The Florida Senate

220.187  Credits for contributions to nonprofit scholarship-funding organizations.--

(1)  PURPOSE.--The purpose of this section is to:

(a)  Encourage private, voluntary contributions to nonprofit scholarship-funding organizations.

(b)  Expand educational opportunities for children of families that have limited financial resources.

(c)  Enable children in this state to achieve a greater level of excellence in their education.

(2)  DEFINITIONS.--As used in this section, the term:

(a)  "Department" means the Department of Revenue.

(b)  "Eligible contribution" means a monetary contribution from a taxpayer, subject to the restrictions provided in this section, to an eligible nonprofit scholarship-funding organization. The taxpayer making the contribution may not designate a specific child as the beneficiary of the contribution.

(c)  "Eligible nonprofit scholarship-funding organization" means a charitable organization that:

1.  Is exempt from federal income tax pursuant to s. 501(c)(3) of the Internal Revenue Code;

2.  Is a Florida entity formed under chapter 607, chapter 608, or chapter 617 and whose principal office is located in the state; and

3.  Complies with the provisions of subsection (6).

(d)  "Eligible private school" means a private school, as defined in s. 1002.01(2), located in Florida which offers an education to students in any grades K-12 and that meets the requirements in subsection (8).

(e)  "Owner or operator" includes:

1.  An owner, president, officer, or director of an eligible nonprofit scholarship-funding organization or a person with equivalent decisionmaking authority over an eligible nonprofit scholarship-funding organization.

2.  An owner, operator, superintendent, or principal of an eligible private school or a person with equivalent decisionmaking authority over an eligible private school.

(3)  PROGRAM; SCHOLARSHIP ELIGIBILITY.--The Corporate Income Tax Credit Scholarship Program is established. A student is eligible for a corporate income tax credit scholarship if the student qualifies for free or reduced-price school lunches under the National School Lunch Act and:

(a)  Was counted as a full-time equivalent student during the previous state fiscal year for purposes of state per-student funding;

(b)  Received a scholarship from an eligible nonprofit scholarship-funding organization or from the State of Florida during the previous school year; or

(c)  Is eligible to enter kindergarten or first grade.

Contingent upon available funds, a student may continue in the scholarship program as long as the student's family income level does not exceed 200 percent of the federal poverty level.

(4)  SCHOLARSHIP PROHIBITIONS.--A student is not eligible for a scholarship while he or she is:

(a)  Enrolled in a school operating for the purpose of providing educational services to youth in Department of Juvenile Justice commitment programs;

(b)  Receiving a scholarship from another eligible nonprofit scholarship-funding organization under this section;

(c)  Receiving an educational scholarship pursuant to chapter 1002;

(d)  Participating in a home education program as defined in s. 1002.01(1);

(e)  Participating in a private tutoring program pursuant to s. 1002.43;

(f)  Participating in a virtual school, correspondence school, or distance learning program that receives state funding pursuant to the student's participation unless the participation is limited to no more than two courses per school year; or

(g)  Enrolled in the Florida School for the Deaf and the Blind.

(5)  AUTHORIZATION TO GRANT SCHOLARSHIP FUNDING TAX CREDITS; LIMITATIONS ON INDIVIDUAL AND TOTAL CREDITS.--

(a)  There is allowed a credit of 100 percent of an eligible contribution against any tax due for a taxable year under this chapter. However, such a credit may not exceed 75 percent of the tax due under this chapter for the taxable year, after the application of any other allowable credits by the taxpayer. The credit granted by this section shall be reduced by the difference between the amount of federal corporate income tax taking into account the credit granted by this section and the amount of federal corporate income tax without application of the credit granted by this section.

(b)  The total amount of tax credits and carryforward of tax credits which may be granted each state fiscal year under this section is $88 million. At least 1 percent of the total statewide amount authorized for the tax credit shall be reserved for taxpayers who meet the definition of a small business provided in s. 288.703(1) at the time of application.

