By GARRY RAYNO, InDepthNH.org
For most people who either professionally or recreationally follow the activities of state government, the mere mention of “JLCAR” causes eyes to glaze and heads to shake.
The Joint Legislative Committee on Administrative Rules reviews the rules executive agencies write saying how they will meet their responsibilities for carrying out the dictates of statutes.
A law establishing a new dental benefit under the state Medicaid program is not enough as has been proposed, but that is not the end.
Once that bill becomes law, the Department of Health and Human Services has to write rules to implement, maintain and govern the program, what criteria is used to determine eligibility etc.
The agency would write “preliminary” rules and submit them to JLCAR whose attorneys from the Office of Legislative Services review them looking for citing errors, bad grammar and punctuation, or more importantly if the rules conflict with existing law or accurately reflect the “legislative intent.”
The committee then decides whether the rules need to be changed and sent back for revision, which they almost always do, and then a back and forth between agency attorneys and Legislative Services attorneys occurs before the rules are presented to the committee again.
This review process can go on for a while before the committee votes on the final rule.
A final objection does not mean the rule does not go into effect, but serves as evidence that it does not align with the legislature’s intent when the law was written if the rule is challenged in court.
Sometimes the rules are fairly simple and sometimes they are not.
Last week, the State Board of Education presented its final rules for the new “Education Freedom Account” program.
Last summer JLCAR approved temporary rules to allow the program to begin for the 2021-2022 school year, but noted a lot more work needed to be done on the permanent rules.
The committee’s staff had numerous objections and corrections to the rules, some very significant and the members wanted many of those issues resolved before they would approve permanent rules.
Late last year, the State Board approved its attorneys’ proposal for the final rules, knowing there were some disagreements in key areas with the JLCAR’s attorneys.
But as the board chair Drew Cline noted at the time, some of the key areas need to be resolved by legislation because the EFA law conflicts with current statutes, particularly in the area of special education.
The board and the committee had heard testimony from the beginning of the process that the new program’s path to a special education certification and therefore additional state money for the student was a legal problem.
The bill essentially set up two paths to special education certification, and the new one did not follow current requirements.
The State Board said the intent was not to have the school districts’ students left have to bear the burden of determining special education certification.
As originally written any “medical professional” anywhere in the country could determine the child has a disability and that was changed to the medical professional with some expertise on the topic.
However, as attorney Gerald M. Zelin, representing the NH Association of Special Education Administrators, told the board and the committee several times, legally to receive special education benefits is a two-step process.
The first is the student has to have a disability, and the second is the disability creates a need for special instruction or services.
The second step involves evaluating the student in an educational setting, and developing an individual education plan for the student.
Just declaring the disability is not enough under the law to qualify for additional services and the additional money a child’s parent would receive under the EFA program.
In a letter to JLCAR, Zelin said the additional money does not even have to be spent on special education services.
“(The rule) invites parents to bypass all those processes by simply obtaining a ‘determination’ from a ‘medical professional’ that the student ‘has a disabling condition,’” he writes. “Ironically, while Ed 804.01(c)(2) offers special education bonuses to children who do not truly qualify for special education, RSA 194-F does not demand that parents spend any voucher dollars on special education.”
Committee attorneys also questioned the same section of the rules.
“This method appears to conflict with statute. RSA 194-F:2, I requires the Commissioner to transfer any differentiated funds under RSA 198:40-a, II(d) ‘that would have been provided to a public school for that eligible student. However, a public school would only receive differentiated aid for students who meet the criteria in (c)(1), not (c)(2). Additionally, under RSA 198:40-a, II(d), the differentiated aid in question is only disbursed for students who are receiving special ed services,” the attorney wrote.
Other issues involve which school district is responsible for paying for special education services if the child’s parents place him or her in another school district under the program.
The rules appear to conflict with state and federal special education law, it is noted.
The department’s proposed rules included a list of issues that need to be addressed by the legislature, mostly due to conflicts with existing statutes.
After the committee’s Legislative Services attorney reviewed the problems with the rules Friday at the JLCAR meeting, the committee postponed action indicating more work needed to be done.
The problems with the rules indicate that much more vetting needed to be done on the legislation, which was pushed through last session by including it in the two-year budget package.
But the program is up and running and more than 1,600 students are enrolled at a cost of over $8 million, although Education Commissioner Frank Edelblut estimated about 30 students would participate the first year at a cost less than $300,000.
The law establishing the program allows the Education Department to draw whatever is needed to pay for the grants from the Education Trust Fund.
If the grants exceed the amount of money in the trust fund, then the state general fund would have to pay the grants.
You seldom see that kind of open-ended draw on the state’s general funds.
The additional money may not be a problem this year as the general fund has a $129 million revenue surplus halfway through the fiscal year, but it could be a problem in the future.
The Education Trust Fund was established to pay adequacy grants to school districts and then per-pupil grants to charter schools and some other education costs were added to the obligation.
The freedom account program was praised earlier this session by parents and students who participate in the program when a bill was heard to make its budget fit the appropriation.
However it is also clear the law did not receive the vetting it should have before it was approved and signed by Gov. Chris Sununu.
And it is clear that more work needs to be done to clear up the inconsistency and open-ended financial implications.
The question is whether this legislature which approved the plan will be willing to make adjustments, or if that will fall to future legislatures faced with a larger task.
The parents and children in the freedom account program would be wise to research if past legislatures have lived up to their promises. It is not a very good record, particularly when it involves education.
Garry Rayno may be reached at email@example.com
Distant Dome by veteran journalist Garry Rayno explores a broader perspective on the State House and state happenings for InDepthNH.org. Over his three-decade career, Rayno covered the NH State House for the New Hampshire Union Leader and Foster’s Daily Democrat. During his career, his coverage spanned the news spectrum, from local planning, school and select boards, to national issues such as electric industry deregulation and Presidential primaries. Rayno lives with his wife Carolyn in New London.