Conference Committee Report on
House Bill No. 939 / Senate Bill No. 795
The House and Senate Conference Committee appointed pursuant to motions to
resolve the differences between the two houses on House Bill No. 939 (Senate Bill No. 795)
has met and recommends that all amendments be deleted.
The Committee further recommends that the following amendment be adopted:
by deleting all language after the enacting clause and substituting instead the following :
SECTION 1. Tennessee Code Annotated, Title 49, Chapter 6, is amended by adding
the following language as a new part:

49-6-2601 . This part shall be known and may be cited as the "Tennessee Education
Savings Account Pilot Program."

49-6-2602.
As used in this part, unless the context otherwise requires:
(1) "Department" means the department of education ;
(2) "Eligible postsecondary institution" means:
(A) An institution operated by:
(i) The board of trustees of the University of Tennessee;
(ii) The board of regents of the state university and
community college system; or
(iii) A local governing board of trustees of a state
university in this state; or
(8) A private postsecondary institution accredited by an

accrediting organization approved by the state board of education;
(3) "Eligible student" means a resident of this state who:
(A)

(i) Was previously enrolled in and attended a Tennessee
public school for the one ( 1) fu ll school year immediately

111111111111 !Ill llll 11111111111111
0258709102

lIll

1111111111
1

IIII

II

*009043*

 preceding the school year for which the student receives an
education savings account;
(ii) Is eligible for the first time to enroll in a Tennessee
school; or
(iii) Received an education savings account in the
previous school year;
(B) Is a student in any of the grades kindergarten through twelve
(K-12);
(C)

(i) Is zoned to attend a school in an LEA, excluding the
achievement school district (ASD), with ten (10) or more schools:
(a) Identified as priority schools in 2015, as

defined by the state's accountability system pursuant to §
49-1-602;
(b) Among the bottom ten percent (10%) of

schools, as identified by the department in 2017 in
accordance with§ 49-1-602(b)(3); and
(c) Identified as priority schools in 2018, as defined

by the state's accountability system pursuant to § 49-1602; or
(ii) Is zoned to attend a school that is in the ASD on the
effective date of this act; and
(D) Is a member of a household with an annual income for the
previous year that does not exceed twice the federal income eligibility
guidelines for free lunch;
(4) "ESA" means an education savings account created by this part;

-2-

*009043*

 (5) "High school" means a school in which any combination of grades
nine through twelve (9-12) are taught; provided, that the school must include
grade twelve (12) ;
(6) "Legacy student" means a participating student who:
(A)

(i) Graduates from high school; or
(ii) Exits the program by reaching twenty-two (22) years of
age;

(8) Has funds remaining in the student's education savings
account; and
(C) Has an open education savings account;
(7) "Local education agency" or "LEA" has the same meaning as defined
in§ 49-1 -103;
(8) "Parent" means the parent, guardian, person who has custody of the
child, or individual who has caregiving authority under§ 49-6-3001 ;
(9) "Participating school" means a private school, as defined by § 49-63001 (c)(3)(A)(iii), that meets the requirements established by the department of
education and the state board of education for a Category I, II , or Ill private
school, and that seeks to enroll eligible students;
(10) "Participating student" means:
(A) An eligible student who is seventeen (17) years of age or
younger and whose parent is participating in the education savings
account program; or
(8) An elig ible student who has reached the age of eighteen (18)
and who is participating in the education savings account program;
(11) "Program" means the education savings account program created
in this part;

-3-

*009043*

 (12) "Provider" means an individual or business that provides
educational services in accordance with this part and that meets the
requirements established by the department of education and the state board of
education; and
(13) "State board" means the state board of education.

49-6-2603.
(a) To participate in the program, a parent of an eligible student who is
seventeen (17) years of age or younger, or an eligible student who has reached the age
of eighteen (18) must agree in writing to:
( 1) Ensure the provision of an education for the participating student that
satisfies the compulsory school attendance requirement provided in§ 49-63001 (c)(1) through enrollment in a private school, as defined in § 49-63001 ( c)(3)(A)(iii) , that meets the requirements established by the department
and the state board for a Category I, II , or Ill private school;
(2) Not enroll the participating student in a public school while
participating in the program;
(3) Release the LEA in which the participating student resides from all
obligations to educate the participating student while participating in the
program. Participation in the program has the same effect as a parental refusal
to consent to the receipt of services under the Individuals with Disabilities
Education Act (IDEA) (20 U.S.C. § 1414);
(4) Only use the funds deposited in a participating student's ESA for one
( 1) or more of the following expenses of the student:
(A) Tuition or fees at a participating school;
(B) Textbooks required by a participating school;

