The Illusion of Choice: Education FreedomAccounts and Students with IEPs

One of the clearest gaps between New Hampshire's Education Freedom Account (EFA) program and its "school choice" rhetoric concerns students with disabilities — a population the program's own funding structure singles out for additional support yet offers the weakest protection for our most vulnerable students.

A rigorous standard exists — for public schools

New Hampshire's special education law sets a demanding bar for determining who qualifies as a "child with a disability." Under N.H. Rev. Stat. Ann. § 186-C:2 (2024), that designation covers any person between the ages of 3 and 21 who has been identified and evaluated by a school district under rules adopted by the state board of education, and found to have one of an enumerated set of conditions — among them intellectual disability, hearing impairment (including deafness), speech or language impairment, visual impairment (including blindness), emotional disturbance, orthopedic impairment, autism, traumatic brain injury, acquired brain injury, other health impairment, specific learning disability, deaf-blindness, multiple disabilities, or developmental delay in early childhood — where the impairment creates a need for special education services (N.H. Rev. Stat. Ann. § 186-C:2, 2024). Qualification, in other words, requires a school-district-administered evaluation, conducted under state-board rules, against a closed and specific list of categories. This is the standard the state applies when public money funds special education inside the public system. It is not the standard applied inside the EFA program.

What the state's own oversight committee found

At a June 15, 2026, meeting of the Education Freedom Account Oversight Committee, state officials laid out — largely without prompting from outside critics — just how far the EFA program's disability-verification process departs from that standard (Rayno, 2026).

No case-by-case verification. Matt Southerton, Director of Policy and Compliance for the Children's Scholarship Fund of New Hampshire (CSF), the organization that administers the program statewide, told the committee plainly: "We do not audit that on a case-by-case basis" (as cited in Rayno, 2026). Southerton went on to explain that CSF's role is limited to identifying the student, confirming that service providers are compliant, and verifying that funds were spent on allowable services — not investigating whether the specific services a student receives correspond to that student's disability. He acknowledged the organization is not positioned to determine whether those services align with what an IEP would require (Rayno, 2026).

Meaningful money, minimal scrutiny. This school year, 890 of the program's 10,510 students received a disability/special-education funding differential of $2,145 apiece — nearly $2 million in additional state aid — stacked on top of the $4,625 base adequacy grant every EFA student receives (Rayno, 2026). That is a substantial share of program spending flowing through a verification process the state's own administrator describes as unaudited at the individual level.

Any licensed medical provider, in any state, can certify a qualifying disability. Unlike the public-school pathway, which requires a school-district evaluation under state board rules, the EFA pathway allows qualification either through that formal evaluation or through certification by a medical provider licensed anywhere in the country, per Ed 804.01(d)(2) (New Hampshire Department of Education, 2024; Rayno, 2026). Committee chair Rep. Rick Ladd (R-Haverhill) raised the obvious problem with this alternative: certification standards vary state to state, and New Hampshire imposes no requirement that the certifying provider be a specialist in the relevant condition. Ladd put the concern bluntly, observing that someone in another state entirely is effectively deciding who in New Hampshire has a qualifying disability (Rayno, 2026).

No statutory foundation for the categories used. Ladd also noted that the thirteen disability categories used in the EFA program exist only in administrative rule, not in statute — a materially weaker and more easily altered legal foundation than the one Section 186-C:2 provides for public school students (Rayno, 2026). Department of Education Finance Bureau Administrator Mark Manganiello, for his part, explained why: the state Board of Education has been unable to require EFA-bound students to go through the formal public-school qualification process precisely because those students are not enrolling in public school in the first place (Rayno, 2026). The system's rigor, in other words, is tied to an enrollment pathway that EFA is designed to let families avoid.

No ongoing outcome tracking. In public schools, IEP recipients are evaluated annually and undergo a formal reevaluation every three years, generating an ongoing record of whether services are working. Ladd raised this comparison directly with committee staff; the discussion did not surface an equivalent tracking mechanism for EFA-funded services (Rayno, 2026).

Rights waived, funding undiminished. Rep. Peggy Balboni (D-Rye) offered perhaps the sharpest formulation of the problem. She noted that an EFA disability designation is a step up from an ordinary disability finding, because — unlike many public-school students found to have a disability without qualifying for services — it comes with dedicated funding attached. She then put the resulting asymmetry directly: "The parents waive all rights for special education," she said, while state funding continues regardless (as cited in Rayno, 2026). This is worth sitting with: students who leave the public system for an EFA give up the enforceable rights to special education services that federal and state law guarantee — due process hearings, annual and triennial reevaluation, a legally binding IEP — while the state's disability-linked payment continues on the strength of a single outside medical certification, unaudited against actual services delivered.

Admission remains fully discretionary

Layered on top of this verification gap is a separate, structural one: nothing in the EFA statute obligates any private school to admit a student with an IEP or documented disability. Private schools accepting EFA funds retain the same discretionary admissions authority they hold outside the program. And once a family unilaterally places a child in private school using EFA funds, the program's own guidance makes clear that the protections built around public enrollment do not travel with them. Citing federal regulation 34 C.F.R. § 300.148(a) (2024), the program's parent handbook states that children with disabilities placed by their parents in a private school are not entitled to a free appropriate public education (FAPE) in connection with that enrollment while participating in the EFA program (as cited in Baron, 2022). That federal provision predates the EFA program, but the program increases its relevance by subsidizing more families into the exact placement it describes.

The state's own enrollment rules do give priority to "a child with disabilities as defined by RSA 186-C:2" among a short list of categories exempted from the program's enrollment cap (N.H. Rev. Stat. Ann. § 194-F:3, 2025). But priority in the application queue does not guarantee appropriate services once enrolled, and it certainly does not guarantee admission to any specific private school.

The core argument

The EFA program was marketed as expanding options for underserved populations, including students with disabilities. In practice, it replaces a statutorily defined, professionally evaluated, annually monitored system of guaranteed services with a self-certifying, unaudited funding stream that a private school can decline and that comes with no enforceable service obligation once accepted. For a family whose child has significant support needs, "choice" is illusory if every private option can lawfully refuse them, and the one option — the public system — that was legally bound to serve children effectively. This accountability critique has direct documentary support from the program's own administrator and the legislative committee charged with overseeing it, both of whom said so on the record (Rayno, 2026).

References

Baron, J. M. (2022, September 13). NH education freedom accounts: Some basics every New Hampshire parent should understand. Special Education Blog. https://specialeducation-lawyer.com/2022/09/13/nh-education-freedom-accounts-some-basics-every-new-hampshire-parent-should-understand/

New Hampshire Department of Education. (2024). Education Freedom Accounts: A guide for students with disabilities. https://www.education.nh.gov/sites/g/files/ehbemt326/files/inline-documents/sonh/efa-for-students-with-disabilities_0.pdf

N.H. Rev. Stat. Ann. § 186-C:2 (2024). https://law.justia.com/codes/new-hampshire/title-xv/chapter-186-c/section-186-c-2/

N.H. Rev. Stat. Ann. § 194-F:3 (2025). https://gc.nh.gov/rsa/html/XV/194-F/194-F-3.htm

Rayno, G. (2026, June 15). Special education issues raised on Education Freedom Account program. InDepthNH.org. https://indepthnh.org/2026/06/15/special-education-issues-raised-on-education-freedom-account-program/

34 C.F.R. § 300.148(a) (2024). https://www.law.cornell.edu/cfr/text/34/300.148