Gerald M. Zelin, a resident of Portsmouth, N.H., has practiced education law for nearly 50 years. He is a shareholder with the law firm of Drummond Woodsum, which represents many school districts in both New Hampshire and Maine. The opinions expressed in this piece are not necessarily Drummond Woodsum’s.

Two bills pending in the New Hampshire legislature, House Bill 115 and Senate Bill 295, propose to amend New Hampshire’s school voucher law.

The law offers public money to help defray tuition, transportation, technology, books and other expenses when parents enroll their children in private schools, religious schools, online schools, home-based programs or public schools located outside the district where the family resides.

Vouchers are currently available only to families whose annual household income is under 350 percent of the federal poverty guideline. The proposed amendments would abolish the income limits, making accessibility to vouchers “universal.”

The vouchers are funded by New Hampshire’s Education Trust Fund, which is fed by a variety of sources including taxpayer dollars. The amount of each student’s voucher is based on what the school district where the student resides would have received had the child attended that district’s public schools. This includes: $4,182 annually as basic “adequacy aid” plus bonuses or “differentiated aid” if the student qualifies for special education ($2,142 annually), free or reduced-price meals ($2,346 annually) or as an English Language Learner ($816 annually).

Parents are permitted to supplement the voucher with their own funds. Thus, as the Portsmouth Herald reported in November, 64 percent of all EFA students were already attending private schools or home education programs before joining the EFA program.

Amidst all the controversies surrounding the EFA statute, scant attention has been paid to the state Board of Education’s rules implementing the statute.

Those rules, at Ed 804.01(a) and (c), include a gimmick allowing EFA students who do not qualify for special education to receive an extra $2,142 annually in voucher money as if they truly qualified.

Amazingly, parents need not spend any of the voucher money, not even the special education bonus, on special education!

Here’s how the state board’s rules bloat vouchers by an additional $2,142 annually: The state and federal special education laws establish a process for determining whether a non-EFA child qualifies for special education. First, the school district evaluates the student. Next, an IEP team consisting of school district personnel and the student’s parents reviews the results of that evaluation and any independent evaluations the parents obtained.

The IEP team may identify a child as eligible for special education only if the student satisfies both prongs of the following two-prong test. First, the student must have at least one of the disabilities listed in the special education laws. Secondly, as a result of that disability, the student must require specially designed instruction in order to make appropriate educational progress. Parents who disagree with the IEP team’s decision may appeal to an independent hearing officer appointed by the state Department of Education.

The state board’s EFA rules allow parents to bypass what the special education laws demand, such as testing by the school district and an eligibility determination by the IEP team.

According to these rules, parents may instead purchase independent evaluations by licensed specialists anywhere in the country. If the evaluator finds the student eligible for special education, parents gain the $2,142 bonus.

These EFA rules encourage counterfeit findings of eligibility for the bonus. For example, they fail to recite the two-prong test set forth in the special education laws. This invites naive or dishonest evaluators to find students eligible for special education by simply diagnosing disabilities, such as the widespread condition of ADHD, without addressing whether the disabilities are so severe as to necessitate specially designed instruction.

Since the Children’s Scholarship Fund keeps 10 percent of every voucher, it has no incentive to weed out shoddy independent evaluations.

The state Department of Education’s Jan. 2024 instructions for EFA students further encourage counterfeit eligibility for the special education bonus. These instructions advise that the mere existence of a “disabling condition” is enough to gain the bonus. They jettison the question of whether the student requires specialized instruction as a result of the disability.

According to data published by the state Department of Education, during the 2024-25 school year 377 EFA students received the special education bonus. The Department has not revealed how many of these students gained the bonus through independent evaluations that bypassed the IEP team process or that failed to address whether the student actually requires specialized instruction.

Even if the legislature repeals the family income limits in New Hampshire’s EFA statute, converting the program into welfare for the rich, it should amend the statute by adding the following: (a) that the special education bonus shall be available only to students who truly qualify for special education; and (b) that the bonus be spent on special education.

For a fuller critique of the EFA program, see my Feb. 21, 2024 column posted at www.indepthnh.org.