-4-

*009043*

 (C) Tutoring services provided by a tutor or tutoring facility that
meets the requirements established by the department and the state
board;
(D) Fees for transportation to and from a participating school or
educational provider paid to a fee-for-service transportation provider;
(E) Fees for early postsecondary opportunity courses and
examinations required for college admission;
(F) Computer hardware, technological devices, or other
technology fees approved by the department, if the computer hardware,
technological device, or technology fee is used for the student's
educational needs and is purchased through a participating school,
private school, or provider;
(G) School uniforms, if required by a participating school;
(H) Tuition and fees for summer education programs and
specialized afterschool education programs, as approved by the
department, which do not include afterschool childcare;
(I) Tuition and fees at an eligible postsecondary institution;
(J) Textbooks required by an eligible postsecondary institution;

(K) Educational therapy services provided by therapists that meet
the requirements established by the department and the state board; or
(L) Fees for the management of the ESA by a private or nonprofit financial management organization, as approved by the
department. The fees must not exceed two percent (2%) of the funds
deposited in a participating student's ESA in a fiscal year; and
(5) Verify that the student's household income meets the requirements of
§ 49-6-2602(3)(0) by providing a federal income tax return from the previous

year or by providing proof that the parent of an eligible student who is seventeen

-5-

*009043*

 (17) years of age or younger, or an eligible student who has reached the age of
eighteen (18), is eligible to enroll in the state's temporary assistance for needy
families (TANF) program . Household income must be verified under this
subdivision (a)(5):
(A) When the parent of the eligible student or the eligible student,
as applicable, submits an application to participate in the program ; and
(B) At least once every year, according to the schedule and
income-verification process developed by the department.
(b) This part does not prohibit a parent or third party from paying the costs of
educational programs and services for a participating student that are not covered by
the funds in an ESA.
(c) When a participating student reaches the age of eighteen (18), the rights
accorded to, and any consent required of, the participating student's parent under this
part transfer from the participating student's parent to the participating student.
(d) For purposes of continuity of educational attainment, and subject to the
eligibility requirements of§ 49-6-2602(3)(A) and (B), a participating student may
participate in the program, unless the student is suspended or terminated from
participating in the program under§ 49-6-2608, until:
( 1) The participating student:
(A) Enrolls in a public school;
(B) Ceases to be a resident of the LEA in which the student
resided when the student began participating in the program;
(C) Graduates or withdraws from high school; or
(D) Reaches twenty-two (22) years of age between the
commencement of the school year and the conclusion of the school year,
whichever occurs first; or

-6-

*009043*

 (2) The parent of the participating student or the participating student, as
applicable:

(A) Fails to verify that the participating student's household
income meets the requirements of§ 49-6-2602(3)(0) according to the
schedule and income-verification process developed by the department;
or
(B) Verifies, according to the schedule and income-verification
process developed by the department, that the participating student's
household income does not meet the requirements of§ 49-6-2602(3)(0).
(e) A participating student, who is otherwise eligible to return to the student's
LEA, may return to the student's LEA at any time after enrolling in the program. Upon a
participating student's return to the student's LEA, the student's ESA will be closed and
any remaining funds must be returned to the state treasurer to be placed in the basic
education program account of the education trust fund of 1992 under §§ 49-3-357 and
49-3-358 .

(f)
(1) If a participating student ceases to be a resident of the LEA in which
the student resided when the student began participating in the program , then
the student's ESA will be closed and any remaining funds must be returned to
the state treasurer to be placed in the basic education program account of the
education trust fund of 1992 under §§ 49-3-357 and 49-3-358.
(2) If the parent of a participating student or the participating student, as
applicable, fails to verify that the participating student's household income meets
the requirements of§ 49-6-2602(3)(0) according to the schedule and incomeverification process developed by the department, or if the parent of a
participating student or the participating student, as applicable , verifies,
according to the schedule and income-verification process developed by the

