Bill would let Utah schools spend special education funds on students without special needs

Critics said SB175 dilutes the pool of money for kids who need support the most.

(Rick Egan | The Salt Lake Tribune) Sen. Jacob Anderegg, R-Lehi, is pictured in this 2019 photo.

A bill that would loosen the restrictions on how Utah schools spend special education funds was approved by lawmakers Wednesday, despite outcry from parents and advocates saying it would mean less support for the kids who have the most needs.

The proposal, SB175, would remove the current requirement that such funding from the state only be spent directly on students with disabilities or services to help them.

Instead, it would open up the money so it could be used for other needs and beyond just special education students. That could include expenses more loosely tied to disability programs, such as salaries for staff who work with groups that include students with and without special needs, and for services that benefit both.

“It simplifies the rules greatly,” said Sen. Jacob Anderegg, R-Lehi, the bill’s sponsor, during a committee hearing. “It’s a balancing act.”

He acknowledged that the legislation was spurred by an ongoing dispute between a popular charter school — American Preparatory Academy — and the state, though it wouldn’t be retroactive.

The academy was recently ordered to pay back nearly $3 million in special education funding that auditors from the Utah Board of Education say was not actually spent on services for students with disabilities.

The main concern was that the academy, which has six campuses and 5,000 students, did not keep clear books on how it spent special education dollars, so there was no way for the state to know what that money was spent on.

In other instances, though, when the state auditors could track funding, they concluded it was spent on “disallowed” expenditures. That included paying for paraeducators who worked with students with disabilities, as well as students without — breaking the same state law the bill is aiming to change.

Looser rules allow innovation, senator argues

Administrators with American Preparatory Academy have strongly disputed the state’s findings and plan to appeal having to repay the funds.

The charter has defended itself and the unique way it runs its special education program. APA keeps all students with disabilities in the same classrooms as their peers, instead of separating them out. Carolyn Sharette, the academy’s executive director, has said that strategy helps all students feel equal, and is why paraeducators work with both populations.

Anderegg, the bill’s sponsor, said Wednesday that he likes that model. He hopes to encourage other charters and districts to take a similar, inclusive approach to special education — rather than what he sees as the state punishing “that kind of innovation.”

In most schools, he said, student with disabilities, such as dyslexia or a speech disorder, are “singled out” and pulled from class for personalized instruction. Those kids have what’s called an individualized education plan, or IEP, that’s developed with the school and tailored to their needs. Staff are supposed to provide directed help for them to learn, based on that plan.

To cover the costs of that in public schools, the state allocates more money for students with an IEP. Instead of$4,000 per kid, each student with a disability is funded at roughly $8,000.

With Anderegg’s proposal, that funding could be spread out for staff or services for an entire classroom, as long as there are some kids with special needs included, and “even if doing so provides an incidental benefit to students without a disability.”

Anderegg described it as teaching students with special needs in “the least restrictive environment.” And he suggested, too, that will make it easier and less restrictive for schools and districts to use the money how they see fit.

Essentially, a room with 30 kids could have one student with special needs in it. The funding currently designated for that one student could be used to pay for a paraprofessional that assists the entire class.

“I think we can strike a better balance,” the senator said, noting he has two kids who have IEPs. “It isn’t going to diminish their experience in any way, shape or form.”

He had support Wednesday from several charter directors and Royce Van Tassell, executive director of the Utah Association of Public Charter Schools. Van Tassell has previously said he believes the state has been “a little too tight in the rules” with special education funds.

Critics say change would benefit charters, not kids

But the plan faced significant pushback during the public comment period of the committee meeting.

Leah Voorhies, the state director of special education for the Utah Board of Education, said several models have been tested over the years to figure out how to best teach students with special needs. Leaving them in the classroom full-time with peers that are at a different level for learning hasn’t worked.

“They did not achieve,” she said. “They need specific instruction for their needs.”

Bryce Day, the director of special education for Granite School District, said he worries, too, that the bill would mean less money going directly toward those who need extra help, funding staff that may have limited interactions with students with disabilities. And it would lessen accountability for how the funds are spent.

There’s also concern that the bill is set up to directly benefit charters. Traditional public K-12 schools in the state are capped at how many students with special needs they can receive funding for — about 12% of their population. Charters do not have a similar cap, and can collect unlimited funds from the state for special education.

If that can be spent on anything, Day said, that creates a serious advantage for charters. “Our students are already underserved,” he added.

Anderegg challenged that, suggesting charter schools may attract more students with special needs because they’re better equipped to help them. With that response, though, more people then lined up to speak in opposition.

Esperanza Reyes, who said she is the mother of a child with autism, said her son has been receiving special services in school for roughly eight years. Reyes also serves associate director of the Utah Parent Center, which helps kids with special needs.

Individualized support, she said, has helped her son achieve. But the funding is already “precious and limited,” and she doesn’t want to see it diluted and covering students who don’t need the same attention.

“Why is this even being considered?” Reyes asked during an emotional testimony.

Steven Phelps, another parent of kids with disabilities and a teacher, said he’s concerned that the bill will mean more educators who haven’t been trained to work with students with special needs will now be tasked with instructing them when they’re in the same classroom as their peers.

A member of the Utah School Boards Association and the director of Utah State University’s Center for Persons with Disabilities also spoke out against SB175, both suggesting it “waters down protections” for kids and creates loopholes for spending.

The Utah State Board of Education also formally voted to oppose the measure Thursday.

With a split vote, the proposal wins support

Sen. Kathleen Riebe, D-Cottonwood Heights, was the only senator to express concerns. She is an educator in Granite School District and works with students with IEPs.

“These dedicated funds were created for dedicated populations,” she said. “When we start talking about expanding these, our special ed kids get lost.”

State lawmakers, she added, have long supported giving more leeway to charters. But the expectation, she said, should be for schools to be more creative with their programs — not more creative with their funding.

Already last summer, the state approved legislation during a special session to create a scholarship program for students with special needs that would let them carry state funding with them to enroll in a private school.

Those efforts, Riebe said, aren’t helping improve special education programs. “Special ed money is finite,” she added, and public schools should be accountable for using it and showing students’ growth.

She doesn’t want to see an effort to direct it away from kids who need it, she said.

Still, the bill passed out of committee Wednesday on a 3-2 vote, with Sen. Derek Kitchen, D-Salt Lake City, joining Riebe. The three “yes” votes all came from Republicans.

SB175 moves next to the Senate floor for consideration. Anderegg said he intends to make a few changes before then to address lingering concerns.

The committee also passed a similar measure Wednesday, SB178, that would allow schools latitude with all restricted funds, including money for special education, this academic year, due to the pandemic.