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2016 Florida Statutes
SECTION 385
The Gardiner Scholarship.
The Gardiner Scholarship.
1002.385 The Gardiner Scholarship.—
(1) ESTABLISHMENT OF PROGRAM.—The Gardiner Scholarship Program is established to provide the option for a parent to better meet the individual educational needs of his or her eligible child. All written explanatory materials, state websites, scholarship organization materials, letters to parents, scholarship agreements, and any other information describing this program to the public shall refer to a scholarship under the program as the “Gardiner Scholarship.”
(2) DEFINITIONS.—As used in this section, the term:
(a) “Approved provider” means a provider approved by the Agency for Persons with Disabilities, a health care practitioner as defined in s. 456.001(4), or a provider approved by the department pursuant to s. 1002.66.
(b) “Curriculum” means a complete course of study for a particular content area or grade level, including any required supplemental materials and associated online instruction.
(c) “Department” means the Department of Education.
(d) “Disability” means, for a 3- or 4-year-old child or for a student in kindergarten to grade 12, autism spectrum disorder, as defined in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, published by the American Psychiatric Association; cerebral palsy, as defined in s. 393.063(6); Down syndrome, as defined in s. 393.063(15); an intellectual disability, as defined in s. 393.063(24); Phelan-McDermid syndrome, as defined in s. 393.063(28); Prader-Willi syndrome, as defined in s. 393.063(29); spina bifida, as defined in s. 393.063(40); being a high-risk child, as defined in s. 393.063(23)(a); muscular dystrophy; and Williams syndrome.
(e) “Eligible nonprofit scholarship-funding organization” or “organization” means a nonprofit scholarship-funding organization that is approved pursuant to s. 1002.395(16).
(f) “Eligible postsecondary educational institution” means a Florida College System institution; a state university; a school district technical center; a school district adult general education center; an independent college or university that is eligible to participate in the William L. Boyd, IV, Florida Resident Access Grant Program under s. 1009.89; or an accredited independent postsecondary educational institution, as defined in s. 1005.02, which is licensed to operate in the state pursuant to requirements specified in part III of chapter 1005.
(g) “Eligible private school” means a private school, as defined in s. 1002.01, which is located in this state, which offers an education to students in any grade from kindergarten to grade 12, and which meets the requirements of:
(h) “IEP” means individual education plan.
(i) “Parent” means a resident of this state who is a parent, as defined in s. 1000.21.
(j) “Program” means the Gardiner Scholarship Program established in this section.
(3) PROGRAM ELIGIBILITY.—A parent of a student with a disability may request and receive from the state a Gardiner Scholarship for the purposes specified in subsection (5) if:
(a) The student:
1. Is a resident of this state;
2. Is 3 or 4 years of age on or before September 1 of the year in which the student applies for program participation or is eligible to enroll in kindergarten through grade 12 in a public school in this state;
3. Has a disability as defined in paragraph (2)(d); and
4. Is the subject of an IEP written in accordance with rules of the State Board of Education or has received a diagnosis of a disability from a physician who is licensed under chapter 458 or chapter 459 or a psychologist who is licensed under chapter 490.
(b) The parent has applied to an eligible nonprofit scholarship-funding organization to participate in the program by February 1 before the school year in which the student will participate or an alternative date as set by the organization for any vacant, funded slots. The request must be communicated directly to the organization in a manner that creates a written or electronic record of the request and the date of receipt of the request. In addition to the application and any documentation required by the organization or by State Board of Education rule, the parent may submit a final verification document pursuant to this paragraph to receive scholarship funds in the student’s account before the department confirms program eligibility pursuant to paragraph (9)(e). The final verification document must consist of one of the following items applicable to the student:
1. A completed withdrawal form from the school district, if the student was enrolled in a public school before the determination of program eligibility.
2. A letter of admission or enrollment from an eligible private school for the fiscal year in which the student wishes to participate and, if applicable, a copy of the notification from the private school that the student has withdrawn from the John M. McKay Scholarships for Students with Disabilities Program or the Florida Tax Credit Scholarship Program.
