Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 62 Fourth Substitute (2022GS)

Sponsor

Sen. Fillmore, L.

Final action

Governor Signed 3/23/2022

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• expands eligibility for the program to include siblings of scholarship students under certain circumstances;
• modifies the duties and rulemaking authority of the State Board of Education in relation to the program;
• provides that eligibility for a scholarship does not affect eligibility for an individualized education program;
• authorizes the scholarship granting organizations to prepare and distribute information about the program to parents who apply for a scholarship under the program;
• clarifies what constitutes a fiscal year for purposes of reporting and administering the program;
• modifies a scholarship granting organization's reporting deadline;
• allows a person that makes a donation to direct a donation to a particular school to which a scholarship will be offered;
• provides for a one-year carry back of the income tax credit for making a donation to the program; and
• makes technical changes.

Every vote on this bill

Bill text

SPECIAL NEEDS OPPORTUNITY SCHOLARSHIP PROGRAM
AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Lincoln Fillmore
House Sponsor: 
Mike Schultz
LONG TITLE
General Description:
This bill modifies the Special Needs Opportunity Scholarship Program (the program).
Highlighted Provisions:
This bill:
▸ expands eligibility for the program to include siblings of scholarship students under
certain circumstances;
▸ modifies the duties and rulemaking authority of the State Board of Education in
relation to the program;
▸ provides that eligibility for a scholarship does not affect eligibility for an
individualized education program;
▸ authorizes the scholarship granting organizations to prepare and distribute
information about the program to parents who apply for a scholarship under the
program;
▸ clarifies what constitutes a fiscal year for purposes of reporting and administering
the program;
▸ modifies a scholarship granting organization's reporting deadline;
▸ allows a person that makes a donation to direct a donation to a particular school to
which a scholarship will be offered;
▸ provides for a one-year carry back of the income tax credit for making a donation to
the program; and
▸ makes technical changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
This bill provides retrospective operation.
Utah Code Sections Affected:
AMENDS:
53E-7-401
, as enacted by Laws of Utah 2020, Fourth Special Session, Chapter 3
53E-7-402
, as enacted by Laws of Utah 2020, Fourth Special Session, Chapter 3
53E-7-404
, as last amended by Laws of Utah 2021, Chapter 341
53E-7-405
, as enacted by Laws of Utah 2020, Fourth Special Session, Chapter 3
53E-7-407
, as enacted by Laws of Utah 2020, Fourth Special Session, Chapter 3
53E-7-408
, as enacted by Laws of Utah 2020, Fourth Special Session, Chapter 3
59-7-625
, as enacted by Laws of Utah 2020, Fourth Special Session, Chapter 3
59-10-1041
, as enacted by Laws of Utah 2020, Fourth Special Session, Chapter 3
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
53E-7-401
 is amended to read:
53E-7-401.
Definitions.
As used in this part:
(1) "Eligible student" means
:
(a)
 a student who:
[
(a)
] 
(i)
 is eligible to participate in public school, in kindergarten or grades 1 through
12;
[
(b)
] 
(ii)
 is a resident of the state;
[
(c) (i)
] 
(iii) (A)
 has an IEP; or
[
(ii)
] 
(B)
 is determined by a multidisciplinary evaluation team to be eligible for
services under [
the Individuals with Disabilities Education Act, Subchapter II, 20 U.S.C. Secs.
to 1419
] 
U.S.C. Sec. 1401(3)
; and
[
(d)
] 
(iv)
 during the school year for which the student is applying for the scholarship, is
not:
[
(i)
] 
(A)
 a student who receives a scholarship under the Carson Smith Scholarship
Program created in Section 
53F-4-302
; or
[
(ii)
] 
(B)
 a public school student[
.
]
; or
(b) a student who:
(i) meets the requirement of Subsections (1)(a)(i) and (ii); and
(ii) is a sibling of and resides in the same household as a student described in
Subsection (1)(a) if:
(A) the student described in Subsection (1)(a) is a scholarship student and has verified
enrollment or intent to enroll at a qualifying school; and
(B) the sibling is applying for a scholarship to attend the same qualifying school.