-7-

*009043*

 department, that the participating student's household income does not meet the
requirements of§ 49-6-2602(3)(0), then the student's ESA will be closed and
any remaining funds must be returned to the state treasurer to be placed in the
basic education program account of the education trust fund of 1992 under§§
49-3-357 and 49-3-358.
(g) Any funds remaining in a participating student's ESA upon graduation from
high school or exiting the program by reaching twenty-two (22) years of age may be
used by the student when the student becomes a legacy student to attend or take
courses from an eligible postsecondary institution, with qualifying expenses subject to
the conditions of subdivision (a)(4).
(h) A participating student's ESA will be closed, and any remaining funds must
be returned to the state treasurer to be placed in the basic education program account
of the education trust fund of 1992 under §§ 49-3-357 and 49-3-358, after the first of the
following events:
(1) Upon a legacy student's graduation from an eligible postsecondary
institution;
(2) After four (4) consecutive years elapse immediately after a legacy
student enrolls in an eligible postsecondary institution;
(3) After a participating student or legacy student exits the program and
is not enrolled in an eligible postsecondary institution; or
(4) After a participating or legacy student reaches twenty-two (22) years
of age and is not enrolled in an eligible postsecondary institution.
(i) Funds received pursuant to this part:
(1) Constitute a scholarship provided for use on qualified educational
expenses listed in subdivision (a)(4}; and
(2) Do not constitute income of a parent of a participating student under
title 67, chapter 2 or any other state law.

-8-

*009043*

 (j) A student who is eligible for both the program created under this part and an
individualized education account under the Individualized Education Act, compiled in
chapter 10, part 14 of this title, may apply for both programs but must only participate
and receive assistance from one (1) program.
(k) A participating student is ineligible to participate in a sport sanctioned by an
association that regulates interscholastic athletics for the first year in which the student
attends a participating school if:
(1) The participating student attended a Tennessee public school and
participated in that sport;
(2) The student participated in that sport in the year immediately
preceding the year in which the participating student enrolled in the participating
school; and
(3) The participating student has not relocated outside the LEA in which
the Tennessee public school that the participating student formerly attended is
located.
(I) The state board shall adopt rules regarding the spending requirements for
ESA funds and the use of any unspent funds, as well as rules providing for determining
that a student is no longer participating in the program or that a student's ESA should be
closed. The rules must be promulgated in accordance with the Uniform Administrative
Procedures Act, compiled in title 4, chapter 5.
49-6-2604.

(a) The department shall establish :
(1) Procedures to determine student eligibility in accordance with the
requirements established by this part;

(2)
(A) An application form that a parent of a student or a student
who has reached the age of eighteen (18) may submit to the department

-9-

*009043*

 to determine the student's eligibility for an ESA and make the application
form readily available on the department's website;
(B) An application process that provides a timeline, before the
start of the school year for which an application is being submitted , when
a parent of a student, or a student who has reached the age of eighteen
(18) , as applicable, must submit an application to participate in the
program . If the application is approved, then the student may participate
in the program beginning with the school year identified in the application.
If a participating student exits the program , then the student's parent, or
the student, as applicable, may reapply to participate in the program in
accordance with the application process and timeline established by the
department under this subdivision (a)(2)(B) ;

(3) An approval process for a Category I, II, or Ill private school to
become a participating school;

(4) An application form that a Category I, II, or Ill private school may
submit to the department to become a participating school and make the
application form readily available on the department's website;
(5) An annual application period for a parent of a student, or a student
who has reached the age of eighteen (18) , to apply for the program; and

(6) An income-verification process for a parent of a participating student
who is seventeen (17) years of age or younger, or a participating student who
has reached the age of eighteen (18), as applicable, to verify that the
participating student's household income meets the requirements of§ 49-62602(3)(0).
(b) The program shall begin enrolling participating students no later than the
2021 -2022 school year.

- 10 -

*009043*

 (c) The number of participating students enrolled in the program must not
exceed :
(1) For the first school year of operation, five thousand (5,000) students;
(2) For the second school year of operation, seven thousand five
hundred (7 ,500) students;
(3) For the third school year of operation, ten thousand (10,000)
students;
(4) For the fourth school year of operation, twelve thousand five hundred
(12,500) students; and
(5) For the fifth school year of operation, and for each school year
thereafter, fifteen thousand (15,000) students.
(d)

(1) Notwithstanding subsection (c) , if, in the application period for a
school year, the number of program applications received by the department
does not exceed seventy-five percent (75%) of the maximum number of students
that may participate in the program for that school year under subsection (c) ,
then the maximum number of students that may participate in the program for
that school year must remain in place for subsequent school years until the
number of applications during a subsequent program application period exceeds
seventy-five percent (75%) of that maximum number.
(2) Once the number of applications during a subsequent program
application period exceeds seventy-five percent (75%) of the maximum number
that has remained in place under subdivision (d)(1 ), then , during the next school
year for which an increase is practicable, the maximum number of students that
may participate in the program for that school year shall increase to the number
of students provided for under subsection (c) that is in excess of the most recent
maximum number of students allowed to participate in the program.

