5 Congressional Approval <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 gameRapidly accelerating retirements/electoral turnoverShort term (one-cycle) fixes to problemsConstant crisis54 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 leftMembers playing to a number of constituencies:Special interest groups (NRA, EMILY’s List, unions, environmental groups, etc.)Parties and party subdivisionsParty leadership (for money/ leadership positions)Racing to make an impact on areas visible to votersSee these priorities make an appearance through:Legislative actionHearings/meetings/round-tablesPublic discussions and statementsWhat’s left out? Substantive policy legislation
8 Omnibus 2014Massive, $1.1 trillion FY 2014 spending based on agreed-to capsIndividual appropriations account bills drafted by Appropriations subcommittees, then combinedBrings funding for non-defense discretionary federal programs nearly – but not quite –to pre-sequestration levels
10 Omnibus 2014 Winners Losers Head Start Increase over FY (COLA), plus $500 million for Early Head StartEarly EducationNew $250 million for competitive Race to the Top Early Education programSchool NutritionNew $25 million in competitive school equipment grantsLosersDepartment of Labor programs (except WIA)Targeted programs (like Rural Education, Advanced Placement, Promise Neighborhoods) – no increase over sequestrationPresident’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 AssurancesStudent achievement is the most important factor in renewing a charterSIG ChangesNew grants 5 yearsTwo new models (partnership with experienced organization, State-designed with ED approval)IDEA Maintenance of EffortState – no permanent penalty (1 year penalty per year of violation)LEA – Congressional intent agrees with ED’s 2012 “Letter to Boundy”
12 President’s ProposalESEA 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: SenateStrengthening America’s Schools Act of 2013 (S. 1094) passed out of Committee on party line vote June 12th, 2013Based largely on waiversRequires standards, assessments, performance targetsSets “n-size” at 15 studentsIncreased data/reporting requirements (cross-tabulation)Interventions in priority/focus schoolsAdds personnel expenditures to comparability calculationStates must implement teacher/principal evaluationsCommittee Chairman Tom Harkin (D-IA) said he hopes to get it to the floor, but prospects still murky approaching NIL
14 ESEA: HouseStudent Success Act in (H.R. 5) passed House of Representatives on July 19, 2013Similar to bills passed in 112th CongressEliminates AYP, HQT requirementsStates would get to set own performance targets, little federal guidanceTeacher/principal evaluations required (with student achievement as a significant factor)Overall smaller federal role
15 Consensus: reauthorization will wait until 2015 or later ESEA: OverallConsensus: reauthorization will wait until 2015 or laterS.S. HouseESEAS.S. Senate
17 Waivers So Far 42 States and DC have been approved for waivers Many waivers “conditional”Have not applied:Vermont (withdrew)MontanaNorth DakotaNebraskaCalifornia (???)States with waiversStates with applications under review
18 Additional Waivers “CORE” District waiver August 2013 Nine California school districtsState, accountability?Teacher EvaluationsDelay implementation of new teacher evaluations using student growthOne additional year (until SY )Double-testingStates can give each student either their own tests or a consortium field testBUT each student must take a “complete” test in both math and English/language artsStates 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 studentsConcerns:Super Sub groups mask smaller group accountabilityHS graduation rates for subgroupsELLs, SWDsTeacher Equity
20 What’s Next for Waivers: High Risk States having problems with teacher/principal evaluation systems (all got conditional approval)KansasOregonArizonaWashingtonED says that if not in compliance by end of SY , revokeAt 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 EDCan’t approve something too far afield from “principles”Complaints from other StatesPolitically risky to revoke waiversStates back to NCLBBacklash from States, CongressWant to push Congress to reauthorize ESEACongressional discontent over waivers may drive some actionWant 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 impactImpact high rates of suspension / expulsionDisparate 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 School40% students certified-free meals through means other than household applicationSNAP / 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 disadvantagedAll studentsEligibility based on poverty:
29 Community Eligibility Option Title I ImplicationsSchool Eligibility and Rank and ServeUse number from multiplier
30 -LEA may include all or some schools USDA GuidanceFebruary 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 GuidanceReleased Feb. 24 by Privacy Technical Assistance Center (PTAC).Clarifies privacy requirements for online toolsPTAC accepting comments at
33 Privacy GuidanceFocuses 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
34 Online ActivitiesStudent access for class readings View student’s learning progression Watch video demonstrations Comment on class activities Complete their homework
35 MetadataLarge amount of contextual or transactional data as part of online operationsConsidered protected under FERPA unless stripped of all direct and indirect identifiersIf 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 contractsNo-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 stewardshipCollection of dataUse, retention, disclosure, and destruction of dataRight of parents and students to access and modify their dataOther 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 provisionsprint or save the terms of servicelimit 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 ReviewIncrease EfficiencyStrengthen 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 PerformanceAuditors (A Federal OIG) and Monitors (Federal and State Pass Through) must look more to “outcomes” than to “process”
50 FlexibilityThe “Omni Circular” adds significant flexibility to way grantee / subgrantee can adopt their own processes
52 DisclaimerThis 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.