(2) (a) "Employee" means an individual working in a position in which the individual's
salary, wages, pay, or compensation, including as a contractor, is paid from:
(i) program donations to a scholarship granting organization; or
(ii) scholarship money allocated to a qualifying school by a scholarship granting
organization under Section 
53E-7-405
.
(b) "Employee" does not include an individual who volunteers at the scholarship
granting organization or qualifying school.
(3) "Family income" means the annual income of the parent, parents, legal guardian, or
legal guardians with whom a scholarship student lives.
(4) "Federal poverty level" means the poverty level as defined by the most recently
revised poverty income guidelines published by the United States Department of Health and
Human Services in the Federal Register.
(5) "Multidisciplinary evaluation team" means two or more individuals:
(a) who are qualified in two or more separate disciplines or professions; and
(b) who evaluate a child.
[
(5)
] 
(6)
 "Officer" means:
(a) a member of the board of a scholarship granting organization or qualifying school;
or
(b) the chief administrative officer of a scholarship granting organization or qualifying
school.
[
(6)
] 
(7)
 "Program [
donations
] 
donation
" means [
donations
] 
a donation
 to the program
under Section 
53E-7-405
.
[
(7)
] 
(8)
 "Qualifying school" means a private school that:
(a) provides kindergarten, elementary, or secondary education;
(b) is approved by the state board under Section 
53E-7-408
; and
(c) meets the requirements described in Section 
53E-7-403
.
[
(8)
] 
(9)
 "Relative" means a father, mother, husband, wife, son, daughter, sister,
brother, uncle, aunt, nephew, niece, first cousin, mother-in-law, father-in-law, brother-in-law,
sister-in-law, son-in-law, or daughter-in-law.
[
(9)
] 
(10)
 "Scholarship" means a grant awarded to an eligible student:
(a) by a scholarship granting organization out of program donations; and
(b) for the purpose of paying for a scholarship expense.
[
(10)
] 
(11)
 "Scholarship expense" means:
(a) tuition, fees, or textbooks for a qualifying school;
(b) educational therapy, if the educational therapy is provided by a licensed physician
or licensed practitioner, including occupational, behavioral, physical, or speech-language
therapies;
(c) textbooks, curriculum, or other instructional materials, including supplemental
materials or associated online instruction required by a curriculum;
(d) tuition and fees for an online learning course or program; or
(e) fees associated with a state-recognized industry certification examination or any
examination related to college or university admission.
[
(11)
] 
(12)
 "Scholarship granting organization" means an organization that is:
(a) qualified as tax exempt under Section 501(c)(3), Internal Revenue Code; and
(b) recognized through an agreement with the state board as a scholarship granting
organization, as described in Section 
53E-7-404
.
[
(12)
] 
(13)
 "Scholarship student" means an eligible student who receives a scholarship
under this part.
[
(13)
] 
(14)
 "Special Needs Opportunity Scholarship Program" or "program" means the
program established in Section 
53E-7-402
.
[
(14)
] 
(15)
 "Value of the weighted pupil unit" means the amount established each year
in the enacted public education budget that is multiplied by the number of weighted pupil units
to yield the funding level for the basic state-supported school program.
Section 2. Section 
53E-7-402
 is amended to read:
53E-7-402.
Special Needs Opportunity Scholarship Program.
(1) There is established the Special Needs Opportunity Scholarship Program under
which a parent may apply to a scholarship granting organization on behalf of the parent's
student for a scholarship to help cover the cost of a scholarship expense.
(2) 
(a)
 A scholarship granting organization shall:
[
(a)
] 
(i)
 award, in accordance with this part, scholarships to eligible students; and
[
(b)
] 
(ii)
 determine the amount of a scholarship in accordance with Subsection (3).
(b) In awarding scholarships, a scholarship granting organization shall give priority to
an eligible student described in Subsection 
53E-7-401
(1)(a) by:
(i) establishing an August 10 deadline for an eligible student described in Subsection
53E-7-401
(1)(b) to apply for a scholarship; and
(ii) awarding a scholarship to an eligible student described in Subsection
53E-7-401
(1)(b) only if funds exist after awarding scholarships to all eligible students
described in Subsection 
53E-7-401
(1)(a) who have applied and qualify.
