Bulletin #20 Update of HoNDA legislation and other related bills   01/05/2004

 

Did you know: Congress is due back in session on January 20, 2004. There are bills pending which contain the pieces of HoNDA (H.R.2732 S.B. 1562).

 

NHELD is currently watching the status of several bills. We recommend that anyone interested will read the text of the bills in their entirety for a complete understanding. The bills are available at http://thomas.loc.gov/.

 

The last known action on the Home School Non Discrimination Act (HoNDA, or H.R.2732/S1562) occurred in the House in July when H.R.2732 was referred to the Subcommittee on Education Reform, and in August when S. 1562 was referred to the Committee on Finance.

 

Portions of the HoNDA bill, however, appear also as individual small bills currently before Congress.

 

HEA changes: H.R. 12 makes a number of technical changes to the Higher Education Act - Fed Up Higher Education Technical Amendments of 2003 - Amends the Higher Education Act of 1965 (HEA) to make various technical revisions regarding access to student aid programs. Revises the HEA general definition of institution of higher education (IHE) to include one that admits as regular students those who have been home-schooled (as well as high school graduates or those with equivalency certificates), thus conforming it with provisions that make such home-schooled students eligible for student aid under HEA title IV. Essentially this legislation does not contain the words "homeschool" but it refers to students who meet the requirements of section 484(d)(3) which is already in federal code...which includes homeschoolers.

Another bill (H.R. 2211, the Ready to Teach Act) mentioned below also impacts the HEA

 

FERPA: One section of HoNDA, designed to amend the Family Education Rights Privacy Act (FERPA) ostensibly to include under that act information submitted to public schools by homeschoolers, was introduced separately as H.R. 516. However, the last major action on H.R. 516 occurred in January of last year when it was referred to the House Committee on Education and the Workforce.

 

IDEA :One more section of HoNDA, designed to amend the Individuals with Disabilities Education Act (IDEA), ostensibly to allow parents of homeschoolers to refuse evaluations for their special needs children, appears to have been rendered unnecessary due to the language in the bill reauthorizing IDEA (H.R. 1350). That bill was received in the Senate in May of last year, and referred to the Committee on Health, Education, Labor and Pensions. Its Senate counterpart, S.1248, was prepared for action on the Senate floor in November of last year and was placed on the legislative calendar for action. The section of H.R. 1350 contains language specifically requiring parental consent for evaluation of special needs children, and does so in a way that makes it unnecessary to refer at all to "home school". That section reads:

"H.R. 1350, Sec. 614(a)(1)(D) PARENTAL CONSENT-

`(i) IN GENERAL-

`(I) CONSENT FOR INITIAL EVALUATION- The agency proposing to conduct an initial evaluation to determine if the child qualifies as a child with a disability as defined in section 602(3) shall obtain informed consent from the parent of such child before conducting the evaluation. Parental consent for evaluation shall not be construed as consent for placement for receipt of special education and related services.

`(II) CONSENT FOR SERVICES- An agency that is responsible for making a free appropriate public education available to a child with a disability under this part shall seek to obtain informed consent from the parent of such child before providing special education and related services to the child.

`(ii) ABSENCE OF CONSENT-

`(I) FOR INITIAL EVALUATION- If the parent of such child does not provide consent for an initial evaluation under clause (i)(I), or the parent fails to respond to a request to provide the consent, the local educational agency may pursue the initial evaluation of the child through the procedures described in section 615, except to the extent inconsistent with State law relating to such parental consent.

`(II) FOR SERVICES- If the parent of such child does not provide consent for services under clause (i)(II), or the parent fails to respond to a request to provide the consent, the local educational agency shall not provide special education and related services to the child through the procedures described in section 615.

`(III) EFFECT ON AGENCY OBLIGATIONS- In any case for which there is an absence of consent for an initial evaluation under subclause (I), or for which there is an absence of consent for services under subclause (II)--

`(aa) the local educational agency shall not be required to convene an IEP meeting or develop an IEP under this section for the child; and

`(bb) the local educational agency shall not be considered to be in violation of any requirement under this part (including the requirement to make available a free appropriate public education to the child) with respect to the lack of an initial evaluation of the child, an IEP meeting with respect to the child, or the development of an IEP under this section for the child."

