PRINTER'S NO. 343
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
353
Session of
2019
INTRODUCED BY J. WARD, MARTIN, ARGALL, YUDICHAK, KILLION,
PHILLIPS-HILL AND REGAN, MARCH 4, 2019
REFERRED TO EDUCATION, MARCH 4, 2019
AN ACT
Establishing the Keystone Scholarship Program for Exceptional
Students; and imposing duties on the Department of Education,
participating schools and resident school districts.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Short title.
This act shall be known and may be cited as the Keystone
Scholarship Program for Exceptional Students Act.
Section 2. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Advanced Placement Program." A program authorized by the
college board that allows a student to study college-level
subjects while enrolled in high school and to receive advanced
placement and college credit for earning a qualified score on
the course-related Advanced Placement Program exam.
"Application." The application for participation in the
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program developed by the department under section 4(12).
"Department." The Department of Education of the
Commonwealth.
"Educational Excellence Flexible Spending Account" or
"account." An account held in the name of an eligible student
into which the Commonwealth may make grants for the purpose of
paying certain education-related expenses as permitted under
section 3(b)(3).
"Eligible postsecondary institution." The term includes all
of the following:
(1) A community college operating under Article XIX-A of
the act of March 10, 1949 (P.L.30, No.14), known as the
Public School Code of 1949.
(2) A university within the State System of Higher
Education established under Article XX-A of the Public School
Code of 1949.
(3) The Pennsylvania State University.
(4) The University of Pittsburgh.
(5) Temple University.
(6) Lincoln University.
(7) Any other institution that is designated as "State-
related" by the Commonwealth.
(8) Thaddeus Stevens College of Technology.
(9) An independent institution of higher education.
"Eligible student." A school-age child who resides in this
Commonwealth, has not yet received a high school diploma and
satisfies both of the following:
(1) Is the subject of one of the following:
(i) Attended a public school in this Commonwealth in
the preceding semester or school year.
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(ii) Received funds from this program in the
preceding school year.
(iii) Will attend either kindergarten or first grade
in the upcoming semester.
(iv) Is currently a child in foster care as defined
in section 2 of the act of November 23, 2010 (P.L.1264,
No.119), known as the Children in Foster Care Act.
(v) Is a child whose adoption decree was entered not
more than one year prior to submission of the application
under section 3(b)(1).
(vi) Is a child whose parent or legal guardian is on
full-time active-duty status in the armed forces of the
United States, including members of the National Guard
and reserve on active duty orders under 10 U.S.C. § 12301
et seq. (relating to Reserve components generally) and 10
U.S.C. § 12401 et seq. (relating to Army and Air National
Guard of the United States: status).
(2) Is the subject of one of the following:
(i) an individualized education program pursuant to
the Individuals with Disabilities Education Act (Public
Law 91-230, 20 U.S.C. § 1400 et seq.) and 22 Pa. Code Ch.
14 (relating to special education services and programs);
(ii) a section 504 service agreement pursuant to
section 504 of the Rehabilitation Act of 1973 (Public Law
93-112, 29 U.S.C. § 701 et seq.) and 22 Pa. Code Ch. 15
(relating to protected handicapped students);
(iii) a gifted individualized education plan
pursuant to 22 Pa. Code Ch. 16 (relating to special
education for gifted students);
(iv) a medical diagnosis in one of the categories
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for a child with a disability under 20 U.S.C. § 1401(3)
(A) (relating to definitions); or
(v) a child eligible for early intervention services
under 55 Pa. Code § 4226.22 (relating to eligibility for
early intervention services).
"Independent institution of higher education." An
institution of higher education that is operated not for profit,
located in and incorporated or chartered by the Commonwealth and
entitled to confer degrees as specified in 24 Pa.C.S. § 6505
(relating to power to confer degrees) and to apply to itself the
designation "college" or "university" as provided for by the
standards and qualifications prescribed by the State Board of
Education under 24 Pa.C.S. Ch. 65 (relating to private colleges,
universities and seminaries).
"Parent." A resident of this Commonwealth who is a parent or
guardian of a school-age child.
"Participating school." A nonpublic school as defined in
section 922.1-A of the Public School Code of 1949, that provides
a program of instruction for kindergarten through grade 12, or a
combination of grades, and has notified the department of the
nonpublic school's intention to participate in the program and
comply with the program's requirements.
"Program." The Keystone Scholarship Program for Exceptional
Students established by this act.
"Public school." A school district, charter school, cyber
charter school, regional charter school, intermediate unit or
area vocational-technical school.
"Resident school district." The school district in which a
school-age child resides.