(c) Subject to available funds, a scholarship awarded to an eligible student described in
Subsection 
53E-7-401
(1)(b) shall be for a similar term as a scholarship awarded to the eligible
student's sibling.
(3) A scholarship granting organization shall determine a full-year scholarship award to
pay for the cost of one or more scholarship expenses in an amount not more than:
(a) for an eligible student 
described in Subsection 
53E-7-401
(1)(a) who is:
(i)
 in grades 1 through 12 with an IEP[
,
] 
and
 whose family income is:
[
(i)
] 
(A)
 at or below 185% of the federal poverty level, the value of the weighted pupil
unit multiplied by 2.5;
[
(ii)
] 
(B)
 between 185% and 555% of the federal poverty level, the value of the
weighted pupil unit multiplied by two; 
or
[
(iii)
] 
(C)
 above 555% of the federal poverty level, the value of the weighted pupil unit
multiplied by 1.5;
[
(b) for an eligible student
] 
(ii)
 in grades 1 through 12 
and
 who does not have an IEP,
the value of the weighted pupil unit;
[
(c) for an eligible student
] 
(iii)
 in kindergarten with an IEP, the value of the weighted
pupil unit; or
[
(d) for an eligible student
] 
(iv)
 in kindergarten 
and
 who does not have an IEP, half the
value of the weighted pupil unit[
.
]
; or
(b) for an eligible student described in Subsection 
53E-7-401
(1)(b), half the value of
the weighted pupil unit.
(4) Eligibility for a scholarship as determined by a multidisciplinary evaluation team
under this program does not establish eligibility for an IEP under the Individuals with
Disabilities Education Act, Subchapter II, 20 U.S.C. Secs. 1400 to 1419, and is not binding on
any LEA that is required to provide an IEP under the Individuals with Disabilities Education
Act.
[
(4)
] 
(5)
 The [
state board shall prepare and disseminate to a scholarship granting
organization for distribution
] 
scholarship granting organizations shall prepare and disseminate
information on the program
 to a parent applying for a scholarship on behalf of a student[
:
]
.
[
(a) information on the program; and
]
[
(b) information on how a parent may enroll the parent's child in a public school.
]
[
(5) A scholarship granting organization shall distribute the information described in
Subsection (4) to a parent who applies to the scholarship granting organization for a
scholarship on behalf of the parent's student.
]
Section 3. Section 
53E-7-404
 is amended to read:
53E-7-404.
State board duties.
[
(1) The state board shall administer the program.
]
[
(2)
] 
(1)
 The state board shall:
[
(a) provide a tax credit certificate form, for use by a scholarship granting organization
as described in Section 
53E-7-407
, that includes:
]
[
(i) the name, address, and social security number or federal employer identification
number of the person that makes a donation under Section 
53E-7-405
;
]
[
(ii) the date of the donation;
]
[
(iii) the amount of the donation;
]
[
(iv) the amount of the tax credit; and
]
[
(v) any other relevant information;
]
(a) publish on the state board's website:
(i) information about the program; and
(ii) information about each scholarship granting organization;
(b) conduct a financial review or audit of a scholarship granting organization, if the
state board receives evidence of fraudulent practice by the scholarship granting organization;
(c) conduct a criminal background check on each scholarship granting organization
employee and scholarship granting organization officer;
(d) establish uniform financial accounting standards for scholarship granting
organizations;
(e) annually calculate the amount of the program donations cap described in Section
53E-7-407
; and
(f) [
beginning in 2021,
] in accordance with Section 
53E-1-202.1
, annually submit a
report on the program to the Public Education Appropriations Subcommittee that includes:
(i) for the 2020-21, 2021-22, 2022-23, and 2023-24 school years, the amount of tuition
and fees a qualifying school charges;
(ii) administrative costs of the program;
(iii) the number of scholarship students 
that are eligible students described in
Subsection 
53E-7-401
(1)(a) and the number of scholarship students that are eligible students
described in Subsection 
53E-7-401
(1)(b)
 from each school district;
(iv) standards used by the scholarship granting organization to determine whether a
student is an eligible student; and
(v) savings to the state and LEAs as a result of scholarship students exiting the public
school system.