(c)  A taxpayer who files a Florida consolidated return as a member of an affiliated group pursuant to s. 220.131(1) may be allowed the credit on a consolidated return basis; however, the total credit taken by the affiliated group is subject to the limitation established under paragraph (a).

(d)  Effective for tax years beginning January 1, 2006, a taxpayer may rescind all or part of its allocated tax credit under this section. The amount rescinded shall become available for purposes of the cap for that state fiscal year under this section to an eligible taxpayer as approved by the department if the taxpayer receives notice from the department that the rescindment has been accepted by the department and the taxpayer has not previously rescinded any or all of its tax credit allocation under this section more than once in the previous 3 tax years. Any amount rescinded under this paragraph shall become available to an eligible taxpayer on a first-come, first-served basis based on tax credit applications received after the date the rescindment is accepted by the department.

(6)  OBLIGATIONS OF ELIGIBLE NONPROFIT SCHOLARSHIP-FUNDING ORGANIZATIONS.--An eligible nonprofit scholarship-funding organization:

(a)  Must comply with the antidiscrimination provisions of 42 U.S.C. s. 2000d.

(b)  Must comply with the following background check requirements:

1.  All owners and operators as defined in subparagraph (2)(e)1. are, upon employment or engagement to provide services, subject to level 2 background screening as provided under chapter 435. The fingerprints for the background screening must be electronically submitted to the Department of Law Enforcement and can be taken by an authorized law enforcement agency or by an employee of the eligible nonprofit scholarship-funding organization or a private company who is trained to take fingerprints. However, the complete set of fingerprints of an owner or operator may not be taken by the owner or operator. The results of the state and national criminal history check shall be provided to the Department of Education for screening under chapter 435. The cost of the background screening may be borne by the eligible nonprofit scholarship-funding organization or the owner or operator.

2.  Every 5 years following employment or engagement to provide services or association with an eligible nonprofit scholarship-funding organization, each owner or operator must meet level 2 screening standards as described in s. 435.04, at which time the nonprofit scholarship-funding organization shall request the Department of Law Enforcement to forward the fingerprints to the Federal Bureau of Investigation for level 2 screening. If the fingerprints of an owner or operator are not retained by the Department of Law Enforcement under subparagraph 3., the owner or operator must electronically file a complete set of fingerprints with the Department of Law Enforcement. Upon submission of fingerprints for this purpose, the eligible nonprofit scholarship-funding organization shall request that the Department of Law Enforcement forward the fingerprints to the Federal Bureau of Investigation for level 2 screening, and the fingerprints shall be retained by the Department of Law Enforcement under subparagraph 3.

3.  Beginning July 1, 2007, all fingerprints submitted to the Department of Law Enforcement as required by this paragraph must be retained by the Department of Law Enforcement in a manner approved by rule and entered in the statewide automated fingerprint identification system authorized by s. 943.05(2)(b). The fingerprints must thereafter be available for all purposes and uses authorized for arrest fingerprint cards entered in the statewide automated fingerprint identification system pursuant to s. 943.051

4.  Beginning July 1, 2007, the Department of Law Enforcement shall search all arrest fingerprint cards received under s. 943.051 against the fingerprints retained in the statewide automated fingerprint identification system under subparagraph 3. Any arrest record that is identified with an owner's or operator's fingerprints must be reported to the Department of Education. The Department of Education shall participate in this search process by paying an annual fee to the Department of Law Enforcement and by informing the Department of Law Enforcement of any change in the employment, engagement, or association status of the owners or operators whose fingerprints are retained under subparagraph 3. The Department of Law Enforcement shall adopt a rule setting the amount of the annual fee to be imposed upon the Department of Education for performing these services and establishing the procedures for the retention of owner and operator fingerprints and the dissemination of search results. The fee may be borne by the owner or operator of the nonprofit scholarship-funding organization.

5.  A nonprofit scholarship-funding organization whose owner or operator fails the level 2 background screening shall not be eligible to provide scholarships under this section.

