Brumania: The Bruman Blog

How Betsy DeVos Can Shape Policy in Her First Weeks

The President-elect offered a limited number of campaign promises and platforms related to education, but those he did offer focus on the idea of providing “school choice” and promoting access to charter schools and private school vouchers.  But many of these proposals are wide-ranging, and would need approval from Congress, where leaders have indicated they will spend their time addressing federal spending, health insurance, and entitlement reform.  With that in mind, Trump’s soon-to-be Secretary of Education, Betsy DeVos, will have to find ways to impact federal education policy from within the confines of existing law.

Among those potential actions: announcing a ban on federal support for Common Core.  Common Core State Standards are a big issue for many Americans, and they came up many times on the campaign trail.  Under the newly-passed Every Student Succeeds Act (ESSA), the Secretary of Education is prohibited from requiring that standards be submitted for review or doing anything to “mandate, direct, control, coerce, or exercise any direction or supervision over any of the challenging State academic standards adopted or implemented by a State.”  He or she also may not require States “to adopt the Common Core State Standards developed under the Common Core State Standards Initiative or any other academic standards common to a significant number of States.”

These very clear prohibitions mean that, even if DeVos wanted to, she could not possibly do anything to encourage common standards.  But she could also simply send out a letter to States vowing to never do all those things prohibited in the statute – and, for the Trump camp, that could be a symbolic win.

DeVos could also find ways to exercise the existing flexibilities within ESSA.  For example, there is a weighted student funding pilot in Title I – a nod to the funding portability that Congressional Republicans had originally hoped to add.  Under this program, up to 50 districts will be permitted to combine their federal, State, and local dollars into a flexible funding pilot so long as funding ultimately meets certain benchmarks protecting low-income students and English learners and so long as money goes only to public schools.  If considered successful, the pilot can be opened up to all districts in the 2019-20 school year.  While the Obama Administration has made no moves toward implementing this program, it is likely to be a top priority for DeVos, and could be a way for her to offer more flexibility to local educational agencies (LEAs) right away.

ESSA also contains a number of new provisions which advocate for private schools – those provisions require States to create an ombudsman for private schools within the State educational agency and allow States to provide services directly to schools if LEAs are not meeting their obligations.  DeVos’ department could potentially revise existing guidance around equitable services to private schools, boosting the clout of those schools and the deference they must be given.

Finally, DeVos could tweak some of the regulations regarding accountability for charter schools.  ESSA says only that “the accountability provisions under this Act shall be overseen for charter schools in accordance with State charter school law,” leaving it relatively unclear exactly how other accountability provisions in the law apply to those schools.  In the final accountability regulations published this month, the U.S. Department of Education made it clear this administration believes charters should be accountable in the same ways as traditional public schools.  But DeVos could, with relatively little fanfare, revise those regulations in ways that give charter schools – and their State authorizers – more autonomy to determine exactly what provisions they would be obligated to follow.

With some judicious application of existing law and flexibility, DeVos could easily find ways to advance her policy priorities – and the President-elect’s – without waiting for action from Congress.

Posted: December 21st, 2016

Lawmakers Plan to Overhaul Obama-Era Policies Using Obscure Procedures

Anticipating an incoming majority in both the House and Senate as well as a Republican moving into the White House in the next few months, Republicans in Congress are considering how to move their legislative priorities through Congress both quickly and effectively.  Among the potential methods being considered are two relatively obscure Congressional procedures that would allow the new Congress to make sweeping changes within their first few weeks.

The first of those processes comes through the Congressional Review Act (CRA).  Passed in 1996, the CRA states that Congress may pass a joint resolution of disapproval within 60 days of the publication of any final regulation.  If signed by the President, that resolution not only rescinds the regulation at issue, it also prevents the agency from ever issuing anything “substantially similar” on the same piece of law.

The CRA contains a number of provisions designed to maximize Congress’ ability to file such a resolution.  First, the law gives Congress 60 legislative days to file such a resolution.  Given how little Congress has been in session this year, that means regulations published as early as May could be subject to the CRA.  Second, a rule that is submitted less than 60 legislative days before adjournment is still subject to consideration in the new Congress, and in fact is treated as if it were published on the 15th legislative day of the new session.  Expedited procedures under the CRA ensure any such resolutions can move through Congress quickly.

While the CRA does not explicitly allow for “bundling” of regulations to be rescinded, new legislation introduced in Congress – and passed in the House – this week would amend the law to do just that, limiting the amount of legislative work that has to be done in order to drastically change the regulatory landscape.

Moreover, the prohibition on “substantially similar” regulations has been fairly widely read to drastically limit an agency’s regulatory ability going forward.  If, for example, Congress passed a resolution of disapproval which included the still-to-be-finalized supplement, not supplant regulations under Title I, the U.S. Department of Education (ED) could not promulgate any similar regulations until a new statute is passed.  That section of the law could remain unregulated until after the next reauthorization of the Elementary and Secondary Education Act (ESEA), leaving States and districts to rely instead on the plain language of the statute and non-regulatory guidance.