[
(3)
] 
(2)
 (a) In accordance with Subsection [
(4)
] 
(3)
 and Title 63G, Chapter 6a, Utah
Procurement Code, the state board shall issue a request for proposals and enter into at least one
agreement with an organization that is qualified as tax exempt under Section 501(c)(3), Internal
Revenue Code, to be recognized by the state board as a scholarship granting organization.
(b) An organization that responds to a request for proposals described in Subsection
[
(3)
] 
(2)
(a) shall submit the following information in the organization's response:
(i) a copy of the organization's incorporation documents;
(ii) a copy of the organization's Internal Revenue Service determination letter
qualifying the organization as being tax exempt under Section 501(c)(3), Internal Revenue
Code;
(iii) a description of the methodology the organization will use to verify that a student
is an eligible student under this part; and
(iv) a description of the organization's proposed scholarship application process.
[
(4)
] 
(3)
 (a) The state board shall enter into an agreement described in Subsection [
(3)
]
(2)
(a) with one scholarship granting organization on or before January 1, 2021.
(b) The state board may enter into an agreement described in Subsection [
(3)
] 
(2)
(a)
with additional scholarship granting organizations after January 1, 2023, if the state board
makes rules regarding how multiple scholarship granting organizations may issue tax credit
certificates in accordance with Section 
53E-7-407
.
(c) (i) No later than 10 days after the day on which the state board enters into an
agreement with a scholarship granting organization, the state board shall forward the name and
contact information of the scholarship granting organization to the State Tax Commission.
(ii) If, under Subsection [
(5)
] 
(4)
(c)(i), the state board bars a scholarship granting
organization from further participation in the program, the state board shall, no later than 10
days after the day on which the state board bars the scholarship granting organization, forward
the name and contact information of the barred scholarship granting organization to the State
Tax Commission.
[
(5)
] 
(4)
 (a) If the state board determines that a scholarship granting organization has
violated a provision of this part or state board rule, the state board shall send written notice to
the scholarship granting organization explaining the violation and the remedial action required
to correct the violation.
(b) A scholarship granting organization that receives a notice described in Subsection
[
(5)
] 
(4)
(a) shall, no later than 60 days after the day on which the scholarship granting
organization receives the notice, correct the violation and report the correction to the state
board.
(c) (i) If a scholarship granting organization that receives a notice described in
Subsection [
(5)
] 
(4)
(a) fails to correct a violation in the time period described in Subsection
[
(5)
] 
(4)
(b), the state board may bar the scholarship granting organization from further
participation in the program.
(ii) A scholarship granting organization may appeal a decision made by the state board
under Subsection [
(5)
] 
(4)
(c)(i) in accordance with Title 63G, Chapter 4, Administrative
Procedures Act.
(d) A scholarship granting organization may not accept program donations while the
scholarship granting organization:
(i) is barred from participating in the program under Subsection [
(5)
] 
(4)
(c)(i); or
(ii) has an appeal pending under Subsection [
(5)
] 
(4)
(c)(ii).
(e) A scholarship granting organization that has an appeal pending under Subsection
[
(5)
] 
(4)
(c)(ii) may continue to administer scholarships from previously donated program
donations during the pending appeal.
[
(6)
] 
(5)
 The state board shall provide for a process for a scholarship granting
organization to report information as required under Section 
53E-7-405
.