 

Hope Scholarship Tax Credit and other tuition tax credits: Other sections of HoNDA, designed to amend portions of the Internal Revenue Service Code ostensibly to allow homeschoolers to partake of certain tax credits, also was introduced as separate bills, H.R. 612 and 615. However, the last major action on those bills occurred in February of last year when it was referred to the House Ways and Means Committee.

 

Education Savings Accounts: There are several bills that seek to amend the Internal Revenue Code. For purposes relating to HoNDA legislation we can look at H.R.1575 and H.R.282

H.R. 1575, the "Help and Opportunities for Parents of Exceptional Children Act of 2003" seeks to amend the IRS code to "provide assistance with elementary and secondary educational costs to parents of children with disabilities." Just as a provision in the HoNDA bill did, this bill ties tax breaks to the Coverdell Education Savings Account. Here, instead of exempting homeschools, the proponents define homeschools as educational institutions for purposes of this bill. The section of the bill reads:

"SEC. 25C. CREDIT FOR ELEMENTARY AND SECONDARY EDUCATIONAL EXPENSES OF CHILDREN WITH DISABILITIES.

`(a) IN GENERAL- In the case of an individual, there shall be allowed as a credit against the tax imposed by this chapter for the taxable year an amount equal to the qualified educational expenses paid during such taxable year for elementary or secondary education of each child with a disability who is a dependent of the taxpayer with respect to whom the taxpayer is allowed a deduction under section 151.

`(b) LIMITATION- The credit allowed by subsection (a) shall not exceed $3,000 per child with a disability for any taxable year.

`(c) DEFINITIONS- For purposes of this section--

`(1) QUALIFIED EDUCATIONAL EXPENSES-

`(A) IN GENERAL- The term `qualified educational expenses' means cost of attendance in connection with the elementary or secondary education of a student at a qualified educational institution. Under regulations prescribed by the Secretary, rules similar to the rules relating to cost of attendance (within the meaning of section 472 of the Higher Education Act of 1965 (20 U.S.C. 1087ll) (as in effect on the date of the enactment of this paragraph) shall apply for purposes of the preceding sentence.

`(B) COORDINATION WITH EDUCATION SAVINGS ACCOUNTS- The amount taken into account under subsection (a) with respect to a child shall be reduced by the amount of any distribution from any Coverdell education savings account of which such child is a beneficiary which is not includible in gross income for the taxable year by reason of section 530(d)(2)(A).

`(2) QUALIFIED EDUCATIONAL INSTITUTION- The term `qualified educational institution' means any educational institution (including any private, parochial, religious, or home school) organized for the purpose of providing elementary or secondary education."

 

All statutes are implemented by the adoption of regulations. This bill specifies that the regulations may specify a means of claiming the tax credit on the 1040EZ form. Regulations may contain provisions that may affect the rights of homeschoolers as well. It is sometimes even more difficult to have input on the implementation of those regulations than it is to have input on the implementation of statutes.

 

Another bill, H.R. 282, the Education Freedom Act, seeks to amend the IRS Code to allow a tax credit to those who contribute "for the benefit of elementary and secondary schools." Under a section of that bill, those who contribute for elementary and secondary expenses in a home school would get a tax break. However, in order to implement this law, the regulations would have to determine what qualifies as a "home school" in order to determine whether contributions were made for "home school expenses" that qualify for the tax break. The IRS, in this case, would be determining a federal definition of "home school." The applicable sections of H.R. 282 read:

"SEC. 30B. CREDIT FOR CONTRIBUTIONS FOR THE BENEFIT OF ELEMENTARY AND SECONDARY SCHOOLS.

`(a) ALLOWANCE OF CREDIT- There shall be allowed as a credit against the tax imposed by this chapter for the taxable year an amount equal to 50 percent of the qualified charitable contributions of the taxpayer for the taxable year.

`(b) LIMITATIONS-

`(1) INDIVIDUALS, ETC- In the case of a taxpayer other than a corporation, the credit allowed by subsection (a) for any taxable year shall not exceed $250 ($500 in the case of a joint return).

`(2) CORPORATIONS- In the case of a corporation, the credit allowed by subsection (a) shall not exceed $50,000.

