OAASFEP

APRIL

2014

LATE

ST DEVELO

PMENTS

IN W

ASHINGTO

N

L E I G H M A N A S E V I T , E S Q .

L M A N A S E V I T @ B R U M A N . C O M

B R U S T E I N & M A N A S E V I T , P L L C

W W W. B R U M A N . C O M

FEDERAL L

EGISLA

TIVE

UPDAT

E

AGENDA

• State of Congress

• Federal Funding

• Policy Legislation & ESEA Waivers

• Some Miscellaneous Agency Rules

• Omni Circular

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STATE

OF

CONGRESS

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CONGRESSIONAL APPROVAL

<Source: PPP Poll, October 2013 5

WHAT DOES THIS MEAN TO CONGRESS?

• Political angling on rare issues that are seeing some activity

• “sacred cows” fair game• Rapidly accelerating retirements/electoral

turnover• Short term (one-cycle) fixes to problems• Constant crisis

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THE NEXT BIG HURDLE: ELECTION 2014• Little time left

• Members playing to a number of constituencies:• Special interest groups (NRA, EMILY’s List, unions,

environmental groups, etc.)• Parties and party subdivisions• Party leadership (for money/ leadership positions)

• Racing to make an impact on areas visible to voters

• See these priorities make an appearance through:• Legislative action• Hearings/meetings/round-tables• Public discussions and statements

• What’s left out? Substantive policy legislation

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OMNIBUS 2014

Massive, $1.1 trillion FY 2014 spending based on agreed-to caps

Individual appropriations account bills drafted by Appropriations subcommittees, then combined

Brings funding for non-defense discretionary federal programs nearly – but not quite –to pre-sequestration levels

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OMNIBUS 2014

ESEA Title I

ESEA Title II

IDEA Part B

Head Start0

2000

4000

6000

8000

10000

12000

14000

16000

FY 2013 (pre-sequester)

FY 2013 (final)

FY 2014

(in millions of dollars)

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WinnersHead Start

Increase over FY 2012 (COLA), plus $500 million for Early Head Start

Early EducationNew $250 million for competitive Race to the Top Early Education program

School NutritionNew $25 million in competitive school equipment grants

Losers Department of Labor programs (except WIA)

Targeted programs (like Rural Education, Advanced Placement, Promise Neighborhoods) – no increase over sequestration

President’s universal Early Education proposal (Race to the Top early education instead)

President’s higher education Race to the Top proposal (early education instead)

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OMNIBUS 2014

OMNIBUS 2014 – POLICY RIDERS

Charter School Grant Program Assurances Student achievement is the most important factor in

renewing a charter SIG Changes

New grants 5 years Two new models (partnership with experienced

organization, State-designed with ED approval) IDEA Maintenance of Effort

State – no permanent penalty (1 year penalty per year of violation)

LEA – Congressional intent agrees with ED’s 2012 “Letter to Boundy”

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PRESIDENT’S PROPOSAL

ESEA Title I – frozen at current levels

IDEA Parts B, D – frozen at current levels

IDEA Part C: $100 million (0.9%) increase

Perkins CTE – current levels

AEFLA State grants – current levels

ESEA Title II: $350 million cut (-14.9%)

Preschool Development grants: $250 million increase (would double the current program)

Promise Neighborhoods: $3.3 million increase

ConnectED Professional development: new $200 million program

New preschool program ($66 billion over 10 years)

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ESEA: SENATE

Strengthening America’s Schools Act of 2013 (S. 1094) passed out of Committee on party line vote June 12th, 2013

Based largely on waivers Requires standards, assessments, performance targets Sets “n-size” at 15 students Increased data/reporting requirements (cross-tabulation) Interventions in priority/focus schools Adds personnel expenditures to comparability calculation States must implement teacher/principal evaluations

Committee Chairman Tom Harkin (D-IA) said he hopes to get it to the floor, but prospects still murky approaching NIL

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ESEA: HOUSE

Student Success Act in (H.R. 5) passed House of Representatives on July 19, 2013 Similar to bills passed in 112th CongressEliminates AYP, HQT requirementsStates would get to set own performance targets, little federal guidance

Teacher/principal evaluations required (with student achievement as a significant factor)

Overall smaller federal role

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Consensus: reauthorization will wait until 2015 or later

S.S. Senate

S.S. HouseESEA

ESEA: OVERALL

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NATIO

NAL WAIV

ERS

UPDAT

E

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WAIVERS SO FAR

42 States and DC have been approved for waivers Many waivers “conditional”

Have not applied: Vermont (withdrew) Montana North Dakota Nebraska California (???)