"School-age child." A child enrolling in kindergarten or in
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grades 1 through 12.
"State assessment." The Pennsylvania System of School
Assessment test, the Keystone Exam or another test established
or approved by the State Board of Education or the General
Assembly to meet the requirements of section 2603-B or 2604-B of
the Public School Code of 1949 or 22 Pa. Code § 4.51 (relating
to State assessment system) or required under the Every Student
Succeeds Act (Public Law 114-95, 129 Stat. 1802) or its
successor Federal statute.
"Tutoring." Tutoring services provided by a tutor or a
tutoring facility accredited by a regional or national
accrediting organization, a person holding a certificate listed
in section 1201 of the Public School Code of 1949, a person with
National Board Certification or with experience teaching in
higher education or a properly qualified private tutor as
defined in section 1327 of the Public School Code of 1949.
Section 3. Program.
(a) Establishment.--Beginning with the 2020-2021 school
year, the Keystone Scholarship Program for Exceptional Students
is established in the department.
(b) Administration.--The program shall be administered by
the department as follows:
(1) An eligible student shall qualify on an annual basis
to receive from the Commonwealth a grant to the eligible
student's account if the parent of the eligible student
agrees, in an application submitted by the parent to the
department by May 1 of the year preceding the school year in
which participation in the program is sought and accepted by
the department under section 4(4):
(i) To provide an education for the eligible student
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in at least the subjects of reading, grammar,
mathematics, social studies and science.
(ii) Not to enroll the eligible student in a public
school for a school year in which the eligible student is
participating in the program.
(iii) Not to accept a scholarship for the eligible
student under the educational improvement tax credit
program or opportunity scholarship tax credit program
established under Article XX-B of the act of March 10,
1949 (P.L.30, No.14), known as the Public School Code of
1949, in an amount which, when combined with an award
made under the program, exceeds the tuition, costs and
fees of attendance at the student's chosen school for a
school year in which the eligible student is
participating in the program.
(iv) For a student with special needs who is awarded
funds under this program, participation in the program is
a parental placement of the child under 20 U.S.C. §
1412(a)(10) (relating to State eligibility) of the
Individuals with Disabilities Education Act.
(2) If the department approves an eligible student's
application for participation in the program, the
Commonwealth shall deposit into the account of the eligible
student participating in the program an amount equal to 90%
of all State payments made to the resident school district of
the eligible student for the immediately preceding school
year divided by the resident school district's average daily
membership for the immediately preceding school year. This
amount shall be deposited on a quarterly basis, as provided
in section 4(8).
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(3) A parent of an eligible student participating in the
program shall agree in the application submitted under
paragraph (1) to use the funds deposited in the eligible
student's account for the following qualifying expenses to
educate the eligible student:
(i) Tuition and fees at a participating school.
(ii) Textbooks required by a participating school.
(iii) Payment for tutoring.
(iv) Payment for purchase of curriculum and other
materials required by the curriculum.
(v) Tuition or fees for a nonpublic online learning
program.
(vi) Fees for national norm-referenced examinations,
Advanced Placement Program examinations, State-recognized
industry certification exams, any examinations related to
college or university admission and fees for preparatory
courses for those exams.
(vii) Contribution to the eligible student's
qualified tuition program established pursuant to section
529 of the Internal Revenue Code of 1986 (Public Law 99-
514, 26 U.S.C. § 529).
(viii) Educational services and therapies, including
occupational, behavioral, physical, speech-language and
audiology therapies, from a licensed or accredited
practitioner or provider.
(ix) Tuition and fees at an eligible postsecondary
institution.
(x) Textbooks required for courses at an eligible
postsecondary institution.
(xi) Fees for account management by private
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financial management firms identified by the department
under section 4(1).
(xii) Costs associated with obtaining an industry
certification.
(xiii) Services provided under contract by a public
school.
(xiv) Computer hardware and computer software
associated with instruction or any of the qualifying
expenses described in this paragraph.
(4) A parent may appeal the department's decision to
deny acceptance into the program under 2 Pa.C.S. Chs. 1
(relating to general provisions), 5 (relating to practice and
procedure) and 7 (relating to judicial review).
(5) A provider of a service authorized under paragraph
(3) may not refund, rebate or share payment from an eligible
student's account with a parent or the eligible student in
any manner. Funds may only be refunded directly to an
account. The funds in an account may only be used for
purposes authorized under paragraph (3).
(6) An eligible student shall be counted in the average
daily membership of the eligible student's resident school
district for the purposes of calculating State aid to the
resident school district. The amount deposited by the
Commonwealth into an eligible student's account shall be
subtracted from the State aid payable to the eligible
student's resident school district.