`(3) LIMITATION IN CASE OF STATE CREDIT- Subject to subsection (d)(2), in the case of a taxpayer which claims a credit on a State income tax return for any qualified charitable contribution, the amount of credit under this section shall be the lesser of--

`(A) the amount which, when added to the amount of the State income tax credit, equals the total amount of the taxpayer's qualified charitable contributions, or

`(B) the limitation amount that applies under paragraph (1) or (2).

`(c) QUALIFIED CHARITABLE CONTRIBUTION- For purposes of this section--

`(1) IN GENERAL- The term `qualified charitable contribution' means, with respect to any taxable year, the aggregate amount allowable as a deduction under section 170 (determined without regard to subsection (d)(1)) for cash contributions--

`(A) to an education investment organization, or

`(B) to a public, private, or religious school providing education at the elementary or secondary level.

`(2) EDUCATION INVESTMENT ORGANIZATION- For purposes of this section--

`(A) IN GENERAL- The term `education investment organization' means any organization described in section 170(c)(2) if the annual disbursements of the organization in the form of grants for qualified elementary and secondary education expenses are normally not less than 90 percent of the sum of such organization's annual gross income and contributions and gifts.

`(B) QUALIFIED ELEMENTARY AND SECONDARY EDUCATION EXPENSES- The term `qualified elementary and secondary education expenses' has the meaning given such term by section 530(b)(4), except that `child' shall be substituted for `beneficiary' and `a child' shall be substituted for `the designated beneficiary of the trust' in clauses (i) and (iii) of subparagraph (A)….

SEC. 4. REVISION OF DEFINITION OF SCHOOL FOR PURPOSES OF QUALIFIED ELEMENTARY AND SECONDARY EDUCATION EXPENSES.

(a) IN GENERAL- Paragraph (4) of section 530(b) of the Internal Revenue Code of 1986 (defining qualified elementary and secondary education expenses) is amended--

(1) in clauses (i) and (ii) of subparagraph (A), by striking `public, private, or religious', and

(2) in subparagraph (B), by inserting after `any school’ the following: `, including a public, private, religious, or home school,’

(c) EFFECTIVE DATE- The amendments made by this section shall apply to taxable years beginning after December 31, 2003."

 

Teen work hours: This issue is addressed in H.R.3139 - TheYouth Worker Protection Act ("Working-Hour Restrictions for Minors"). It was introduced by Congressman Tom Lantos (CA) in Sept 2003. One of the goals of this bill is to seriously restrict the hours a teen may work. For example, 16 and 17 year olds will not be permitted to work more than 4 hours per day, or 20 hours per week. Teens 14-15 will be limited to 3 hours per day, or 15 per week. This actually will not help homeschoolers, but I am sure there will be amendments added to address this...

 

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There are certain other bills that merit attention.

 

Changes to the Higher Education Act :H.R. 2211, the Ready to Teach Act of 2003. Its purpose is to reauthorize Title II of the Higher Education Act of 1965 and to "improve student academic achievement" and the "quality of the current and future teaching force." Section 201 of that bill contains definitions that refer to the meanings as specified in the Higher Education Act of 1965. In other words, the act refers to public school teachers and public school agencies. It does not refer to parents as teachers in any way. Nonetheless, the bill contains a section that purports to "exempt" homeschoolers. It is important to note that an "exemption" contained in one law can be interpreted by the courts to mean that Congress did not mean to "exempt" homeschoolers from the applicability of other laws. The section of H.R. 2211 that contains the "exemption" reads:

"SEC. 209 (c) LIMITATIONS-

`(1) FEDERAL CONTROL PROHIBITED- Nothing in this part shall be construed to permit, allow, encourage, or authorize any Federal control over any aspect of any private, religious, or home school, whether or not a home school is treated as a private school or home school under State law. This section shall not be construed to prohibit private, religious, or home schools from participation in programs or services under this part.

`(2) NO CHANGE IN STATE CONTROL ENCOURAGED OR REQUIRED- Nothing in this part shall be construed to encourage or require any change in a State's treatment of any private, religious, or home school , whether or not a home school is treated as a private school or home school under State law."

 

The added reference to "state control" is particularly troublesome in that it also could be interpreted by the courts to mean that Congress did intend to encourage or require a change in state control in other similar laws.

There appears to be a Senate counterpart to this bill. It is S. 1793, the College Quality, Affordability, and Diversity Improvement Act of 2003. Title II of that bill specifies as its purpose "teacher quality enhancement" and also has a Section 209 that contains identical language to Sec. 209 of H.R. 2211.