(4) PROGRAM PROHIBITIONS.—A student is not eligible for the program if he or she is:
(a) Enrolled in a public school, including, but not limited to, the Florida School for the Deaf and the Blind; the Florida Virtual School; the College-Preparatory Boarding Academy; a developmental research school authorized under s. 1002.32; a charter school authorized under s. 1002.33, s. 1002.331, or s. 1002.332; or a virtual education program authorized under s. 1002.45. For purposes of this paragraph, a 3- or 4-year-old child who receives services funded through the Florida Education Finance Program is considered to be a student enrolled in a public school. Funding provided under this section for a child eligible for enrollment in the Voluntary Prekindergarten Education Program shall constitute funding for the child under part V of this chapter, and no additional funding shall be provided for the child under part V.
(b) Enrolled in a school operating for the purpose of providing educational services to youth in the Department of Juvenile Justice commitment programs.
(c) Receiving a scholarship pursuant to the Florida Tax Credit Scholarship Program under s. 1002.395 or the John M. McKay Scholarships for Students with Disabilities Program under s. 1002.39.
(d) Receiving any other educational scholarship pursuant to this chapter.
(5) AUTHORIZED USES OF PROGRAM FUNDS.—Program funds must be used to meet the individual educational needs of an eligible student and may be spent for the following purposes:
(a) Instructional materials, including digital devices, digital periphery devices, and assistive technology devices that allow a student to access instruction or instructional content and training on the use of and maintenance agreements for these devices.
(b) Curriculum as defined in paragraph (2)(b).
(c) Specialized services by approved providers that are selected by the parent. These specialized services may include, but are not limited to:
2. Services provided by speech-language pathologists as defined in s. 468.1125.
3. Occupational therapy services as defined in s. 468.203.
4. Services provided by physical therapists as defined in s. 486.021.
5. Services provided by listening and spoken language specialists and an appropriate acoustical environment for a child who is deaf or hard of hearing and who has received an implant or assistive hearing device.
(d) Enrollment in, or tuition or fees associated with enrollment in, a home education program, an eligible private school, an eligible postsecondary educational institution or a program offered by the institution, a private tutoring program authorized under s. 1002.43, a virtual program offered by a department-approved private online provider that meets the provider qualifications specified in s. 1002.45(2)(a), the Florida Virtual School as a private paying student, or an approved online course offered pursuant to s. 1003.499 or s. 1004.0961.
(e) Fees for nationally standardized, norm-referenced achievement tests, Advanced Placement Examinations, industry certification examinations, assessments related to postsecondary education, or other assessments.
(f) Contributions to the Stanley G. Tate Florida Prepaid College Program pursuant to s. 1009.98 or the Florida College Savings Program pursuant to s. 1009.981, for the benefit of the eligible student.
(g) Contracted services provided by a public school or school district, including classes. A student who receives services under a contract under this paragraph is not considered enrolled in a public school for eligibility purposes as specified in subsection (4).
(h) Tuition and fees for part-time tutoring services provided by a person who holds a valid Florida educator’s certificate pursuant to s. 1012.56; a person who holds an adjunct teaching certificate pursuant to s. 1012.57; or a person who has demonstrated a mastery of subject area knowledge pursuant to s. 1012.56(5). As used in this paragraph, the term “part-time tutoring services” does not qualify as regular school attendance as defined in s. 1003.01(13)(e).
(i) Fees for specialized summer education programs.
(j) Fees for specialized after-school education programs.
(k) Transition services provided by job coaches.
(l) Fees for an annual evaluation of educational progress by a state-certified teacher under s. 1002.41(1)(c), if this option is chosen for a home education student.
(m) Tuition and fees associated with programs offered by Voluntary Prekindergarten Education Program providers approved pursuant to s. 1002.55 and school readiness providers approved pursuant to s. 1002.88.
A provider of any services receiving payments pursuant to this subsection may not share, refund, or rebate any moneys from the Gardiner Scholarship with the parent or participating student in any manner.
(6) TERM OF THE PROGRAM.—For purposes of continuity of educational choice and program integrity:
(a)1. Program payments made by the state to an organization for a Gardiner Scholarship under this section shall continue until:
a. The parent does not renew program eligibility;
b. The organization determines that the student is not eligible for program renewal;
c. The Commissioner of Education suspends or revokes program participation or use of funds;
d. The student’s parent has forfeited participation in the program for failure to comply with subsection (11);
e. The student enrolls in a public school; or
f. The student graduates from high school or attains 22 years of age, whichever occurs first.