6.  A nonprofit scholarship-funding organization whose owner or operator in the last 7 years has filed for personal bankruptcy or corporate bankruptcy in a corporation of which he or she owned more than 20 percent shall not be eligible to provide scholarships under this section.

(c)  Must not have an owner or operator who owns or operates an eligible private school that is participating in the scholarship program.

(d)  Must provide scholarships, from eligible contributions, to eligible students for:

1.  Tuition or textbook expenses for, or transportation to, an eligible private school. At least 75 percent of the scholarship funding must be used to pay tuition expenses; or

2.  Transportation expenses to a Florida public school that is located outside the district in which the student resides or to a lab school as defined in s. 1002.32

(e)  Must give priority to eligible students who received a scholarship from an eligible nonprofit scholarship-funding organization or from the State of Florida during the previous school year.

(f)  Must provide a scholarship to an eligible student on a first-come, first-served basis unless the student qualifies for priority pursuant to paragraph (e).

(g)  May not restrict or reserve scholarships for use at a particular private school or provide scholarships to a child of an owner or operator.

(h)  Must allow an eligible student to attend any eligible private school and must allow a parent to transfer a scholarship during a school year to any other eligible private school of the parent's choice.

(i)  Must obligate, in the same fiscal year in which the contribution was received, 100 percent of the eligible contribution to provide annual or partial-year scholarships; however, up to 25 percent of the total contribution may be carried forward for expenditure in the following state fiscal year. A scholarship-funding organization must, before granting a scholarship for an academic year, document each scholarship student's eligibility for that academic year. A scholarship-funding organization may not grant multiyear scholarships in one approval process. No portion of eligible contributions may be used for administrative expenses. All interest accrued from contributions must be used for scholarships.

(j)  Must maintain separate accounts for scholarship funds and operating funds.

(k)  With the prior approval of the Department of Education, may transfer funds to another eligible nonprofit scholarship-funding organization if additional funds are required to meet scholarship demand at the receiving nonprofit scholarship-funding organization. A transfer shall be limited to the greater of $500,000 or 20 percent of the total contributions received by the nonprofit scholarship-funding organization making the transfer. All transferred funds must be deposited by the receiving nonprofit scholarship-funding organization into its scholarship accounts. All transferred amounts received by any nonprofit scholarship-funding organization must be separately disclosed in the annual financial and compliance audit required in this section.

(l)  Must provide to the Auditor General and the Department of Education an annual financial and compliance audit of its accounts and records conducted by an independent certified public accountant and in accordance with rules adopted by the Auditor General. The audit must be conducted in compliance with generally accepted auditing standards and must include a report on financial statements presented in accordance with generally accepted accounting principles set forth by the American Institute of Certified Public Accountants for not-for-profit organizations and a determination of compliance with the statutory eligibility and expenditure requirements set forth in this section. Audits must be provided to the Auditor General and the Department of Education within 180 days after completion of the eligible nonprofit scholarship-funding organization's fiscal year.

(m)  Must prepare and submit quarterly reports to the Department of Education pursuant to paragraph (9)(m). In addition, an eligible nonprofit scholarship-funding organization must submit in a timely manner any information requested by the Department of Education relating to the scholarship program.

Any and all information and documentation provided to the Department of Education and the Auditor General relating to the identity of a taxpayer that provides an eligible contribution under this section shall remain confidential at all times in accordance with s. 213.053

(7)  PARENT AND STUDENT RESPONSIBILITIES FOR PROGRAM PARTICIPATION.--

(a)  The parent must select an eligible private school and apply for the admission of his or her child.

(b)  The parent must inform the child's school district when the parent withdraws his or her child to attend an eligible private school.

(c)  Any student participating in the scholarship program must remain in attendance throughout the school year unless excused by the school for illness or other good cause.

(d)  Each parent and each student has an obligation to the private school to comply with the private school's published policies.

(e)  The parent shall ensure that the student participating in the scholarship program takes the norm-referenced assessment offered by the private school. The parent may also choose to have the student participate in the statewide assessments pursuant to s. 1008.22 If the parent requests that the student participating in the scholarship program take statewide assessments pursuant to s. 1008.22, the parent is responsible for transporting the student to the assessment site designated by the school district.