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States with waivers

States with applications under review

ADDITIONAL WAIVERS“CORE” District waiver

August 2013 Nine California school districts State, accountability?

Teacher Evaluations Delay implementation of new teacher evaluations using

student growth One additional year (until SY 2016-17)

Double-testing States can give each student either their own tests or a

consortium field test BUT each student must take a “complete” test in both math

and English/language arts States can also ask to delay reporting/accountability

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WAIVER RENEWAL CONCERNS

George Miller (et al) to Secretary Duncan, February 12, 2014 –

- Renewals must focus on needs of students

- Concerns:• Super Sub groups mask smaller group

accountability• HS graduation rates for subgroups

• ELLs, SWDs• Teacher Equity

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WHAT’S NEXT FOR WAIVERS: HIGH RISK

States having problems with teacher/principal evaluation systems (all got conditional approval)KansasOregonArizonaWashington

ED says that if not in compliance by end of SY 2013-14, revoke • At Council of Chief State School Officers

meeting in November 2013, said that would likely “have to revoke” “two or three” by summer 2014

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Can’t approve something too far afield from “principles” Complaints from other States

Politically risky to revoke waivers States back to NCLB Backlash from States, Congress

Want to push Congress to reauthorize ESEA Congressional discontent over waivers

may drive some action Want to frame reauthorization debate

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HIGH STAKES FOR ED

ADMINISTRATION WEIGHS IN ON DISPARATE DISCIPLINE Joint ED DOJ Letter, January 8, 2014

Discipline:

• Administration encourages policies that are fair and avoid disparate impact

• Impact high rates of suspension / expulsion

• Disparate impact on minority students

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Response:

• February 12, 2014 Letter, Rep. John Kline, Chairman• “We believe such policies are best handled by the teachers, state officials and local school leaders…”

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HEALT

HY,

HUN

GER-

FREE KID

S ACT,

2010

COMMUNITY

ELIG

IBILI

TY

OPTIO

N

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COMMUNITY ELIGIBILITY OPTION

Eligible schools – Free Meals – All students

Available to all LEAs 2014-2015 with eligible schools

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COMMUNITY ELIGIBLE OPTION

Eligible School1. 40% students certified-free

meals through means other than household application

SNAP / TANF

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COMMUNITY ELIGIBLE OPTION

2. Multiplier (initially 1.6)3. Conduct certification at least

once every four years (more frequently optional)

4. Reimbursement based on resulting number

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COMMUNITY ELIGIBILITY OPTION

Title I Implications:Disaggregation: economically disadvantaged

All studentsEligibility based on poverty:

All students

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COMMUNITY ELIGIBILITY OPTION

Title I ImplicationsSchool Eligibility and Rank and Serve

Use number from multiplier

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USDA GUIDANCEFebruary 25, 2014

-LEA may include all or some schoolshttp://

www.fns.usda.gov/community-eligibility-provision-evaluation

-Eligibility may be school x school –

-Group or

-Aggregate of total

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No Rounding!!!

…39.98% DOES NOT qualify(AG actually says this)

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RECENT FERPA GUIDANCE

Released Feb. 24 by Privacy Technical Assistance Center (PTAC).

www.Ptac.ed.gov

Clarifies privacy requirements for online tools

PTAC accepting comments at PrivacyTA@ed.gov.