2. Reimbursements for program expenditures may continue until the account balance is expended or the account is closed pursuant to paragraph (b).
(b)1. A student’s scholarship account must be closed and any remaining funds, including, but not limited to, contributions made to the Stanley G. Tate Florida Prepaid College Program or earnings from or contributions made to the Florida College Savings Program using program funds pursuant to paragraph (5)(f), shall revert to the state upon:
a. Denial or revocation of program eligibility by the commissioner for fraud or abuse, including, but not limited to, the student or student’s parent accepting any payment, refund, or rebate, in any manner, from a provider of any services received pursuant to subsection (5); or
b. After any period of 3 consecutive years after high school completion or graduation during which the student has not been enrolled in an eligible postsecondary educational institution or a program offered by the institution.
2. The commissioner must notify the parent and the organization when a Gardiner Scholarship account is closed and program funds revert to the state.
(7) SCHOOL DISTRICT OBLIGATIONS; PARENTAL OPTIONS.—
(a)1. The parent of a student with a disability who does not have an IEP in accordance with subparagraph (3)(a)4. or who seeks a reevaluation of an existing IEP may request an IEP meeting and evaluation from the school district in order to obtain or revise a matrix of services. The school district shall notify a parent who has made a request for an IEP that the district is required to complete the IEP and matrix of services within 30 days after receiving notice of the parent’s request. The school district shall conduct a meeting and develop an IEP and a matrix of services within 30 days after receipt of the parent’s request in accordance with State Board of Education rules. The school district must complete a matrix that assigns the student to one of the levels of service as they existed before the 2000-2001 school year.
2.a. The school district must provide the student’s parent and the department with the student’s matrix level within 10 calendar days after its completion.
b. The department shall notify the parent and the organization of the amount of the funds awarded within 10 days after receiving the school district’s notification of the student’s matrix level.
c. A school district may change a matrix of services only if the change is a result of an IEP reevaluation or to correct a technical, typographical, or calculation error.
(b) For each student participating in the program who chooses to participate in statewide, standardized assessments under s. 1008.22 or the Florida Alternate Assessment, the school district in which the student resides must notify the student and his or her parent about the locations and times to take all statewide, standardized assessments.
(8) PRIVATE SCHOOL ELIGIBILITY AND OBLIGATIONS.—An eligible private school may be sectarian or nonsectarian and shall:
(a) Comply with all requirements for private schools participating in state school choice scholarship programs pursuant to s. 1002.421.
(b) Provide to the 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 program in grades 3 through 10 to take one of the nationally norm-referenced tests identified by the Department of Education or the statewide assessments pursuant to s. 1008.22. Students with disabilities for whom standardized testing is not appropriate are exempt from this requirement. A participating private school shall report a student’s scores to the parent.
3. Cooperating with the scholarship student whose parent chooses to have the student participate in the statewide assessments pursuant to s. 1008.22 or, if a private school chooses to offer the statewide assessments, administering the assessments at the school.
a. A participating private school may choose to offer and administer the statewide assessments to all students who attend the private school in grades 3 through 10.
b. A participating private school shall submit a request in writing to the Department of Education by March 1 of each year in order to administer the statewide assessments in the subsequent school year.
(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.
(e) Annually contract with an independent certified public accountant to perform the agreed-upon procedures developed under s. 1002.395(6)(o) and produce a report of the results if the private school receives more than $250,000 in funds from scholarships awarded under this section in the 2014-2015 state fiscal year or a state fiscal year thereafter. A private school subject to this paragraph must submit the report by September 15, 2015, and annually thereafter to the organization that awarded the majority of the school’s scholarship funds. The agreed-upon procedures must be conducted in accordance with attestation standards established by the American Institute of Certified Public Accountants.
The inability of a private school to meet the requirements of this subsection constitutes a basis for the ineligibility of the private school to participate in the program as determined by the commissioner.
(9) DEPARTMENT OF EDUCATION OBLIGATIONS.—The department shall:
(a) Maintain on its website a list of approved providers as required in s. 1002.66, eligible postsecondary educational institutions, eligible private schools, and organizations and may identify or provide links to lists of other approved providers.
