
676 board under Title 53E, Chapter 6, Education Professional Licensure;
677 (ii) a contract employee; and
678 (iii) a volunteer who is given significant unsupervised access to a student in connection
679 with the volunteer's assignment; and
680 (j) provide to parents the relevant credentials of the teachers who will be teaching their
681 students.
682 [
683 (a) the private school requires a student to sign a contract waiving the student's rights
684 to transfer to another eligible private school during the school year;
685 (b) the audit report submitted under Subsection [
686 explanatory paragraph; or
687 (c) the report of the agreed upon procedure submitted under Subsection [
688 shows that the private school does not have adequate working capital to maintain operations for
689 the first full year, as determined under Subsection [
690 [
691 [
692 scholarship students.
693 [
694 application to the state board by May 1 of the school year preceding the school year in which it
695 intends to enroll scholarship students.
696 [
697 (a) approve a private school's application to enroll scholarship students, if the private
698 school meets the eligibility requirements of this section; and
699 (b) make available to the public a list of the eligible private schools.
700 [
701 new application to the state board and demonstrate that it continues to meet the eligibility
702 requirements of this section.
703 Section 11. Section 59-7-109 is amended to read:
704 59-7-109. Charitable contributions.
705 (1) Except as provided in [
706 for charitable contributions made within the taxable year to organizations described in Section
707 170(c), Internal Revenue Code.
708 (2) (a) The aggregate amount of charitable contributions deductible under this section
709 may not exceed 10% of the taxpayer's apportionable income.
710 (b) The limitation imposed in this [
711 combined basis in a combined report.
712 (3) Any charitable contribution made in a taxable year [
713
714 be carried over to the five succeeding taxable years in the same manner as allowed under
715 federal law.
716 (4) A taxpayer may not subtract a charitable contribution that meets the requirements
717 of this section to the extent that the taxpayer claims a tax credit under Section 59-7-625 for the
718 same charitable contribution.
719 Section 12. Section 59-7-625 is enacted to read:
720 59-7-625. Nonrefundable tax credit for donation to Special Needs Opportunity
721 Scholarship Program.
722 (1) A taxpayer that makes a donation to the Special Needs Opportunity Scholarship
723 Program established in Section 53E-7-402 may claim a nonrefundable tax credit equal to 100%
724 of the amount stated on a tax credit certificate issued in accordance with Section 53E-7-407.
725 (2) (a) If the amount of a tax credit listed on the tax credit certificate exceeds a
726 taxpayer's liability under this chapter for a taxable year, the taxpayer may carry forward the
727 amount of the tax credit exceeding the liability for a period that does not exceed the next three
728 taxable years.
729 (b) A taxpayer may not carry back the amount of the tax credit that exceeds the
730 taxpayer's tax liability for the taxable year.
731 Section 13. Section 59-10-1041 is enacted to read:
732 59-10-1041. Nonrefundable tax credit for donation to Special Needs Opportunity
733 Scholarship Program.
734 (1) Except as provided in Subsection (3), a claimant, estate, or trust that makes a
735 donation to the Special Needs Opportunity Scholarship Program established in Section
736 53E-7-402, may claim a nonrefundable tax credit equal to 100% of the amount stated on a tax
737 credit certificate issued in accordance with Section 53E-7-407.
738 (2) (a) If the amount of a tax credit listed on the tax credit certificate exceeds a
739 claimant's, estate's, or trust's tax liability under this chapter for a taxable year, the claimant,
740 estate, or trust may carry forward the amount of the tax credit exceeding the liability for a
741 period that does not exceed the next three taxable years.
742 (b) A claimant, estate, or trust may not carry back the amount of the tax credit that
743 exceeds the claimant's, estate's, or trust's tax liability for the taxable year.
744 (3) A claimant, estate, or trust may not claim a credit described in Subsection (1) to the
745 extent the claimant, estate, or trust claims a donation described in Subsection (1) as an itemized
746 deduction on the claimant's, estate's, or trust's federal individual income tax return for that
747 taxable year.
748 Section 14. Effective date.
749 (1) Except as provided in Subsection (2), this bill takes effect on January 1, 2021.
750 (2) The amendments to Section 59-7-109 and the enactment of Sections 59-7-625 and
751 59-10-1041 take effect for a taxable year beginning on or after January 1, 2021.