This week, the Goldwater institute called on Arizona Superintendent of Public Instruction Kathy Hoffman to release the funds owed to Empowerment Scholarship Account (ESA) funds to parents entitled to them.
According to Jenna Bentley writing on Goldwater’s In Defense of Liberty blog, “Every quarter, Arizona parents whose children receive Empowerment Scholarship Account (ESA) funds must submit expense reports to account for the books, tuition, tutoring, curriculum, therapies, and other teaching tools that they purchased through their ESA. Parents are under strict deadlines to submit these forms in order to have their accounts renewed each year and have new funds disbursed to them each quarter. In turn, these parents rely on the Arizona Department of Education (ADE) to promptly disburse the ESA funds to them so that they can continue to provide those much needed goods and services to their children.”
Hoffman’s tenure has been mired in controversy over the handling of the funds. Hoffman expressed strong opposition to the ESA program while running for the superintendent’s office in 2018.
Hoffman’s opposition to the ESA program has caused critics to question why the Arizona Department of Education (ADE), under Hoffman’s leadership, has struggled to fulfill the financial obligation to ESA families. Critics note that the ADE under the leadership of former Superintendent Diane Douglas was able to deliver the funds despite the fact that Douglas’ budget for the program was smaller than Hoffman’s.
On Friday, State Director for American Federation for Children Steve Smith discussed Hoffman’s handling of the ESA money and its impact on families:
— James T Harris (@JamesTHarris) November 9, 2019
Goldwater attorney Tim Sandefur wrote Hoffman:
We have been contacted by numerous families participating in the Empowerment Scholarship Account program, who have not been paid funds due to them with regard to the second quarter of the fiscal year.
As you know, A.R.S. § 15-2403(F) requires the Department to “make quarterly transfers of the amount calculated pursuant to section 15-2402, subsection C to the treasurer for deposit into the empowerment scholarship account of each qualified student.” This has not been done.
The Department contracted to release the funds for the second quarter between the dates of October 15 and October 30. The Department has failed to release these funds to at least 126 separate families, and is therefore currently in violation of its contractual obligations to these families. This failure to comply is affecting children who will not be able to acquire the educational services that they are entitled to receive.
In addition the failure to timely fund these accounts is also a violation Arizona statute, A.R.S. § 15-763 which requires that “[a]ll children with disabilities … receive special education programming commensurate with their abilities and needs. . . . Special education services shall be provided at no cost to the parents of children with disabilities.”
Not only do these unwarranted delays violate state law, they also violate federal law with regard to services for children who fall into an identified category of special need. 20 U.S.C. § 1412(a)(l)(A) requires that:
“A free and appropriate public education [be made] available to all children with disabilities residing in the State between the ages of 3 and 21, inclusive, including children with disabilities who have been suspended or expelled from school.”
The Department’s failure to timely provide funds is also a violation of 34 C.F.R. § 300.154 (1), which makes the State responsible to pay for any services necessary to fund the educational objectives of a child with special needs due to a disability that falls within the acceptable category of need identified by the Education of Individuals with Disabilities Act. All payments must be timely made even during the pendency of a dispute.
Pursuant to 20 U.S.C. § 1403, the State of Arizona and it’s officers have no immunity from suit for violation of the Education of Individuals with Disabilities Act.
In order to avoid costly and time-consuming litigation, we ask that the Department to fulfill its contractual and legal obligations and provide the funds necessary for, and contractually guaranteed for, the educational expenses in special education services for the students.
From the ADE:
To be eligible for the Empowerment Scholarship Account (ESA) Program, the student and parent/guardian must reside in Arizona and meet program criteria.
Students can qualify for the Empowerment Scholarship Account Program under the following categories:
● K-12 Student with Disability
● Preschool Student with Disability
● Active Military
● Legal Guardian is Legally Blind, Deaf or Hard of Hearing
● Resides within Boundaries, and Attends, D or F Rated School
● Resides on an Indian Reservation
● Sibling of Qualifying Applicant
● Ward of Court
Additional criteria must also be met, depending on which category the student may qualify for.
These qualifications are based on the most recent legislative updates and are subject to change annually. For specific eligibility requirements, please visit the ESA website at www.azed.gov/esa, call 602-364-1969, or email the Empowerment Scholarship Account Program team at firstname.lastname@example.org.
“It is our hope that ADE does the right thing and comes into compliance, so that ESA families can move on with their educational plans,” writes Bentley. “However, the Goldwater Institute is ready to defend these families to ensure this vital program is protected.”