[
(7)
] 
(6)
 The state board shall make rules in accordance with Title 63G, Chapter 3,
Utah Administrative Rulemaking Act, to administer the program, including rules for:
[
(a) a scholarship granting organization's acceptance of program donations;
]
[
(b)
] 
(a)
 the administration of scholarships to a qualifying school receiving scholarship
money from a scholarship granting organization that is barred from participating in the
program under Subsection [
(5)
] 
(4)
(c)(i);
[
(c) payment of scholarship money to qualifying schools by a scholarship granting
organization;
]
[
(d) granting scholarship awards and disbursing scholarship money for nontuition
scholarship expenses by a scholarship granting organization;
]
[
(e)
] 
(b)
 when an eligible student does not continue in enrollment at a qualifying
school:
(i) requiring the scholarship granting organization to:
(A) notify the state board; and
(B) obtain reimbursement of scholarship money from the qualifying school in which
the eligible student is no longer enrolled; and
(ii) requiring the qualifying school in which the eligible student is no longer enrolled to
reimburse scholarship money to the scholarship granting organization;
[
(f)
] 
(c)
 audit and report requirements as described in Section 
53E-7-405
; and
[
(g)
] 
(d)
 requiring the scholarship granting organization, in accordance with the Family
Educational Rights and Privacy Act, 20 U.S.C. Sec. 1232g, to submit to the state board:
(i) for the 2020-21, 2021-22, 2022-23, and 2023-24 school years, the amount of tuition
and fees a qualifying school charges;
(ii) the number of scholarship students 
that are eligible students described in
Subsection 
53E-7-401
(1)(a) and the number of scholarship students that are eligible students
described in Subsection 
53E-7-401
(1)(b)
 from each school district;
(iii) standards used to determine whether a student is an eligible student; and
(iv) any other information requested by the [
state board for the purpose of completing
]
Public Education Appropriations Subcommittee for the state board to include in
 the annual
report described in Section 
53E-1-202.1
.
Section 4. Section 
53E-7-405
 is amended to read:
53E-7-405.
Program donations -- Scholarship granting organization
requirements.
(1) A person that makes a donation to a scholarship granting organization to help fund
scholarships through the program may be eligible to receive a nonrefundable tax credit as
described in Sections 
59-7-625
 and 
59-10-1041
.
(2) In accordance with Section 
53E-7-404
, an organization may enter into an
agreement with the state board to be a scholarship granting organization.
(3) A scholarship granting organization shall:
(a) accept program donations 
and allow a person that makes a program donation to
designate a qualifying school to which the donation shall be directed for scholarships
;
(b) adopt an application process in accordance with Subsection (5);
(c) review scholarship applications and determine scholarship awards;
(d) allocate scholarship money to a scholarship student's parent or, on the parent's
behalf, to a qualifying school in which the scholarship student is enrolled;
(e) adopt a process, with state board approval, that allows a parent to use a scholarship
to pay for a nontuition scholarship expense for the scholarship student;
(f) ensure that 
during the state fiscal year
:
(i) at least 92% of the scholarship granting organization's revenue from program
donations is spent on scholarships;
(ii) up to 5% of the scholarship granting organization's revenue from program
donations is spent on administration of the program;
(iii) up to 3% of the scholarship granting organization's revenue from program
donations is spent on marketing and fundraising costs; and
(iv) all revenue from program donations' interest or investments is spent on
scholarships;
(g) carry forward no more than 40% of the scholarship granting organization's program
donations from the state fiscal year in which the scholarship granting organization received the
program donations to the following state fiscal year;
(h) at the end of a 
state
 fiscal year, remit to the state treasurer donation amounts greater
than the amount described in Subsection (3)(g);
(i) prohibit a scholarship granting organization employee or officer from handling,
managing, or processing program donations, if, based on a criminal background check
conducted by the state board in accordance with Section 
53E-7-404
, the state board identifies
the employee or officer as posing a risk to the appropriate use of program donations;
(j) ensure that a scholarship can be transferred during the school year to a different
qualifying school that accepts the scholarship student;
(k) report to the state board on or before [
June
] 
October
of each year the following
information, prepared by a certified public accountant:
(i) the name and address of the scholarship granting organization;
(ii) the total number and total dollar amount of program donations that the scholarship
granting organization received during the previous calendar year;
(iii) 
(A)
 the total number and total dollar amount of scholarships the scholarship
granting organization awarded during the previous [
calendar year; and
] 
state fiscal year to
eligible students described in Subsection 
53E-7-401
(1)(a); and
(B) the total number and total dollar amount of scholarships the scholarship granting
organization awarded during the previous state fiscal year to eligible students described in
Subsection 
53E-7-401
(1)(b); and
(iv) the percentage of first-time scholarship recipients who were enrolled in a public
school during the previous school year or who entered kindergarten or a higher grade for the
first time in Utah;
(l) issue tax credit certificates as described in Section 
53E-7-407
; and
(m) require a parent to notify a scholarship granting organization if the parent's
scholarship recipient:
(i) receives scholarship money for tuition expenses; and
(ii) does not have continuing enrollment and attendance at a qualifying school.