- 11 -

*009043*

 (3) This subsection (d) is subject to the caps on the maximum number of

I

students that may participate in the program for a particular school year under
subsection (c).
(e) If, in the application period for a school year, the number of program
applications received by the department exceeds the maximum number of students that
may participate in the program for that school year under subsection (c) , then the
department shall select students for participation in the program through an enrollment
lottery process. Students who participated in the program in the previous school year
receive enrollment preference and, as a result, are excluded from entering into an
enrollment lottery. If an enrollment lottery is conducted, then enrollment preference
must be granted in the following order:
(1) Students who have a sibling participating in the program ;
(2) Students zoned to attend a priority school as defined by the state's
accountability system pursuant to§ 49-1-602;

(3) Students eligible for direct certification under 42 U.S.C. § 1758(b)(4);
and
(4) All other eligible students.

49-6-2605.
(a) The maximum annual amount to which a participating student is entitled
under the program must be equal to the amount representing the per pupil state and
local funds generated and required through the basic education program (BEP) for the

LEA in which the participating student resides, but must not exceed the combined
statewide average of required state and local BEP allocations per pupil. The state
board of education may promulgate rules to annually calculate and determine the
combined statewide average of required state and local BEP allocations per pupil.

(b)

- 12 -

*009043*

 (1) For the purpose of funding calculations, each participating student
must be counted in the enrollment figures for the LEA in which the participating
student resides. The ESA funds for participating students must be subtracted
from the state BEP funds otherwise payable to the LEA. The department shall
remit funds to a participating student's ESA on at least a quarterly basis. Any
funds awarded under this part are the entitlement of the participating student or
legacy student, under the supeNision of the participating student's or legacy
student's parent if the participating student or legacy student is seventeen ( 17)
years of age or younger.
(2)

(A) There is established a school improvement fund to be
administered by the department that, for the first three (3) fiscal years in
which the program enrolls participating students and subject to
appropriation, shall disburse an annual grant to each LEA to be used for
school improvement in an amount equal to the ESA amount for
participating students under the program who:
(i) Were enrolled in and attended a school in the LEA for
the one (1) full school year immediately preceding the school year
in which the student began participating in the program; and
(ii) Generate BEP funds for the LEA in the applicable
fiscal year that will be subtracted from the state BEP funds
payable to the LEA under subdivision (b)(1 ).
(B)

(i) Any balance of unused funds allocated to the program
remaining at the end of any of the first three (3) fiscal years of the
program must be disbursed as an annual school improvement
grant to LEAs that have priority schools as defined by the state's

- 13 -

*009043*

 accountability system pursuant to§ 49-1-602, but that do not have

(

participating students in the program.
(ii) After the first three (3) fiscal years in which the
program enrolls participating students, the department shall
disburse any appropriations to the fund established in this
subdivision (b)(2) as school improvement grants for programs to
support schools identified as priority schools, as defined by the
state's accountability system pursuant to§ 49-1-602, for 2021 or
any year thereafter.
(3) Any balance in the fund established in subdivision (b)(2) remaining
unexpended on the program at the end of any fiscal year after the third fiscal
year does not revert to the general fund, but is carried forward for expenditure in
subsequent years.
(c) The department shall provide parents of participating students or students,
as applicable, with a written explanation of the allowable uses of ESA funds, the
responsibilities of parents regarding ESA funds and the parents' participating students,
and the department's duties regarding ESA funds and eligible students, participating
students, and legacy students.
(d) The department shall post on the department's website a list of participating
schools for each school year, the grades taught in each participating school, and any
other information that the department determines may assist parents in selecting a
participating school.
(e) The department shall strive to ensure that lower-income families and families
with students listed under§ 49-6-2604(e) are notified of the program and of the eligibility
requirements to participate in the program.

