Can a child qualify for an Arkansas Succeed Scholarship voucher with a document that mirrors an IEP but is not an actual IEP under the IDEA?

Plain-English summary

Representative Mark Lowery asked AG Leslie Rutledge whether documentation that contains the substantive content of an "individualized education program" (IEP) under section 614(d) of the federal Individuals with Disabilities Education Act (IDEA) was enough to qualify a child for the Arkansas Succeed Scholarship Program. The Succeed Scholarship is a state voucher that lets parents enroll an eligible student in a participating private school.

The AG concluded that the answer was no. Ark. Code Ann. § 6-41-902(a)(2) required that a participating student have "an individualized education program in accordance with the Individuals with Disabilities Education Act," and the AG read that as a reference to the IDEA's specific defined term: a written statement developed and revised under 20 U.S.C. § 1414. A document that approximated an IEP but was not actually an IEP under IDEA did not meet that statutory requirement.

The AG flagged a related federal concept (the "services plan" under 34 C.F.R. § 300.132(b) and 34 C.F.R. § 300.37) and noted that the General Assembly could expand Succeed Scholarship eligibility to include a services plan if it amended section 6-41-902 to say so explicitly. As written in 2018, the statute did not reach that.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What is the Succeed Scholarship Program?
A: It is an Arkansas state-funded scholarship program that allows the parent or guardian of an eligible public-school student to use state funds to enroll the student in an approved private school. It was created by Act 1178 of 2015 and modified by Act 637 of 2017.

Q: What were the eligibility requirements at the time of the opinion?
A: Three core requirements: (1) the student was currently enrolled in a public school and had attended public school for at least one full academic year, (2) the student had an individualized education program (IEP) under the IDEA, and (3) the student had been accepted into an approved private school. Act 637 of 2017 added a superintendent waiver of the public-school-attendance requirement.

Q: What is an IEP under federal law?
A: An IEP, defined at 20 U.S.C. § 1414(d)(1)(A)(i), is a written statement for each child with a disability that is developed, reviewed, and revised by a school-led team in accordance with the IDEA. The federal regulations at 34 C.F.R. § 300.22 carry forward that definition for state-program purposes.

Q: Why didn't a document that mirrors IEP content count?
A: Arkansas statutory interpretation requires giving plain language its plain meaning. The AG reasoned that "individualized education program" is a defined federal term, not a generic descriptor for any disability-related school plan. So a document that approximates an IEP but does not satisfy the federal IDEA process does not meet the Arkansas statutory text.

Q: What is a "services plan"?
A: Under 34 C.F.R. § 300.132(b) and § 300.37, public school districts must develop a services plan for certain children who attend private schools. To the extent appropriate, a services plan must meet the requirements of an IEP for the services to be provided. The AG noted this is conceptually adjacent to an IEP but is not the same legal instrument.

Q: How could the law have been changed?
A: The AG suggested an amendment to Ark. Code Ann. § 6-41-902(a)(2) to say the student "has either an individualized education program as described in 34 CFR § 300.22 or a services plan as described in 34 CFR § 300.37." That kind of legislative fix would have expanded eligibility to children with services plans rather than full IEPs.

Q: Did this opinion settle the question?
A: No. AG opinions are persuasive but not binding. The opinion read the existing statutory text and identified the gap. Whether the Arkansas General Assembly later closed that gap, or whether a court reached a different result, would have to be checked against current law.

Background and statutory framework

The Succeed Scholarship Program was created by Act 1178 of 2015 and codified at Ark. Code Ann. § 6-41-901 et seq. Its design tied eligibility to students with disabilities by requiring an IEP. Act 637 of 2017 amended the program to allow a superintendent to waive the prior-year public-school-attendance requirement, but it did not waive the IEP requirement.

Federal IDEA distinguishes IEPs (for students whose schools provide special education and related services directly) from services plans (used in some private-school placement scenarios under 34 C.F.R. § 300.132(b)). IEPs are formal team-developed documents under 20 U.S.C. § 1414. Services plans are a related but distinct category.

Arkansas statutory interpretation cases like Brock v. Townsell and Ozark Gas Pipeline Corp. v. Arkansas Pub. Serv. Comm'n hold that statutes must be read for their plain meaning when the language is unambiguous. The AG applied that rule here to read § 6-41-902(a)(2) as requiring an actual IEP.