(f)  Upon receipt of a scholarship warrant from the eligible nonprofit scholarship-funding organization, the parent to whom the warrant is made must restrictively endorse the warrant to the private school for deposit into the account of the private school. The parent may not designate any entity or individual associated with the participating private school as the parent's attorney in fact to endorse a scholarship warrant. A participant who fails to comply with this paragraph forfeits the scholarship.

(8)  PRIVATE SCHOOL ELIGIBILITY AND OBLIGATIONS.--An eligible private school may be sectarian or nonsectarian and must:

(a)  Comply with all requirements for private schools participating in state school choice scholarship programs pursuant to s. 1002.421

(b)  Provide to the eligible nonprofit scholarship-funding organization, upon request, all documentation required for the student's participation, including the private school's and student's fee schedules.

(c)  Be academically accountable to the parent for meeting the educational needs of the student by:

1.  At a minimum, annually providing to the parent a written explanation of the student's progress.

2.  Annually administering or making provision for students participating in the scholarship program to take one of the nationally norm-referenced tests identified by the Department of Education. Students with disabilities for whom standardized testing is not appropriate are exempt from this requirement. A participating private school must report a student's scores to the parent and to the independent research organization selected by the Department of Education as described in paragraph (9)(j).

3.  Cooperating with the scholarship student whose parent chooses to participate in the statewide assessments pursuant to s. 1008.32

(d)  Employ or contract with teachers who have regular and direct contact with each student receiving a scholarship under this section at the school's physical location.

The inability of a private school to meet the requirements of this subsection shall constitute a basis for the ineligibility of the private school to participate in the scholarship program as determined by the Department of Education.

(9)  DEPARTMENT OF EDUCATION OBLIGATIONS.--The Department of Education shall:

(a)  Annually submit to the department, by March 15, a list of eligible nonprofit scholarship-funding organizations that meet the requirements of paragraph (2)(c).

(b)  Annually verify the eligibility of nonprofit scholarship-funding organizations that meet the requirements of paragraph (2)(c).

(c)  Annually verify the eligibility of private schools that meet the requirements of subsection (8).

(d)  Annually verify the eligibility of expenditures as provided in paragraph (6)(d) using the audit required by paragraph (6)(l).

(e)  Establish a toll-free hotline that provides parents and private schools with information on participation in the scholarship program.

(f)  Establish a process by which individuals may notify the Department of Education of any violation by a parent, private school, or school district of state laws relating to program participation. The Department of Education shall conduct an inquiry of any written complaint of a violation of this section, or make a referral to the appropriate agency for an investigation, if the complaint is signed by the complainant and is legally sufficient. A complaint is legally sufficient if it contains ultimate facts that show that a violation of this section or any rule adopted by the State Board of Education has occurred. In order to determine legal sufficiency, the Department of Education may require supporting information or documentation from the complainant. A department inquiry is not subject to the requirements of chapter 120.

(g)  Require an annual, notarized, sworn compliance statement by participating private schools certifying compliance with state laws and shall retain such records.

(h)  Cross-check the list of participating scholarship students with the public school enrollment lists to avoid duplication.

(i)  In accordance with State Board of Education rule, identify and select the nationally norm-referenced tests that are comparable to the norm-referenced provisions of the Florida Comprehensive Assessment Test (FCAT) provided that the FCAT may be one of the tests selected. However, the Department of Education may approve the use of an additional assessment by the school if the assessment meets industry standards of quality and comparability.

