1. OAASFEP April 2014 Latest Developments in Washington
Leigh Manasevit, Esq.
Brustein & Manasevit, PLLC

2. Federal Legislative Update

3. Agenda State of Congress Federal Funding
Policy Legislation & ESEA Waivers
Some Miscellaneous Agency Rules
Omni Circular

4. State of Congress

5. Congressional Approval
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Source: PPP Poll, October 2013

6. 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
54 members of Senate have served less than 1 full term, 18 have served more than 3

7. 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

8. 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

9. Omnibus 2014
(in millions of dollars)

10. Omnibus 2014 Winners Losers Head Start
Increase over FY (COLA), plus $500 million for Early Head Start
Early Education
New $250 million for competitive Race to the Top Early Education program
School Nutrition
New $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)

11. 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”

12. 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)

13. 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

14. ESEA: House
Student Success Act in (H.R. 5) passed House of Representatives on July 19, 2013
Similar to bills passed in 112th Congress
Eliminates AYP, HQT requirements
States 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

15. Consensus: reauthorization will wait until 2015 or later
ESEA: Overall
Consensus: reauthorization will wait until 2015 or later
S.S. House
ESEA
S.S. Senate

16. National Waivers Update

17. 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 (???)
States with waivers
States with applications under review

18. 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 )
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

19. 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

20. What’s Next for Waivers: High Risk
States having problems with teacher/principal evaluation systems (all got conditional approval)
Kansas
Oregon
Arizona
Washington
ED says that if not in compliance by end of SY , 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

21. High Stakes for ED
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

22. Administration Weighs in on Disparate Discipline Joint ED DOJ Letter, January 8, 2014
Administration encourages policies that are fair and avoid disparate impact
Impact high rates of suspension / expulsion
Disparate impact on minority students

23. 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…”

24. Community Eligibility Option
Healthy, Hunger-Free Kids Act, 2010

25. Community Eligibility Option
Eligible schools – Free Meals – All students Available to all LEAs with eligible schools

26. Community Eligible Option
Eligible School
40% students certified-free meals through means other than household application
SNAP / TANF

27. Community Eligible Option
Multiplier (initially 1.6)
Conduct certification at least once every four years (more frequently optional)
Reimbursement based on resulting number

28. Community Eligibility Option
Title I Implications:
Disaggregation: economically disadvantaged
All students
Eligibility based on poverty:

29. Community Eligibility Option
Title I Implications
School Eligibility and Rank and Serve
Use number from multiplier

30. -LEA may include all or some schools
USDA Guidance
February 25, 2014
-LEA may include all or some schools
-Eligibility may be school x school –
-Group or
-Aggregate of total

31. No Rounding!!! …39.98% DOES NOT qualify (AG actually says this)

32. Recent FERPA Guidance
Released Feb. 24 by Privacy Technical Assistance Center (PTAC).
Clarifies privacy requirements for online tools
PTAC accepting comments at

33. Privacy Guidance
Focuses on privacy and security considerations relating to:
Computer software
Mobile 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

34. Online Activities
Student access for class readings View student’s learning progression Watch video demonstrations Comment on class activities Complete their homework

35. 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.

36. 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.

37. 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.

38. Best Practices (cont.)
When possible, use a written contract or legal agreement that includes provisions on:
Security and data stewardship
Collection of data
Use, retention, disclosure, and destruction of data
Right of parents and students to access and modify their data
Other items where appropriate.

39. 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

40. And Finally… OMB Revised Administrative, Cost, Audit Rules Governing All Federal Grants
The Super Circular – “Omni Circular” The One-Stop Shop for Federal Assistance

41. Key Dates:
Feb 1, 2013 NPRM Dec 19, 2013 Final Dec 26, 2013 Federal Register April 2014 New OMB Compliance Supplement June 26, 2014 ED Draft EDGAR Changes Dec 26, 2014 Final EDGAR Published

42. Date of Applicability of Revised Rules
OMB stated on 12/20/13 All Drawdowns, after December 26, 2014
? ? ?

43. 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)

44. Who is covered?
All “nonfederal entities” expending federal awards

45. Reasons for the Change? Simplicity Consistency
Obama Executive Order on Regulatory Review
Increase Efficiency
Strengthen Oversight

46. Who crafted the changes?
“COFAR”
Council on Financial Assistance Reform, and Key Stakeholders

47. Inconsistency Between Program Statute and Circular
If federal program statute or regulation differs from Omni Circular, then statute / regulation governs.

48. Most Significant Change
Shift from focus on Compliance to focus on PERFORMANCE!!!

49. Performance
Auditors (A Federal OIG) and Monitors (Federal and State Pass Through) must look more to “outcomes” than to “process”

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

51. Questions?

52. 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.