(f) The department shall strive to ensure that parents of students with disabilities
receive notice that participation in the program has the same effect as a parental refusal

- 14 -

*009043*

 I
I

to consent to the receipt of services under the Individuals with Disabilities Education Act

(IDEA) (20 U.S.C. § 1414).
(g) The department shall adopt policies or procedures necessary for the
administration of the program, including, but not limited to, procedures for establishing,
or contracting for the establishment of, an anonymous online fraud reporting service and
telephone hotline, for reporting fraudulent activity related to ESAs, and for conducting or
contracting for random, quarterly, or annual review of accounts.
(h) The department may deduct six percent (6%) from the annual ESA award
amount to cover the costs of overseeing the funds and administering the program.
(i) The department may contract with a nonprofit organization to administer
some or all portions of the program.
49-6-2606.
(a)

(1) As a condition of participating in the program, participating students
in grades three through eleven (3-11) must be annually administered the
Tennessee comprehensive assessment program (TCAP) tests for math and
English language arts, or successor tests authorized by the state board of
education for math and English language arts.
(2) For participating students enrolled full-time in a participating school,
the participating school shall annually administer the tests required in subdivision
( a)( 1) to participating students.
(3) For participating students seventeen (17) years of age or younger
who are not enrolled full-time in a participating school, the participating student's
parent must ensure that the participating student is annually administered the
tests required in subdivision (a)(1 ). A participating student who has reached the
age of eighteen (18) and who is not enrolled full-time in a participating school

- 15 -

*009043*

 must ensure that the participating student is annually administered the tests
required in subdivision (a)(1).
(b) The department shall ensure that:
(1) Parents report the participating student's graduation from high school
to the department; and
(2) A parental satisfaction survey is created and annually disseminated
to parents of participating students that requests the following information:
(A) Parental satisfaction with the program, including parental
recommendations, comments, and concerns;
(8) Whether the parent terminated the participating student's
participation in the program and the reason for termination;

(C) Methods to improve the effectiveness of the program,
including parental recommendations for doing so; and
(D} The number of years the parent's participating student has

participated in the program.
(c) In compliance with all state and federal student privacy laws, beginning at
the conclusion of the first fiscal year in which the program enrolls participating students,
the department shall produce an annual report that is accessible on the department's
website with information about the program for the previous school year. The report
must include:
(1) The number of students participating in the program;
(2) Participating student performance on annual assessments req uired
by this section, aggregated by LEA and statewide;
(3) Aggregate graduation outcomes for participating students in grade

twelve (12); and
(4) Results from the parental satisfaction survey required in s ubdivision
(b)(2) .

- 16 -

*009043*

 r

I

(d) In compliance with all state and federal student privacy laws, the program is
subject to audit by the comptroller of the treasury or the comptroller's designee no later
than the first fiscal year in which the program enrolls participating students and annually
thereafter. The audit may include a sample of ESAs to evaluate the eligibility of the
participating students, the funds deposited in the ESAs, and whether ESA funds are
being used for authorized expenditures. The audit may also include an analysis of the
department's ESA monitoring process and the sufficiency of the department's fraud
protection measures. The department shall cooperate fully with the comptroller of the
treasury or the comptroller's designee in the performance of the audit. The audit must
be made available to the members of the general assembly.
(e)

(1) Data from the Tennessee comprehensive assessment program
(TCAP) tests, or successor tests authorized by the state board of education, that
are annually administered to participating students in grades three through
eleven (3-11) pursuant to subsection (a) must be used to determine student
achievement growth, as represented by the Tennessee Value-Added
Assessment System (TVAAS), developed pursuant to chapter 1, part 6 of this
title, for participating schools.
(2) The department shall, in compliance with all state and federal student
privacy laws, make the TVAAS score of each participating school publicly
available on the department's website.
49-6-2607.

(a) ESA funds shall only be used for the expenses listed in§ 49-6-2603(a)(4).
(b) The department shall establish and maintain separate ESAs for each
participating student and shall verify that the uses of ESA funds are permitted under §
49-6-2603(a)(4) and institute fraud protection measures. Use of ESA funds on tuition
and fees, computer hardware or other technological devices, tutoring services,

- 17 -

*009043*

 (d) In compliance with all state and federal student privacy laws, the program is