(4) The state treasurer shall deposit the money described in Subsection (3)(h) into the
Education Fund.
(5) (a) An application for a scholarship shall contain an acknowledgment by the
applicant's parent that the qualifying school selected by the parent for the applicant to attend
using a scholarship is capable of providing the level of disability services required for the
student.
(b) A scholarship application form shall contain the following statement:
"I acknowledge that:
(1) A private school may not provide the same level of disability services that are
provided in a public school;
(2) I will assume full financial responsibility for the education of my scholarship
recipient if I accept this scholarship;
(3) Acceptance of this scholarship has the same effect as a parental refusal to consent
to services as described in 24 C.F.R. Sec. 300.300, issued under the Individuals with
Disabilities Education Act, 20 U.S.C. Sec. 1400 et seq.; and
(4) My child may return to a public school at any time."
(c) Upon acceptance of a scholarship, the parent assumes full financial responsibility
for the education of the scholarship recipient.
(d) Acceptance of a scholarship has the same effect as a parental refusal to consent to
services as described in 24 C.F.R. Sec. 300.300, issued under the Individuals with Disabilities
Education Act, 20 U.S.C. Sec. 1400 et seq.
(e) The creation of the program or granting of a scholarship does not:
(i) imply that a public school did not provide a free and appropriate public education
for a student; or
(ii) constitute a waiver or admission by the state.
(6) A scholarship granting organization shall demonstrate the scholarship granting
organization's financial accountability by annually submitting to the state board a financial
information report that:
(a) complies with the uniform financial accounting standards described in Section
53E-7-404
; and
(b) is prepared by a certified public accountant.
(7) (a) If a scholarship granting organization allocates $500,000 or more in
scholarships annually through the program, the scholarship granting organization shall:
(i) contract for an annual audit, conducted by a certified public accountant who is
independent from:
(A) the scholarship granting organization; and
(B) the scholarship granting organization's accounts and records pertaining to program
donations; and
(ii) in accordance with Subsection (7)(b), report the results of the audit to the state
board for review.
(b) For the report described in Subsection (7)(a)(ii), the scholarship granting
organization shall:
(i) include the scholarship granting organization's financial statements in a format that
meets generally accepted accounting standards; and
(ii) submit the report to the state board no later than 180 days after the last day of a
scholarship granting organization's fiscal year.
(c) The certified public accountant shall conduct an audit described in Subsection
(7)(a)(i) in accordance with generally accepted auditing standards and rules made by the state
board.
(d) (i) The state board shall review a report submitted under this section and may
request that the scholarship granting organization revise or supplement the report if the report
is not in compliance with the provisions of this Subsection (7) or rules adopted by the state
board.
(ii) A scholarship granting organization shall provide a revised report or supplement to
the report no later than 45 days after the day on which the state board makes a request
described in Subsection (7)(d)(i).
(8) (a) A scholarship granting organization may not allocate scholarship money to a
qualifying school if:
(i) the scholarship granting organization determines that the qualifying school
intentionally or substantially misrepresented information on overpayment;
(ii) the qualifying school fails to refund an overpayment in a timely manner; or
(iii) the qualifying school routinely fails to provide scholarship recipients with
promised educational goods or services.
(b) A scholarship granting organization shall notify a scholarship recipient if the
scholarship granting organization stops allocation of the recipient's scholarship money to a
qualifying school under Subsection (8)(a).
(9) If a scholarship recipient transfers to another qualifying school during the school
year, the scholarship granting organization may prorate scholarship money between the
qualifying schools according to the time the scholarship recipient spends at each school.
(10) A scholarship granting organization may not:
(a) award a scholarship to a relative of the scholarship granting organization's officer or
employee; or
(b) allocate scholarship money to a qualifying school at which the scholarship recipient
has a relative who is an officer or an employee of the qualifying school.
Section 5. Section 
53E-7-407
 is amended to read:
53E-7-407.
Tax credit certificates issued by a scholarship granting organization.
(1) In accordance with this section and subject to Subsection (3), a scholarship granting
organization shall provide a tax credit certificate
, on a form provided by the State Tax
Commission,
 to a person that makes a donation as described in Section 
53E-7-405
.