(c) Tax consequences and status of awards.--
(1) The money in an account of an eligible student is
not taxable income to the parent of the eligible student or
to the eligible student.
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(2) An award made or funds expended from a student's
account under the program may not be construed to be an
appropriation or financial assistance to the student's chosen
school.
(d) Unused funds.--Money in an account of an eligible
student that is unused at the end of a school year shall roll
over to be used by the eligible student in subsequent years.
Upon the eligible student reaching 26 years of age, such money
shall be deposited into the General Fund.
(e) Regulations.--The State Board of Education shall
promulgate regulations, subject to the act of June 25, 1982
(P.L.633, No.181), known as the Regulatory Review Act, necessary
to implement the program.
Section 4. Duties of department.
The department shall:
(1) Solicit requests for proposals from private
financial management firms to manage the eligible student
accounts financially.
(2) Conduct or contract for the auditing of eligible
student accounts and, at a minimum, conduct random audits of
the accounts on an annual basis. An eligible student shall be
ineligible for the program in the event that the parent of
the eligible student engages in fraudulent misuse of the
eligible student account. A parent may appeal the
department's decision to make an eligible student ineligible
under 2 Pa.C.S. Chs. 1 (relating to general provisions), 5
(relating to practice and procedure) and 7 (relating to
judicial review).
(3) Refer cases of fraudulent misuse of eligible student
accounts to law enforcement agencies for investigation. The
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balance of money in an eligible student account in which
fraudulent misuse of the account has occurred shall revert to
the General Fund.
(4) Within 45 days of receipt of an application for
participation in the program submitted by a parent under
section 3(b)(1), notify the parent of a student's acceptance
or nonacceptance into the program. An eligible student shall
be accepted into the program if the student meets the
requirements of this act. A parent may appeal the
department's decision under this paragraph.
(5) Provide parents of eligible students with a written
explanation of the allowable uses of the accounts, the
responsibilities of parents and the duties of the department.
(6) In the department's discretion, deduct an amount
from the grants to accounts necessary to pay the costs of
overseeing the accounts and administering the program up to a
limit of 3%.
(7) Establish reasonable fees for private financial
management firms that manage the accounts based upon market
rates.
(8) Make payments to the accounts on a quarterly basis
on August 1, November 1, February 1 and May 1 of each year of
participation in the program.
(9) Provide for development of a system to allow parents
to pay for services by electronic funds transfer, including,
but not limited to, debit cards, electronic payment systems
or any other means of electronic payment that the department
determines to be commercially viable, cost effective and
easily understandable and usable by parents. The department
shall not adopt a system that exclusively requires parents to
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be reimbursed for out-of-pocket expenses.
(10) Develop a process by which participating schools
may inform the department of their interest in participating
in the program and demonstrate their compliance with the
requirements of this act.
(11) Ensure that eligible students and their parents are
informed annually of the participating schools in the program
by posting a list of participating schools on its publicly
accessible Internet website by April 1, 2019, and by April 1
of each year thereafter.
(12) By February 1, 2019, develop a standard application
form which can be accessed and submitted electronically that
parents of eligible students must use to apply to participate
in the program and post the standard application form on the
department's publicly accessible Internet website.
Section 5. Accountability standards for participating schools.
(a) General rule.--A participating school shall:
(1) Comply with all health and safety laws or codes that
apply to participating schools.
(2) Hold a valid occupancy permit if required by the
municipality in which the participating school is located.
(3) Comply with the applicable nondiscrimination
policies set forth in section 1981 of the Civil Rights Act of
1964 (Public Law 88-352, 78 Stat. 241) and with section 1521
of the act of March 10, 1949 (P.L.30, No.14), known as the
Public School Code of 1949.
(4) Comply with the provisions of sections 111 and 111.1
of the Public School Code of 1949.
(b) Financial accountability standards.--A participating
school shall:
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(1) Provide parents with a receipt for all qualifying
expenses incurred at the participating school.
(2) Demonstrate the participating school's financial
viability by showing the participating school can repay funds
that might be provided from eligible student accounts, if the
participating school receives $50,000 or more from the
accounts during the school year, by filing with the
department prior to the start of the school year:
(i) a surety bond payable to the Commonwealth in an
amount equal to the aggregate amount of the money from
the accounts expected to be paid during the school year
on behalf of eligible students admitted at the
participating school; or
(ii) financial information that demonstrates the
participating school has the ability to pay an aggregate
amount equal to the amount of the money from the accounts
expected to be paid during the school year on behalf of
eligible students admitted to the participating school.