(

subject to audit by the comptroller of the treasury or the comptroller's designee no later
than the first fiscal year in which the program enrolls participating students and annually
thereafter. The audit may include a sample of ESAs to evaluate the eligibility of the
participating students, the funds deposited in the ESAs, and whether ESA funds are
being used for authorized expenditures. The audit may also include an analysis of the
department's ESA monitoring process and the sufficiency of the department's fraud
protection measures. The department shall cooperate fully with the comptroller of the
treasury or the comptroller's designee in the performance of the audit. The audit must
be made available to the members of the general assembly.
(e)

(1) Data from the Tennessee comprehensive assessment program
(TCAP) tests, or successor tests authorized by the state board of education , that
are annually administered to participating students in grades three through
eleven (3-11) pursuant to subsection (a) must be used to determine student
achievement growth, as represented by the Tennessee Value-Added
Assessment System (TVAAS), developed pursuant to chapter 1, part 6 of this
title, for participating schools.
(2) The department shall, in compliance with all state and federal student
privacy laws, make the TVAAS score of each participating school publicly
available on the department's website.
49-6-2607.

(a) ESA funds shall only be used for the expenses listed in§ 49-6-2603(a)(4).
(b) The department shall establish and maintain separate ESAs for each
participating student and shall verify that the uses of ESA funds are permitted under §
49-6-2603(a)(4) and institute fraud protection measures. Use of ESA funds on tuition
and fees, computer hardware or other technological devices, tutoring services,

- 17 -

*009043*

 r
educational therapy services, summer education programs and specialized afterschool
education programs, and any other expenses identified by the department must be preapproved by the department. Pre-approval shall be requested by completing and
submitting the department's pre-approval form . The department shall develop
processes to effectuate this subsection (b) .
(c) To document compliance with subsection (a), participating schools,
providers, and eligible postsecondary institutions shall provide parents of participating
students or participating students, as applicable, with a receipt for all expenses paid to
the participating school, provider, or eligible postsecondary institution using ESA funds.
(d) A participating school, provider, or eligible postsecondary institution shall not,
in any manner, refund, rebate, or share funds from an ESA with a parent of a
participating student or a participating student. The department shall establish a
process for funds to be returned to an ESA by a participating school, provider, or eligible
postsecondary institution.
(e) To ensure the safety and equitable treatment of participating students,
participating schools shall :
(1) Comply with all state and federal health and safety laws applicable to
nonpublic schools;
(2) Certify that the participating school will not discriminate against
participating students or applicants on the basis of race, color, or national origin;
(3) Comply with § 49-5-202;
(4) Conduct criminal background checks on employe,e s; and
(5) Exclude from employment:
(A) Any person who is not permitted by state law to work in a
nonpublic school; and
(8) Any person who might reasonably pose a threat to the safety
of students.

- 18 -

*009043*

 (f) An LEA shall provide a participating school that has admitted a participating
student with a complete copy of the participating student's school records in the LEA's
possession to the extent permitted by state and federal student privacy laws.

49-6-2608.
(a)
(1) The department may suspend or terminate a participating school's or
provider's participation in the program if the department determines that the
participating school or provider has failed to comply with the requirements of this
part.
(2) The state board shall promulgate rules allowing the department to
suspend or terminate a participating school's participation in the program due to
low academic performance, as determined by the department.
(3) If the department suspends or terminates a participating school's or
provider's participation under this subsection (a), then the department shall notify
affected participating students and the parents of participating students of the
decision. If a participating school's or provider's participation in the program is
suspended or terminated, or if a participating school or provider withdraws from
the program, then affected participating students remain eligible to participate in
the program.
(b) The department may suspend or terminate a participating student from the
program, or close a legacy student's ESA, if the department determines that the
participating student's or legacy student's parent or the participating student or legacy
student has failed to comply with the requirements of this part. If the department
terminates a participating student's or legacy student's participation in the program, then
the department shall close the participating student's or legacy student's ESA.
(c) A parent of a participating student, a participating student, a legacy student,
or any other person who uses the funds deposited in a participating student's ESA for