Congress is also eyeing a procedure known as “reconciliation” to amend current law using a majority in the Senate, rather than the 60-vote threshold which is usually needed for substantive policy legislation.  Reconciliation is a budget-based process which is essentially a mechanism for balancing the Congressional checkbook, reconciling the budget with actual spending.  Congress is allowed to make changes under reconciliation in order to do that balancing, but the “Byrd Rule” restricts what changes are allowed to only those which have a budgetary impact.  It may be used only once per federal fiscal year, and may not be used for measures which amend Social Security or which would result in a net increase in mandatory spending.

Still, reconciliation has been used in the past to make major policy changes – for example, it was used in 2010 to pass the Affordable Care Act (ACA) and transition from federally-backed student loans to all federally-originated direct loans.  Now Republicans in Congress want to use the same procedure to gut the ACA, and potentially make other sweeping changes to federal law.  Though it is unlikely that any of these changes would impact education (Republicans in Congress have not indicated that changing the student loan process is a top priority, for example), the use of reconciliation will be controversial and the content of such a bill would take up a significant amount of Congressional bandwidth, leaving little time for the consideration of policy legislation.

There are a couple takeaways as we look into the new year: one is that Republicans are open to using any means at their disposal to accomplish their legislative and regulatory agenda.  This includes using expedited procedures that leave little room for input from stakeholders.  Second, the use of these procedures – or even the suggestion that they might be used – will create an atmosphere where Congressional Democrats will try to block as much legislation as possible, exacerbating the current legislative log jam and partisan conflict.

With this in mind, Vice President-elect Mike Pence reportedly told Republican lawmakers in Congress this week to “buckle up” for the coming ride.

Posted: November 18th, 2016

After Election, Appropriations Issues Loom for Education

As we eagerly count down the final days before the 2016 election season comes to a close, there are a few issues that Brustein & Manasevit is tracking closely for an appearance in the lame duck Congressional session that occurs between election day and the date a new Congress is sworn in early next January, many of which relate to appropriations – the annual process by which Congress allocates funding for federal programs

The appropriations legislation Congress passed in September only funds the federal government through December 9th.  This means that Congress must pass another bill during the lame duck session in order to keep federal programs up and running.  We don’t yet know if this will be a full-year appropriations bill (though this seems doubtful; legislators are often reluctant to pass permanent policy legislation or even longer-term appropriations bills once a number of them have been voted out of office or announced their retirement, arguing that the current legislative body has lost its mandate to make significant changes).  There are two major appropriations issues that come with the implementation of the new Every Student Succeeds Act (ESSA): loss of funding at the district level in Title I and Title II, and reduction in funding for new Title IV block grants

ESSA requires States to set aside 7% of their Title I, Part A allocation for new School Improvement Grants, which may be allocated to local educational agencies (LEAs) by formula or competitively, and permits them to set aside an additional 3% for Direct Student Services.  At the same time, the independent funding stream for the 1003(g) School Improvement Grants has been eliminated.  While draft appropriations bills introduced in Congress earlier this year would slightly increase Title I funding, they would not increase it enough to cover these set-asides.  Furthermore, in order to accommodate these set-asides, ESSA provides for a one-year suspension of the “hold harmless” protections in Title I, meaning that there is no backstop to prevent LEAs from losing a significant amount of funds.  This means that – especially in States which allocate funds competitively – LEAs may find their Title I allocation is lower in the 2017-18 school year than in previous years.  Funds which come to the LEA through those set-asides may increase the total, but are dedicated to specific purposes.

Next is the issue of Title II funding.  ESSA gradually changes the funding formula and phases out the “hold harmless” for State allocations, but does not do the same at the LEA level.  Instead, the hold harmless will be immediately eliminated, leading to significant one-year increases or decreases for LEAs.  Those LEAs which have recently seen significant population shifts – including those which have seen large numbers of students move to charter schools – are particularly at risk here.

Finally, Congress is considering significant cuts to Title IV.  Many of the smaller Title IV programs currently in effect are being eliminated or consolidated into a new Student Support and Academic Enrichment block grant.  Block grants are intended to provide flexible funding to States or districts, but are also notorious targets of spending cuts, and this new block grant is no exception.  Proposals before Congress this year – including a proposed budget from President Obama – suggested cuts of anywhere from 37% to a little more than 80%.  Even if the major players ultimately find a compromise somewhere in the middle, States and districts will find themselves with significantly less funding to use for this new flexible grant program.