(b) Require each organization to verify eligible expenditures before the distribution of funds for any expenditures made pursuant to paragraphs (5)(a) and (b). Review of expenditures made for services specified in paragraphs (5)(c)-(m) may be completed after the purchase is made.
(c) Investigate any written complaint of a violation of this section by a parent, a student, a private school, a public school or a school district, an organization, a provider, or another appropriate party in accordance with the process established by s. 1002.395(9)(f).
(d) Require quarterly reports by an organization, which must, at a minimum, include the number of students participating in the program; the demographics of program participants; the disability category of program participants; the matrix level of services, if known; the program award amount per student; the total expenditures for the purposes specified in subsection (5); the types of providers of services to students; and any other information deemed necessary by the department.
(e) Compare the list of students participating in the program with the public school student enrollment lists, Voluntary Prekindergarten Education Program enrollment lists, and the list of students participating in school choice scholarship programs established pursuant to this chapter before each scholarship award is provided to the organization, and subsequently throughout the school year, to avoid duplicate payments and confirm program eligibility. A parent who files a final verification pursuant to paragraph (3)(b) shall receive scholarship funds before the department confirms program eligibility.
(10) COMMISSIONER OF EDUCATION AUTHORITY AND OBLIGATIONS.—
(a) The Commissioner of Education:
1. May suspend or revoke program participation or use of program funds by the student or participation or eligibility of an organization, eligible private school, eligible postsecondary educational institution, approved provider, or other party for a violation of this section.
2. May determine the length of, and conditions for lifting, a suspension or revocation specified in this subsection.
3. May recover unexpended program funds or withhold payment of an equal amount of program funds to recover program funds that were not authorized for use.
4. Shall deny or terminate program participation upon a parent’s forfeiture of a Gardiner Scholarship pursuant to subsection (11).
(b) In determining whether to suspend or revoke participation or lift a suspension or revocation in accordance with this subsection, the commissioner may consider factors that include, but are not limited to, acts or omissions that led to a previous suspension or revocation of participation in a state or federal program or an education scholarship program; failure to reimburse the organization for funds improperly received or retained; failure to reimburse government funds improperly received or retained; imposition of a prior criminal sanction related to the person or entity or its officers or employees; imposition of a civil fine or administrative fine, license revocation or suspension, or program eligibility suspension, termination, or revocation related to a person’s or entity’s management or operation; or other types of criminal proceedings in which the person or entity or its officers or employees were found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense involving fraud, deceit, dishonesty, or moral turpitude.
(11) PARENT AND STUDENT RESPONSIBILITIES FOR PROGRAM PARTICIPATION.—A parent who applies for program participation under this section is exercising his or her parental option to determine the appropriate placement or the services that best meet the needs of his or her child. The scholarship award for a student is based on a matrix that assigns the student to support Level III services. If a parent receives an IEP and a matrix of services from the school district pursuant to subsection (7), the amount of the payment shall be adjusted as needed, when the school district completes the matrix.
(a) To satisfy or maintain program eligibility, including eligibility to receive and spend program payments, the parent must sign an agreement with the organization and annually submit a notarized, sworn compliance statement to the organization to:
1. Affirm that the student is enrolled in a program that meets regular school attendance requirements as provided in s. 1003.01(13)(b)-(d).
2. Affirm that the program funds are used only for authorized purposes serving the student’s educational needs, as described in subsection (5).
3. Affirm that the parent is responsible for the education of his or her student by, as applicable:
a. Requiring the student to take an assessment in accordance with paragraph (8)(c);
b. Providing an annual evaluation in accordance with s. 1002.41(1)(c); or
c. Requiring the child to take any preassessments and postassessments selected by the provider if the child is 4 years of age and is enrolled in a program provided by an eligible Voluntary Prekindergarten Education Program provider. A student with disabilities for whom a preassessment and postassessment is not appropriate is exempt from this requirement. A participating provider shall report a student’s scores to the parent.
4. Affirm that the student remains in good standing with the provider or school if those options are selected by the parent.
(b) The parent must file an application for initial program participation with an organization by the dates established pursuant to this section.