(j)  Select an independent research organization, which may be a public or private entity or university, to which participating private schools must report the scores of participating students on the nationally norm-referenced tests administered by the private school. The independent research organization must annually report to the Department of Education on the year-to-year improvements of participating students. The independent research organization must analyze and report student performance data in a manner that protects the rights of students and parents as mandated in 20 U.S.C. s. 1232g, the Family Educational Rights and Privacy Act, and must not disaggregate data to a level that will disclose the academic level of individual students or of individual schools. To the extent possible, the independent research organization must accumulate historical performance data on students from the Department of Education and private schools to describe baseline performance and to conduct longitudinal studies. To minimize costs and reduce time required for third-party analysis and evaluation, the Department of Education shall conduct analyses of matched students from public school assessment data and calculate control group learning gains using an agreed-upon methodology outlined in the contract with the third-party evaluator. The sharing of student data must be in accordance with requirements of 20 U.S.C. s. 1232g, the Family Educational Rights and Privacy Act, and shall be for the sole purpose of conducting the evaluation. All parties must preserve the confidentiality of such information as required by law.

(k)  Notify an eligible nonprofit scholarship-funding organization of any of the organization's identified students who are receiving educational scholarships pursuant to chapter 1002.

(l)  Notify an eligible nonprofit scholarship-funding organization of any of the organization's identified students who are receiving corporate income tax credit scholarships from other eligible nonprofit scholarship-funding organizations.

(m)  Require quarterly reports by an eligible nonprofit scholarship-funding organization regarding the number of students participating in the scholarship program, the private schools at which the students are enrolled, and other information deemed necessary by the Department of Education.

(n)1.  Conduct random site visits to private schools participating in the Corporate Tax Credit Scholarship Program. The purpose of the site visits is solely to verify the information reported by the schools concerning the enrollment and attendance of students, the credentials of teachers, background screening of teachers, and teachers' fingerprinting results. The Department of Education may not make more than seven random site visits each year and may not make more than one random site visit each year to the same private school.

2.  Annually, by December 15, report to the Governor, the President of the Senate, and the Speaker of the House of Representatives the Department of Education's actions with respect to implementing accountability in the scholarship program under this section and s. 1002.421, any substantiated allegations or violations of law or rule by an eligible private school under this program concerning the enrollment and attendance of students, the credentials of teachers, background screening of teachers, and teachers' fingerprinting results and the corrective action taken by the Department of Education.

(10)  COMMISSIONER OF EDUCATION AUTHORITY AND OBLIGATIONS.--

(a)  The Commissioner of Education shall deny, suspend, or revoke a private school's participation in the scholarship program if it is determined that the private school has failed to comply with the provisions of this section. However, in instances in which the noncompliance is correctable within a reasonable amount of time and in which the health, safety, or welfare of the students is not threatened, the commissioner may issue a notice of noncompliance that shall provide the private school with a timeframe within which to provide evidence of compliance prior to taking action to suspend or revoke the private school's participation in the scholarship program.

(b)  The commissioner's determination is subject to the following:

1.  If the commissioner intends to deny, suspend, or revoke a private school's participation in the scholarship program, the Department of Education shall notify the private school of such proposed action in writing by certified mail and regular mail to the private school's address of record with the Department of Education. The notification shall include the reasons for the proposed action and notice of the timelines and procedures set forth in this paragraph.

2.  The private school that is adversely affected by the proposed action shall have 15 days from receipt of the notice of proposed action to file with the Department of Education's agency clerk a request for a proceeding pursuant to ss. 120.569 and 120.57 If the private school is entitled to a hearing under s. 120.57(1), the Department of Education shall forward the request to the Division of Administrative Hearings.

3.  Upon receipt of a request referred pursuant to this paragraph, the director of the Division of Administrative Hearings shall expedite the hearing and assign an administrative law judge who shall commence a hearing within 30 days after the receipt of the formal written request by the division and enter a recommended order within 30 days after the hearing or within 30 days after receipt of the hearing transcript, whichever is later. Each party shall be allowed 10 days in which to submit written exceptions to the recommended order. A final order shall be entered by the agency within 30 days after the entry of a recommended order. The provisions of this subparagraph may be waived upon stipulation by all parties.