Citations and references

Statutes and regulations:

• Ark. Code Ann. § 6-41-901 et seq. (Succeed Scholarship Program)
• Ark. Code Ann. § 6-41-902(a) (eligibility criteria)
• 20 U.S.C. § 1414(d)(1)(A)(i) (federal IEP definition)
• 34 C.F.R. § 300.22 (IEP definition for state programs)
• 34 C.F.R. § 300.37 (services plan)
• 34 C.F.R. § 300.132(b) (services plan obligation for parentally-placed private school students)
• Acts 2017, No. 637 (residency-waiver amendment)
• Acts 2015, No. 1178 (original Succeed Scholarship enactment)

Cases:

• Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179 (plain meaning rule)
• Ozark Gas Pipeline Corp. v. Arkansas Pub. Serv. Comm'n, 342 Ark. 591, 29 S.W.3d 730 (2000) (no word void or superfluous)
• Moore v. Moore, 2016 Ark. 105, 486 S.W.3d 766 (statutory ambiguity standard)
• Thompson v. Younts, 282 Ark. 524, 669 S.W.2d 471 (1984) (no strained construction)
• State ex rel. Sargent v. Lewis, 335 Ark. 188, 969 S.W.2d 894 (1998) (no unexpressed legislative intent)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2017-129
June 15, 2018

The Honorable Mark Lowery
State Representative
229 Summit Valley Circle
Maumelle, AR 72113-5934

Dear Representative Lowery:

This is in response to your request for my opinion concerning the Succeed Scholarship Program ("Succeed Scholarship"). As background for your specific question, you note that under the original act establishing Succeed Scholarship, eligibility for participation in the program was based on the following prerequisites:

1) the student is currently enrolled in a public school and has attended public school for at least one (1) full academic year;
2) the student has an individualized education program (IEP); and
3) the student has been accepted into an approved private school.

As you further note, Act 637 of 2017 amended the eligibility criteria to add a provision authorizing a superintendent to waive the first requirement and allow students who are not currently enrolled in a public school and who have not attended public school for at least one year to be eligible for the program. You state that the Arkansas Department of Education has taken the position that Act 637 did not allow the IEP requirement to be waived, and that a student must therefore have an IEP to be eligible for the program.

Against this background, you ask:

Is documentation that contains the substantive content of an Individualized Education Program (IEP) under section 614(d) of the Individuals with Disabilities Education Act (IDEA) sufficient to establish eligibility of a child to participate in the Succeed Scholarship Program as a matter of Arkansas law?

RESPONSE

I gather from the wording of your question that the referenced documentation would not be an actual "individualized education program" as defined by the IDEA, but would be some approximation of that "written statement." With this understanding, it is my opinion that the answer is "no."

DISCUSSION

Your question is governed by Ark. Code Ann. § 6-41-902, which establishes the following criteria relevant to your question concerning participation in a "Succeed Scholarship":

A parent or legal guardian of a public school student may apply for a Succeed Scholarship to enroll his or her child in a private school if:
(1)(A) The student is currently enrolled in a public school and has attended public school for at least one (1) full academic year.
(B) Subdivision (a)(1)(A) of this section does not apply if . . . [t]he superintendent of the student's resident school district waives the requirement;
(2) The student . . . [h]as an individualized education program in accordance with the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq.;
(3) The student has been accepted for admission into a private school that is eligible to participate in the Succeed Scholarship Program.

Your question is essentially one of statutory interpretation. As such, the primary task is to construe the foregoing statute "just as it reads," in order to "give effect to the intent of the General Assembly." The statute must be construed so that no word is left void, superfluous, or insignificant; and meaning and effect must be given to every word in the statute if possible. When statutory language is plain and unambiguous, the meaning of the statute must be determined from the plain meaning of the language used. If the text is ambiguous, then it is appropriate to use various aids, including the statute's history, to determine the legislative intent. Additionally, our courts will not resort to a strained construction of statutory language for the purpose of restricting or expanding the plain meaning of a statute. Nothing is taken as intended by the legislature that is not clearly expressed.

Applying these precepts, I believe the unambiguous language of section 6-41-902(a)(2) allows for only one conclusion, that to be eligible for a Succeed Scholarship, a student must have an "individualized education program" that is "in accordance with the [IDEA]." And I am constrained to conclude, based on the statute's plain language, that this refers to the "written statement for each child with a disability that is developed, reviewed, and revised in accordance with 20 U.S.C. § 1414 . . . ."

Considering the plain language of section 6-41-902(a)(2) above, I cannot say that some approximation of an "individualized education program" will satisfy that requirement. The term "individualized education program" plainly is a specialized term of federal law under the IDEA. I believe a court faced with the question would conclude, based on the above rules of interpretation, that an IEP as defined by the IDEA is currently a condition for a Succeed Scholarship.

It is therefore my opinion, in response to your specific question, that documentation containing the substantive content of an IEP, but not qualifying as an IEP as defined by the IDEA, would not be sufficient to establish eligibility for a Succeed Scholarship under the statute as currently written.

I will note, however, that the IDEA does require local school districts to develop and implement an individual "services plan" for each child with a disability that the school district designates as requiring special education or related services. The federal regulations state that to the extent appropriate, a services plan must meet the requirements of an IEP as to the services that are to be provided.

The General Assembly's intent to include such a "services plan" as part of the criteria for participation in a Succeed Scholarship could be implemented through an amendment to section 6-41-902. Specifically, section 6-41-902(a)(2) could be amended to state:

The student . . . [h]as either an individualized education program as described in 34 CFR § 300.22 or a services plan as described in 34 CFR § 300.37.

Sincerely,

Leslie Rutledge
Attorney General