(c) Academic accountability standards.--
(1) A parent of an eligible student shall ensure that:
(i) Each year in grades three through eight and once
in grades nine through twelve the eligible student takes
either the State assessment or nationally norm-referenced
tests that measure learning gains in mathematics,
language arts and, for students in grades four and eight
and in grades nine through twelve, science and provide
for value-added assessment. An eligible student for whom
standardized testing is not appropriate under the
student's individualized education program shall be
exempt from this requirement.
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(ii) The results of the tests taken by an eligible
student under subparagraph (i) are reported to the
department on an annual basis, beginning with the first
year of testing, in a manner that allows the department
to aggregate data for eligible students participating in
the program by grade level, gender, family income level
and race.
(iii) The department is informed of the eligible
student's graduation from high school.
(2) The department shall:
(i) Ensure compliance with all student privacy laws,
including the Family Educational Rights and Privacy Act
of 1974 (Public Law 90-247, 20 U.S.C. § 1232g).
(ii) Collect results for all tests taken by eligible
students under paragraph (1)(i).
(iii) Post the results of all tests taken by
eligible students under paragraph (1)(i), associated
learning gains and graduation rates for eligible students
participating in the program on the department's publicly
accessible Internet website after the third year of test
and graduation-related data collection, subject to the
requirements of the Family Educational Rights and Privacy
Act of 1974. The findings shall be aggregated by the
eligible students' grade level, gender, family income
level, number of years of participation in the program
and race.
(iv) Administer an annual parental satisfaction
survey that asks parents of eligible students
participating in the program to express:
(A) Their satisfaction with the program.
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(B) The number of years their children have
participated in the program.
(C) Their opinions on other topics, items or
issues that the department determines will elicit
information about the effectiveness of the program.
(d) Participating school autonomy.--
(1) A participating school shall be autonomous and not
an agent of the department or the Commonwealth.
(2) The department or any other State agency may not
regulate the educational program of a participating school or
education provider that accepts money from an eligible
student account.
(3) The establishment of the program shall not be
construed to expand the regulatory authority of the State,
its officers or any school district to impose any additional
regulation of nonpublic schools or education providers beyond
those necessary to enforce the requirements of the program.
Section 6. Bar of certain participating schools.
(a) General rule.--The department may bar a participating
school or education provider from participation in the program
if the department establishes that the participating school or
education provider has:
(1) routinely failed to comply with the accountability
standards established in section 5; or
(2) failed to provide an eligible student with the
educational services funded by the eligible student's
account.
(b) Notice.--If the department decides to bar a
participating school or education provider from participation in
the program, the department shall post the decision on the
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department's publicly accessible Internet website. A
participating school or education provider may appeal the
department's decision.
Section 7. Duties of resident school districts.
(a) School records.--A resident school district shall
provide a participating school or education provider that has
admitted an eligible student participating in the program with a
complete copy of the eligible student's school records
immediately upon the eligible student's enrollment in the
participating school or beginning of services from the education
provider, subject to the Family Educational Rights and Privacy
Act of 1974 (Public Law 90-247, 20 U.S.C. § 1232g).
(b) Transportation.--
(1) A resident school district shall provide
transportation for an eligible student to and from the
participating school or education provider under the same
conditions as the resident school district provides
transportation of other resident students to nonpublic
schools under section 1361 of the act of March 10, 1949
(P.L.30, No.14), known as the Public School Code of 1949.
(2) The resident school district shall qualify for State
transportation reimbursement for each eligible student so
transported.
Section 8. Legal proceedings.
(a) General rule.--In a legal proceeding challenging the
application of this act to an education service provider, the
Commonwealth bears the burden of establishing that the law is
necessary and does not impose an undue burden on the education
service provider.
(b) Liability.--No liability shall arise on the part of the
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agency, the Commonwealth or a public school or school district
based on the award of or use of an account under this act.
(c) Challenges.--If any part of this act is challenged in a
State court as violating either the Constitution of the United
States or the Constitution of Pennsylvania, parents of eligible
students and eligible students who have an account shall be
permitted to intervene as of right in such lawsuit for the
purposes of defending the account program's constitutionality.
For the purposes of judicial administration, a court may require
that all parents file a joint brief so long as they are not
required to join a brief filed on behalf of a named State
defendant.
(d) Severability.--If any provision of this act or the
application thereof to any person or circumstance is held
invalid, such invalidity shall not affect other provisions or
applications of this act which can be given effect without the
invalid provision or application, and to this end the provisions
of this act are declared to be severable.
Section 9. Effective date.
This act shall take effect in 60 days.
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