- 19 -

*009043*

 (

expenses that do not constitute one (1) or more of the qualified expenses listed in § 496-2603(a)(4) , or a parent of a participating student, a participating student, a legacy
student, or any other person who misrepresents the nature, receipts, or other evidence
of any expenses paid by the parent of a participating student, by a participating student,
or by a legacy student is liable for restitution to the department in an amount equal to
the amount of such expenses.
(d) If a person knowingly uses ESA funds for expenses that do not constitute
one (1) or more of the qualified expenses listed in§ 49-6-2603(a)(4) with the intent to
defraud the program or knowingly misrepresents the nature, receipts, or other evidence
of any expenses paid with the intent to defraud the program, then the department may
refer the matter to the appropriate enforcement authority for criminal prosecution.
(e) Any funds remaining in an ESA that is closed in accordance with subsection
(b) must be returned to the state treasurer to be placed in the basic education program
(BEP) account of the education trust fund of 1992 under§§ 49-3-357 and 49-3-358.
(f) The state board shall promulgate rules to effectuate this section, including

rules to establish a process for a participating school's, provider's, participating
student's, or legacy student's suspension or termination from the program. The rules
must be promulgated in accordance with the Uniform Administrative Procedures Act,
compiled in title 4, chapter 5.
49-6-2609.

(a) A participating school or provider is autonomous and not an agent of this
state.
{b) The creation of the ESA program does not expand the regulatory authority of
this state, the officers of this state, or an LEA to impose any additional regulation of
participating schools or providers beyond the rules and regulations necessary to enforce
the requirements of the program.

- 20 -

*009043*

 (

(c) This state gives participating schools and providers maximum freedom to
provide for the educational needs of participating students without governmental control.
Neither a participating school nor a provider is required to alter its creed, practices,
admissions policies, or curriculum in order to accept participating students, other than as
is necessary to comply with the requirements of the program.
49-6-2610.
The state board is authorized to promulgate rules to effectuate the purposes of
this part. The rules must be promulgated in accordance with the Uniform Administrative
Procedures Act, compiled in title 4, chapter 5.
49-6-2611.
(a)

(1) The general assembly recognizes this state's legitimate interest in the
continual improvement of all LEAs and particularly the LEAs that have
consistently had the lowest performing schools on a historical basis.
Accordingly, it is the intent of this part to establish a pilot program that provides
funding for access to additional educational options to students who reside in
LEAs that have consistently and historically had the lowest performing schools.

(2)
(A) On January 1 following the third fiscal year in which the
program enrolls participating students, and every January 1 thereafter,
the office of research and education accountability (OREA), in the office
of the comptroller of the treasury, shall provide a report to the general
assembly to assist the general assembly in evaluating the efficacy of the
program. The report must include, in compliance with all state and
federal student privacy laws:
(i) The information contained in the department's annual
report prepared pursuant to§ 49-6-2606(c) ;

- 21 -

*009043*

 (

(ii) Academic performance indicators for participating
students in the program including, but not limited to, data
generated from the tests administered to participating students
pursuant to § 49-6-2606(a)(1 );
(iii) Audit reports prepared by the comptroller of the
treasury or the comptroller's designee pursuant to§ 49-6-2606(d);
(iv) A list of the LEAs that meet the requirements of § 496-2602(3){C)(i) for the most recent year in which the department
collected such information; and
(v) Recommendations for legislative action if, based upon
the list provided pursuant to subdivision (a)(2)(A)(iv), the LEAs
with students who are eligible to participate in the program under
§ 49-6-2602{3)(C){i) is no longer consistent with the intent

described in subdivision (a)(1).
(B) The department shall assist the OREA in its preparation of
the report required under this subdivision (a)(2).
(C) The OREA's initial report to the general assembly under this

subdivision (a)(2) must include the information outlined in subdivisions
(a)(2)(A)(i)-(iii) for each of the three (3) preceding school years in which
the program enrolled participating students.
(b) If any provision of this part or this part's application to any person or
circumstance is held invalid, then the invalidity must not affect other provisions or
applications of this part that can be given effect without the invalid provision or
application , and to that end the provisions of this part are severable.
(c) Notwithstanding subsection (b), if any provision of this part is held invalid,
then the invalidity shall not expand the application of this part to eligible students other
than those identified in § 49-6-2602(3).
- 22 -

*009043*

 (d) A local board of education does not have authority to assert a cause of
action, intervene in any cause of action, or provide funding for any cause of action
challenging the legality of this part.
49-6-2612.
An education savings account is a state or local public benefit under§ 4-58-102.
SECTION 2. This act shall take effect upon becoming a law, the public welfare
requiring it.

- 23 -

*009043*

,,.

 Senator Dolores Gresham

Representative Bill Dunn

Senator Jack Johnson

Representative Andy Holt

Senator Mike Bell

Representative Matthew Hill

Representative Charlie Baum

Senator Brian Kelsey

Senator Raumesh Akbari

Representative Rick Staples

- 24 -

*009043*