Another bill H.R. 1261, the Workforce Reinvestment and Adult Education Act of 2003, has as its purpose to provide instructional opportunities for adults seeking to support states and local communities in assisting adults to improve their basic reading, writing, speaking, and math skills. This bill also contains a section specifically "exempting" homeschools unnecessarily. That section reads:

"SEC. 204. Home Schools.

`Nothing in this title shall be construed to affect home schools, whether or not a home school is treated as a home school or a private school under State law, or to compel a parent engaged in home schooling to participate in an English language acquisition program, a family literacy education program, or an adult basic skills and family literacy education program."

 

Under Senate Bill 4 (S.4), the Opportunity for Every Child Act of 2003, taxpayers whose child normally would attend a public school that has been identified as a school for improvement but who, instead, received education in a different public school, nonpublic school, or homeschool, and who incurred expenses for doing so, would receive a tax break. In addition to the potential that this bill has for increased regulation due to the receipt of federal benefits, the language in this bill is troublesome because it ties homeschooling to the compulsory attendance laws in the states. There are states in which the parental authority to educate at home is not derived from compulsory attendance laws. Also, once again, homeschools are defined in this bill as "educational institutions". The applicable section of this bill reads:

"SEC. 36. EDUCATION EXPENSES OF STUDENTS ASSIGNED TO SCHOOLS IDENTIFIED FOR SCHOOL IMPROVEMENT.

`(a) GENERAL RULE- In the case of an individual, there shall be allowed as a credit against the tax imposed by this subtitle for the taxable year 50 percent of the amount of the qualified education expenses paid by the taxpayer during the taxable year for the education of any individual--

`(1) with respect to whom the taxpayer is allowed a deduction under section 151(c), and

`(2) who would have otherwise been assigned to a public school identified for school improvement under section 1116 of the Elementary and Secondary Education Act of 1965 but who incurred qualified education expenses to enroll in a public or nonpublic school not identified for school improvement under such section for the period to which such expenses relate.

`(b) LIMITATION- The amount of qualified education expenses which may be taken into account under subsection (a) for any taxable year with respect to any 1 individual shall not exceed $5,000.

`(c) DEFINITIONS- For purposes of this section--

`(1) QUALIFIED EDUCATION EXPENSES-

`(A) IN GENERAL- The term `qualified education expenses' means amounts paid for--

`(i) tuition and fees required for the enrollment or attendance of a student at an eligible educational institution,

`(ii) transportation to and from an individual's home and an eligible educational institution, and

`(iii) books, supplies, computer equipment (including related software and services) and other equipment required for courses of instruction at an eligible educational institution.

`(B) MEALS AND LODGING EXPENSES NOT INCLUDED- Such term does not include any amount paid, directly or indirectly, for meals, lodging, or similar personal, living, or family expenses. In the event an amount paid for tuition or fees includes an amount for meals, lodging, or similar expenses which is not separately stated, the portion of such amount which is attributable to meals, lodging, or similar expenses shall be determined under regulations prescribed by the Secretary.

`(C) SPECIAL RULE FOR HOME SCHOOLING- In the case of education furnished in the home (as a substitute for public education) which meets the requirements of State law relating to compulsory school attendance, the term `qualified education expenses' means amounts paid for tutoring, books, supplies, computer equipment (including related software and services), and other equipment directly used in furnishing such education.

`(2) ELIGIBLE EDUCATIONAL INSTITUTION- The term `eligible educational institution' means--

`(A) a secondary school ,

`(B) an elementary school, or

`(C) any private, parochial, religious, or home school organized for the purpose of providing elementary or secondary education, or both.

`(3) ELEMENTARY AND SECONDARY SCHOOLS- The terms `elementary school’ and `secondary school’ have the respective meanings given such terms by section 9101 of the Elementary and Secondary Education Act of 1965."

 

We will be watching these bills and sending out more informational bulletins regarding this pending legislation. We continue to recommend that you look up these bills and read them and track them too. Contact you congressional representatives when they return to Washington and let them know how you feel about this legislation.

 

Attorney Deborah Stevenson - Executive Director of National Home Education Legal Defense. – www.nheld.com or email : info@nheld.com

Judy Aron - Director of Research, NHELD – imjfaron@sbcglobal.net