(c) The parent must notify the school district that the student is participating in the Gardiner Scholarship Program if the parent chooses to enroll the student in a home education program as provided in s. 1002.41. This notification is not in lieu of the required notification a parent must submit to the district when establishing a home education program pursuant to s. 1002.41(1)(a).
(d) The parent must enroll his or her child in a program from a Voluntary Prekindergarten Education Program provider authorized under s. 1002.55, a school readiness provider authorized under s. 1002.88, or an eligible private school if either option is selected by the parent.
(e) The parent must annually renew participation in the program. Notwithstanding any changes to the student’s IEP, a student who was previously eligible for participation in the program shall remain eligible to apply for renewal. However, for a high-risk child to continue to participate in the program in the school year after he or she reaches 6 years of age, the child’s application for renewal of program participation must contain documentation that the child has a disability defined in paragraph (2)(d) other than high-risk status.
(f) The parent is responsible for procuring the services necessary to educate the student. When the student receives a Gardiner Scholarship, the district school board is not obligated to provide the student with a free appropriate public education. For purposes of s. 1003.57 and the Individuals with Disabilities in Education Act, a participating student has only those rights that apply to all other unilaterally parentally placed students, except that, when requested by the parent, school district personnel must develop an individual education plan or matrix level of services.
(g) The parent is responsible for all eligible expenses in excess of the amount of the Gardiner Scholarship.
(h) The parent may not transfer any prepaid college plan or college savings plan funds contributed pursuant to paragraph (5)(f) to another beneficiary while the plan contains funds contributed pursuant to this section.
(i) The parent may not receive a payment, refund, or rebate from an approved provider of any services under this program.
A parent who fails to comply with this subsection forfeits the Gardiner Scholarship.
(12) OBLIGATIONS OF SCHOLARSHIP-FUNDING ORGANIZATIONS.—An organization may establish Gardiner Scholarships for eligible students by:
(a) Receiving applications and determining student eligibility in accordance with the requirements of this section. When an application is approved, the organization must provide the department with information on the student to enable the department to determine student funding in accordance with subsection (13).
(b) Notifying parents of their receipt of a scholarship on a first-come, first-served basis, based upon the funds provided.
(c) Establishing a date pursuant to paragraph (3)(b) by which a parent must confirm initial or continuing participation in the program.
(d) Reviewing applications and awarding scholarship funds to approved applicants using the following priorities:
1. Renewing students from the previous school year;
2. Students retained on the previous school year’s wait list;
3. Newly approved applicants; and
4. Late-filed applicants.
An approved student who does not receive a scholarship must be placed on the wait list in the order in which his or her application is approved. The students on the wait list or subsequent late-filing applicants may be allowed to participate in the program during the fiscal year, within the amount of funds provided. A student who does not receive a scholarship within the fiscal year shall be retained on the wait list for the subsequent year.
(e) Establishing and maintaining separate accounts for each eligible student. For each account, the organization must maintain a record of accrued interest that is retained in the student’s account and available only for authorized program expenditures.
(f) Verifying qualifying educational expenditures pursuant to the requirements of paragraph (9)(b).
(g) Returning any remaining program funds to the department pursuant to paragraph (6)(b).
(h) Notifying the parent about the availability of, and the requirements associated with requesting, an initial IEP or IEP reevaluation every 3 years for each student participating in the program.
(i) Notifying the department of any violation of this section.
(j) Documenting each scholarship student’s eligibility for a fiscal year before granting a scholarship for that fiscal year pursuant to paragraph (3)(b).
(13) FUNDING AND PAYMENT.—
(a)1. The maximum funding amount granted for an eligible student with a disability, pursuant to subsection (3), shall be equivalent to the base student allocation in the Florida Education Finance Program multiplied by the appropriate cost factor for the educational program which would have been provided for the student in the district school to which he or she would have been assigned, multiplied by the district cost differential.