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PRIVACY GUIDANCE

Focuses on privacy and security considerations relating to:

Computer softwareMobile applications (apps)Web-based tools provided by a third-party to a school or LEA that students and/or their parents access via the Internet and use as part of a school activity

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ONLINE ACTIVITIES

Student access for class readings

View student’s learning progression

Watch video demonstrations

Comment on class activities

Complete their homework

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METADATA

Large amount of contextual or transactional data as part of online operations

Considered protected under FERPA unless stripped of all direct and indirect identifiers

If provider is granted access to PII under FERPA exceptions:

May use metadata that is not linked to FERPA-protected information for other purposes, unless otherwise prohibited by the terms of their agreement.

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ONLINE TOOLS: BEST PRACTICES

Maintain awareness of relevant federal, State, tribal, or local laws,

Children's Online Privacy Protection Act: Requirements for providing online educational services to children under 13.

Be aware of which online educational services are currently being used in your LEA, for example through an inventory of all such services.

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BEST PRACTICES (CONT.)

Have policies and procedures to evaluate and approve proposed online educational services, including:

Formal contracts No-cost software and that requires only “click-through” consent.

Schools and LEAs should always be transparent with students and parents, and consider when parental consent might be appropriate.

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BEST PRACTICES (CONT.)

When possible, use a written contract or legal agreement that includes provisions on:

Security and data stewardshipCollection of dataUse, retention, disclosure, and destruction of data

Right of parents and students to access and modify their data

Other items where appropriate.

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BEST PRACTICES (CONT.)

Extra steps are necessary when accepting “Click-Wrap” licenses for consumer apps.

When consumers are required to click “OK” or “Accept” when purchasing or downloading software.

Schools and LEAs should:Check amendment provisions print or save the terms of service limit authority to accept such terms

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THE S

UPER C

IRCU

LAR –

“OM

NI

C IRCU

LAR”

THE O

NE -S

TOP S

HO

P FO

R

FEDERAL A

SS I STAN

CE

AND FIN

ALLY…

OMB REV

ISED

ADMINIS

TRAT

IVE,

COST

,

AUDIT R

ULES G

OVERNIN

G

ALL F

EDER

AL GRANTS

KEY DATES:

Feb 1, 2013 NPRMDec 19, 2013 FinalDec 26, 2013 Federal RegisterApril 2014 New OMB Compliance

SupplementJune 26, 2014ED Draft EDGAR

ChangesDec 26, 2014 Final EDGAR

Published

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DATE OF APPLICABILITY OF REVISED RULES

OMB stated on 12/20/13 All Drawdowns, after December 26, 2014

? ? ? 42

WHAT IS COVERED?A-102 – Administrative Rules State /

Local – Part 80 – EDGAR

A-110 – Administrative Rules Postsecondary – Part 74 – EDGAR

A-87 – Cost Rules – State / Local

A-21 – Cost Rules – Rules – Postsecondary

A-122 – Cost Rules – Nonprofit

A-133 – Audit Rules (>$750,000)

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WHO IS COVERED?

All “nonfederal entities” expending federal awards

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REASONS FOR THE CHANGE?

1. Simplicity2. Consistency3. Obama Executive Order on

Regulatory Review Increase Efficiency Strengthen Oversight

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WHO CRAFTED THE CHANGES?

“COFAR”Council on Financial Assistance Reform, and Key Stakeholders

www.cfo.gov/cofar

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INCONSISTENCY BETWEEN PROGRAM STATUTE AND CIRCULAR

If federal program statute or regulation differs from Omni Circular, then statute / regulation governs.

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MOST SIGNIFICANT CHANGE

Shift from focus on Compliance to focus on PERFORMANCE!!!

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PERFORMANCE

Auditors (A-133 + Federal OIG) and Monitors (Federal and State Pass Through) must look more to “outcomes” than to “process”

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FLEXIBILITY

The “Omni Circular” adds significant flexibility to way grantee / subgrantee can adopt their own processes

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QUESTIONS?

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Disclaimer

This presentation is intended solely to provide general information and does not constitute legal advice. Attendance at the presentation or later review of these printed materials

does not create an attorney-client relationship with Brustein & Manasevit, PLLC. You should not take any action based

upon any information in this presentation without first consulting legal counsel familiar with your particular

circumstances.

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