[
(2) (a) The scholarship granting organization shall issue a tax credit certificate
described in Subsection (1) on the tax credit certificate form described in Section 
53E-7-404
.
]
[
(b)
] 
(2) (a)
 The scholarship granting organization shall provide the information from a
completed tax credit certificate to the State Tax Commission electronically and in a manner
prescribed by the State Tax Commission.
[
(c)
] 
(b)
 A scholarship granting organization shall issue a tax credit certificate within
30 days after the day on which a person makes a donation to the program.
(3) (a) A scholarship granting organization may not issue a tax credit certificate for a
calendar year if issuing the tax credit certificate will cause the total amount of the tax credit
certificates issued for the calendar year to exceed the program donations cap amount described
in Subsection (4).
(b) Before accepting a donation to the program from a person, the scholarship granting
organization shall provide the person with notice:
(i) that the donation may not be eligible for a tax credit;
(ii) of the process described in Subsection (3)(c); and
(iii) of the total amount of tax credit certificates that the scholarship granting
organization has issued for the calendar year.
(c) During a calendar year, a scholarship granting organization shall:
(i) issue tax credit certificates in the order that the scholarship granting organization
received a corresponding donation; and
(ii) track the total amount of program donations received during the year as
corresponding tax credit certificates are issued.
(d) If a scholarship granting organization accepts a donation that, when added to the
current total amount of program donations received that year, will exceed the program
donations cap described in Subsection (4), the scholarship granting organization shall issue a
tax credit certificate in the amount that is the difference between the program donations cap
and the total amount of program donations received before the donation was received.
(4) (a) The program donations cap for the 2021 calendar year is $5,940,000.
(b) For a calendar year after 2021, the state board shall calculate the program donations
cap as follows:
(i) if the total program donations for the previous calendar year exceed 90% of the cap
amount for that calendar year, the cap for the current calendar year is the cap amount for the
previous calendar year increased by 10%; or
(ii) if the total program donations for the previous calendar year did not exceed 90% of
the cap amount for that calendar year, the cap for the current calendar year is the same as the
cap amount for the previous calendar year.
(5) A person that receives a tax credit certificate in accordance with this section shall
retain the certificate for the same time period a person is required to keep books and records
under Section 
59-1-1406
.
Section 6. Section 
53E-7-408
 is amended to read:
53E-7-408.
Eligible private schools.
(1) To be eligible to enroll a scholarship student, a private school shall:
(a) have a physical location in Utah where the scholarship students attend classes and
have direct contact with the school's teachers;
(b) (i) contract with an independent licensed certified public accountant to conduct an
Agreed Upon Procedures engagement as adopted by the state board, or obtain an audit and
report from a licensed independent certified public accountant that conforms with the following
requirements:
(A) the audit shall be performed in accordance with generally accepted auditing
standards;
(B) the financial statements shall be presented in accordance with generally accepted
accounting principles; and
(C) the audited financial statements shall be as of a period within the last 12 months;
and
(ii) submit the audit report or report of the agreed upon procedure to the state board
when the private school applies to accept scholarship students;
(c) comply with the antidiscrimination provisions of 42 U.S.C. 2000d;
(d) meet state and local health and safety laws and codes;
(e) provide a written disclosure to the parent of each prospective student, before the
student is enrolled, of:
(i) the special education services that will be provided to the student, including the cost
of those services;
(ii) tuition costs;
(iii) additional fees a parent will be required to pay during the school year; and
(iv) the skill or grade level of the curriculum in which the prospective student will
participate;
(f) (i) administer an annual assessment of each scholarship student's academic
progress; and
(ii) report the results of the assessment described in Subsection (1)(f)(i) to the
scholarship student's parent;
(g) employ or contract with teachers who:
(i) hold baccalaureate or higher degrees;
(ii) have at least three years of teaching experience in public or private schools; or
(iii) have the necessary skills, knowledge, or expertise that qualifies the teacher to
provide instruction:
(A) in the subject or subjects taught; and
(B) to the special needs students taught;
(h) maintain documentation demonstrating that teachers at the private school meet the
qualifications described in Subsection (1)(g);
(i) require the following individuals to submit to a nationwide, fingerprint-based
criminal background check and ongoing monitoring, in accordance with Section 
53G-11-402
,
as a condition for employment or appointment, as authorized by the Adam Walsh Child
Protection and Safety Act of 2006, Pub. L. No. 109-248:
(i) an employee who does not hold a current Utah educator license issued by the state
board under Chapter 6, Education Professional Licensure;
(ii) a contract employee; and
(iii) a volunteer who is given significant unsupervised access to a student in connection
with the volunteer's assignment; and
(j) provide to the parent of a scholarship student the relevant credentials of the teachers
who will be teaching the scholarship student.
