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July 6, 2015

Legislature Passes “Individual Education Act”

Dee Black Senior Counsel Dee Black answers questions and assists members with legal issues in Tennessee. He and his wife homeschooled their children.

On May 18, 2015, Governor Bill Haslam approved Senate Bill 27, legislation that created the Individual Education Act to provide funds to parents for the payment of expenses of nonpublic education for their children with disabilities. Parents are to apply for funds through the Tennessee Department of Education, which will then establish an “individualized education account” for each student. The amount deposited into the account is to be equal to the funds which would otherwise be allocated to the local education agency (LEA) in which the student resides. Parents must sign an agreement to use the funds only for the educational expenses listed in the new law and must ensure that participating students in grades 3–8 are administered either a nationally norm-referenced test approved by the department or the Tennessee Comprehensive Assessment Program (TCAP) tests for public school students.

Tennessee law defines a nonpublic school as either a church-related school, homeschool, or private school. There appears to be nothing in the new law that would prohibit a homeschool from being approved by the department to receive state funds from an individualized education account for the educational expenses of a student with disabilities. However, the law states that the educational provider shall not refund, rebate, or share funds with a parent or participating student in any manner. It is unclear how this provision would affect homeschools, since the parent is the educational provider. A partial list of permissible expenses includes computer hardware, textbooks and other curriculum materials, online programs, tutors, and educational therapies, payment for which would not go to the parent.

In order to qualify for this program, the student must have at least one of the disabilities named in the law, have an individualized education program (IEP) in effect at the time the department receives the request by the parent for participation, and must meet one of the following requirements: (1) was previously enrolled in a Tennessee public school during the two semesters immediately preceding participation in the program, (2) is attending a Tennessee public school for the first time, or (3) received an individualized education account in the previous school year. Accordingly, the only homeschool students who can qualify for this program are those who were previously enrolled in public school and had an IEP.

Home School Legal Defense Association opposed this bill, since it is essentially a voucher program by which parents receive government funds to pay nonpublic school expenses, thereby increasing the likelihood of increased government control over private education. The new law contains language intended to prevent such state intrusion, but it also authorizes the state board of education to promulgate rules “necessary to enforce the requirements of the program,” an open door to regulation.

The effective date of the new law is January 1, 2016, so the first award of accounts will be for the 2016–2017 school year.

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