OAASFEP April 2014 Latest Developments in Washington Leigh Manasevit, Esq. lmanasevit@bruman.com Brustein & Manasevit, PLLC www.bruman.com

Federal Legislative Update

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

State of Congress

Congressional Approval < Source: PPP Poll, October 2013

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

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

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

Omnibus 2014 (in millions of dollars)

Omnibus 2014 Winners Losers Head Start Increase over FY 2012 (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)

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”

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)

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

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

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

National Waivers Update

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

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

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

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 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

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

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

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…”

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

Community Eligibility Option Eligible schools – Free Meals – All students Available to all LEAs 2014-2015 with eligible schools

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

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

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

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

-LEA may include all or some schools USDA Guidance February 25, 2014 -LEA may include all or some schools http://www.fns.usda.gov/community-eligibility-provision-evaluation -Eligibility may be school x school – -Group or -Aggregate of total

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

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.

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

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

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.

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.

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.

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.

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

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

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

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

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)

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

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

Who crafted the changes? “COFAR” Council on Financial Assistance Reform, and Key Stakeholders www.cfo.gov/cofar

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

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

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

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

Questions?

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.