2. In addition, an amount equivalent to a share of the guaranteed allocation for exceptional students in the Florida Education Finance Program shall be determined and added to the amount in subparagraph 1. The calculation shall be based on the methodology and the data used to calculate the guaranteed allocation for exceptional students for each district in chapter 2000-166, Laws of Florida. Except as provided in subparagraph 3., the calculation shall be based on the student’s grade, the matrix level of services, and the difference between the 2000-2001 basic program and the appropriate level of services cost factor, multiplied by the 2000-2001 base student allocation and the 2000-2001 district cost differential for the sending district. The calculated amount must also include an amount equivalent to the per-student share of supplemental academic instruction funds, instructional materials funds, technology funds, and other categorical funds as provided in the General Appropriations Act.
3. Except as otherwise provided in subsection (7), the calculation for all students participating in the program shall be based on the matrix that assigns the student to support Level III of services. If a parent chooses to request and receive a matrix of services from the school district, when the school district completes the matrix, the amount of the payment shall be adjusted as needed.
(b) The amount of the awarded funds shall be 90 percent of the calculated amount. One hundred percent of the funds appropriated for the program shall be released to the department at the beginning of the first quarter of each fiscal year.
(c) Upon notification from the organization that a parent has filed a final verification document pursuant to paragraph (3)(b) or upon notification from the organization that a 3- or 4-year-old child’s application has been approved for the program, the department shall release the student’s scholarship funds to the organization to be deposited into the student’s account.
(d) For initial eligibility for the program, students determined eligible by the organization for a Gardiner Scholarship by:
1. September 1 shall receive 100 percent of the total awarded funds.
2. November 1 shall receive 75 percent of the total awarded funds.
3. February 1 shall receive 50 percent of the total awarded funds.
4. April 1 shall receive 25 percent of the total awarded funds.
(e) Accrued interest in the student’s account is in addition to, and not part of, the awarded funds. Program funds include both the awarded funds and accrued interest.
(f) The organization may develop a system for payment of benefits by funds transfer, including, but not limited to, debit cards, electronic payment cards, or any other means of payment that the department deems to be commercially viable or cost-effective. A student’s scholarship award may not be reduced for debit card or electronic payment fees. Commodities or services related to the development of such a system shall be procured by competitive solicitation unless they are purchased from a state term contract pursuant to s. 287.056.
(g) In addition to funds appropriated for scholarship awards and subject to a separate, specific legislative appropriation, an organization may receive an amount equivalent to not more than 3 percent of the amount of each scholarship award from state funds for administrative expenses if the organization has operated as a nonprofit entity for at least the preceding 3 fiscal years and did not have any findings of material weakness or material noncompliance in its most recent audit under s. 1002.395(6)(m). Such administrative expenses must be reasonable and necessary for the organization’s management and distribution of scholarships under this section. Funds authorized under this paragraph may not be used for lobbying or political activity or expenses related to lobbying or political activity. An organization may not charge an application fee for a scholarship. Administrative expenses may not be deducted from funds appropriated for scholarship awards.
(h) Moneys received pursuant to this section do not constitute taxable income to the qualified student or parent of the qualified student.
(14) OBLIGATIONS OF THE AUDITOR GENERAL.—
(a) The Auditor General shall conduct an annual operational audit of accounts and records of each organization that participates in the program. As part of this audit, the Auditor General shall verify, at a minimum, the total amount of students served and the eligibility of reimbursements made by the organization and transmit that information to the department. The Auditor General shall provide the commissioner with a copy of each annual operational audit performed pursuant to this subsection within 10 days after the audit is finalized.
(b) The Auditor General shall notify the department of any organization that fails to comply with a request for information.
(15) OBLIGATIONS RELATED TO APPROVED PROVIDERS.—The Department of Health, the Agency for Persons with Disabilities, and the Department of Education shall work with an organization for easy or automated access to lists of licensed providers of services specified in paragraph (5)(c) to ensure efficient administration of the program.
(16) LIABILITY.—The state is not liable for the award or any use of awarded funds under this section.
(17) SCOPE OF AUTHORITY.—This section does not expand the regulatory authority of this state, its officers, or any school district to impose additional regulation on participating private schools, independent postsecondary educational institutions, and private providers beyond those reasonably necessary to enforce requirements expressly set forth in this section.
History.—s. 16, ch. 2014-184; ss. 5, 9, ch. 2015-222; s. 5, ch. 2016-2; s. 33, ch. 2016-65; s. 12, ch. 2016-140.