(2) A private school is not eligible to enroll scholarship students if:
(a) the private school requires a student to sign a contract waiving the student's rights
to transfer to another qualifying school during the school year;
(b) the audit report submitted under Subsection (1)(b) contains a going concern
explanatory paragraph; or
(c) the report of the agreed upon procedures submitted under Subsection (1)(b) shows
that the private school does not have adequate working capital to maintain operations for the
first full year, as determined under Subsection (1)(b).
(3) A home school is not eligible to enroll scholarship students.
(4) Residential treatment facilities licensed by the state are not eligible to enroll
scholarship students.
(5) A private school intending to enroll scholarship students shall submit an application
to the state board [
by May 1 of the school year preceding the school year in which the private
school intends to enroll scholarship students
].
(6) The state board shall:
(a) approve a private school's application to enroll scholarship students, if the private
school meets the eligibility requirements of this section; and
(b) [
make available to the public
] 
publish on the state board's website,
 a list of private
schools approved under this section.
(7) A private school approved under this section that changes ownership shall:
(a) submit a new application to the state board; and
(b) demonstrate that the private school continues to meet the eligibility requirements of
this section.
Section 7. Section 
59-7-625
 is amended to read:
59-7-625.
Nonrefundable tax credit for donation to Special Needs Opportunity
Scholarship Program.
(1) A taxpayer that makes a donation to the Special Needs Opportunity Scholarship
Program established in Section 
53E-7-402
 may claim a nonrefundable tax credit equal to 100%
of the amount stated on a tax credit certificate issued in accordance with Section 
53E-7-407
.
(2) [
(a)
] If the amount of a tax credit listed on the tax credit certificate exceeds a
taxpayer's liability under this chapter for a taxable year, the taxpayer
:
(a)
 may carry forward the amount of the tax credit exceeding the liability for a period
that does not exceed the next three taxable years[
.
]
; and
(b) [
A taxpayer may not
] 
may
 carry back the amount of the tax credit that exceeds the
taxpayer's tax liability [
for the
] 
to the previous
 taxable year.
Section 8. Section 
59-10-1041
 is amended to read:
59-10-1041.
Nonrefundable tax credit for donation to Special Needs Opportunity
Scholarship Program.
(1) Except as provided in Subsection (3), a claimant, estate, or trust that makes a
donation to the Special Needs Opportunity Scholarship Program established in Section
53E-7-402
[
,
] may claim a nonrefundable tax credit equal to 100% of the amount stated on a tax
credit certificate issued in accordance with Section 53E-7-407.
(2) [
(a)
] If the amount of a tax credit listed on the tax credit certificate exceeds a
claimant's, estate's, or trust's tax liability under this chapter for a taxable year, the claimant,
estate, or trust
:
(a)
 may carry forward the amount of the tax credit exceeding the liability for a period
that does not exceed the next three taxable years[
.
]
; and
(b) [
A claimant, estate, or trust may not
] 
may
 carry back the amount of the tax credit
that exceeds the claimant's, estate's, or trust's tax liability [
for the
] 
to the previous
 taxable year.
(3) A claimant, estate, or trust may not claim a credit described in Subsection (1) to the
extent the claimant, estate, or trust claims a donation described in Subsection (1) as an itemized
deduction on the claimant's, estate's, or trust's federal individual income tax return for that
taxable year.
Section 9. 
Retrospective operation.
The changes to the following sections have retrospective operation for a taxable year
beginning on or after January 1, 2022:
(1) Section 
59-7-625
; and
(2) Section 
59-10-1041
.