(c)  The commissioner may immediately suspend payment of scholarship funds if it is determined that there is probable cause to believe that there is:

1.  An imminent threat to the health, safety, and welfare of the students; or

2.  Fraudulent activity on the part of the private school. Notwithstanding s. 1002.22(3), in incidents of alleged fraudulent activity pursuant to this section, the Department of Education's Office of Inspector General is authorized to release personally identifiable records or reports of students to the following persons or organizations:

a.  A court of competent jurisdiction in compliance with an order of that court or the attorney of record in accordance with a lawfully issued subpoena, consistent with the Family Educational Rights and Privacy Act, 20 U.S.C. s. 1232g.

b.  A person or entity authorized by a court of competent jurisdiction in compliance with an order of that court or the attorney of record pursuant to a lawfully issued subpoena, consistent with the Family Educational Rights and Privacy Act, 20 U.S.C. s. 1232g.

c.  Any person, entity, or authority issuing a subpoena for law enforcement purposes when the court or other issuing agency has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed, consistent with the Family Educational Rights and Privacy Act, 20 U.S.C. s. 1232g, and 34 C.F.R. s. 99.31.

The commissioner's order suspending payment pursuant to this paragraph may be appealed pursuant to the same procedures and timelines as the notice of proposed action set forth in paragraph (b).

(11)  SCHOLARSHIP AMOUNT AND PAYMENT.--

(a)  The amount of a scholarship provided to any student for any single school year by an eligible nonprofit scholarship-funding organization from eligible contributions shall not exceed the following annual limits:

1.  Three thousand seven hundred fifty dollars for a scholarship awarded to a student enrolled in an eligible private school.

2.  Five hundred dollars for a scholarship awarded to a student enrolled in a Florida public school that is located outside the district in which the student resides or in a lab school as defined in s. 1002.32

(b)  Payment of the scholarship by the eligible nonprofit scholarship-funding organization shall be by individual warrant made payable to the student's parent. If the parent chooses that his or her child attend an eligible private school, the warrant must be delivered by the eligible nonprofit scholarship-funding organization to the private school of the parent's choice, and the parent shall restrictively endorse the warrant to the private school. An eligible nonprofit scholarship-funding organization shall ensure that the parent to whom the warrant is made restrictively endorsed the warrant to the private school for deposit into the account of the private school.

(c)  An eligible nonprofit scholarship-funding organization shall obtain verification from the private school of a student's continued attendance at the school prior to each scholarship payment.

(d)  Payment of the scholarship shall be made by the eligible nonprofit scholarship-funding organization no less frequently than on a quarterly basis.

(12)  ADMINISTRATION; RULES.--

(a)  If the credit granted pursuant to this section is not fully used in any one year because of insufficient tax liability on the part of the corporation, the unused amount may be carried forward for a period not to exceed 3 years; however, any taxpayer that seeks to carry forward an unused amount of tax credit must submit an application for allocation of tax credits or carryforward credits as required in paragraph (d) in the year that the taxpayer intends to use the carryforward. This carryforward applies to all approved contributions made after January 1, 2002. A taxpayer may not convey, assign, or transfer the credit authorized by this section to another entity unless all of the assets of the taxpayer are conveyed, assigned, or transferred in the same transaction.

(b)  An application for a tax credit pursuant to this section shall be submitted to the department on forms established by rule of the department.

(c)  The department and the Department of Education shall develop a cooperative agreement to assist in the administration of this section.

(d)  The department shall adopt rules necessary to administer this section, including rules establishing application forms and procedures and governing the allocation of tax credits and carryforward credits under this section on a first-come, first-served basis.

(e)  The State Board of Education shall adopt rules pursuant to ss. 120.536(1) and 120.54 to administer this section as it relates to the roles of the Department of Education and the Commissioner of Education.

(13)  DEPOSITS OF ELIGIBLE CONTRIBUTIONS.--All eligible contributions received by an eligible nonprofit scholarship-funding organization shall be deposited in a manner consistent with s. 17.57(2).

History.--s. 5, ch. 2001-225; s. 42, ch. 2002-218; s. 258, ch. 2003-261; s. 9, ch. 2003-391; s. 16, ch. 2004-5; s. 2, ch. 2006-75.