In addition to funding cuts, the next appropriations bill may include some policy riders.  These are non-funding provisions that are attached to a spending bill as a condition – essentially requiring or preventing a federal agency from taking a specific action if they want money for that fiscal year.  Though education riders – especially those targeting nationwide policies – are relatively rare, the proposed Supplement, not Supplant regulations published by the U.S. Department of Education (ED) this fall could prove an exception.  Senator Lamar Alexander (R-TN) and a number of other Congressional Republicans have voiced their strong opposition to the regulations, and have implied that they would take action to prevent those regulations from going into effect – including, potentially, placing a rider on an appropriations bill rendering them unenforceable.

Though the political circus will soon be over in much of the nation, here in Washington it will be ramping up again.  Brustein & Manasevit will be tracking these developments closely once the dust of the election has cleared – stay tuned.

Posted: November 02nd, 2016

What to Expect from the Lame Duck Session

With the November 8th presidential and congressional elections quickly approaching, Congress has left Washington once again for an extended recess so members can focus on campaigning and reelection races.  Congress has been in session fewer days this year than usual – an occurrence not uncommon in an election year – which has allowed members minimal time to advance major legislative priorities.

This has been particularly true in the area of education, inciting disappointment from those who hoped members of the House and Senate education committees could garner bipartisan support to reauthorize the Higher Education Act (HEA) this year as they did for the Elementary and Secondary Education Act last fall.  In addition, many individuals in education have had their eyes on a potential reauthorization of the Carl D. Perkins Career and Technical Education Act (Perkins), which given its noncontroversial nature was seen as a real possibility earlier this year.

Given that it is an election year with limited session days for Congress and the fact that many higher education issues fall along partisan lines, it is not the year for HEA.  Congress has made some progress, however, on advancing a Perkins reauthorization bill, which is much less contentious than an HEA reauthorization would be.  In fact, the House Committee on Education and the Workforce unanimously passed reauthorization legislation out of committee earlier this year before Congress left for its summer recess.  After returning in September, the full House considered the legislation and voted to pass it with widespread bipartisan support.  The chances of a Perkins reauthorization occurring this year seemed somewhat promising when soon after the House’s passage of the bill, the Senate Committee on Health, Education, Labor, and Pensions scheduled a markup of its own version of a Perkins reauthorization.  The Senate, however, postponed its markup indefinitely over a partisan dispute regarding language contained in the bill that places significant prohibitions on the Secretary of Education’s authority – a provision supported by Republicans.  ESSA includes similar limitations on the Secretary’s authority, but the Senate Perkins language takes those restrictions even further.  Democrats have expressed reservations about overly restricting the Secretary’s power to enforce the law, likely related to the way Republicans have used the prohibitive language in ESSA to push back against recent regulatory action taken by the U.S. Department of Education.

For most of September, however, appropriations dominated lawmakers’ attention as they worked to hash out a deal on a short-term spending deal to keep the government funded until after the November elections and ultimately passed a continuing resolution that expires on December 9th.

The focus on appropriations will continue following the elections in November, after which Congress has approximately 4 weeks left in a lame duck session before its scheduled holiday recess.  What to expect from the lame duck session depends in part on the outcome of the presidential and congressional races on November 8th.  Appropriations will dominate the landscape regardless, but what type of spending deal lawmakers reach in December may be impacted by which party gains control of the White House and whether Republicans retain a majority in the House and Senate.  Another short-term spending deal extending into January, as opposed to a full year appropriations bill, may be appealing to some lawmakers if they see an opportunity for greater political leverage after a new Congress and president is sworn in.

There is still a chance that the Senate could consider Perkins reauthorization during the lame duck session, but that depends solely on whether Republicans and Democrats can hash out an agreement regarding the secretarial limitations included in the Senate draft bill.  If Republicans are unwilling to tone down that language, Perkins reauthorization will likely be pushed until next year.

With appropriations at the forefront for the lame duck session, including coming to an agreement on funding for the water crisis in Flint, Michigan, and having limited session days left before the end of the year, we are unlikely to see any other major legislative activity besides a spending deal before the 114th Congress comes to a close.

Posted: October 07th, 2016

How the New OMB Compliance Supplement Will Affect Education Programs

November 3, 2016 at 1:00pm Eastern

By: Steven Spillan, Esq.

Course Description – TBD

Costs:    

  • $225.00 for Live Webinar
  • $225.00 for Online Recording (available via internet, no CPE credits awarded)
  • $325.00 for both Live Webinar and Online Recording

Click HERE to register

CPE Credits: 1.5 (Details Below)

Who Will Benefit: This webinar is of value to all federal granting agencies, federal grant recipients, and everyone who works with federal grants, including:

  • Grant and program administrators
  • Grant program staff
  • State, district and school personnel
  • Program monitors

Learning Objectives:

  • Attendees will
  • Attendees will
  • Attendees will
  • Attendees will

Cancellation Policy: Cancellations must be submitted in writing to webinars@bruman.com at least 48 hours prior to any webinar to receive a full refund.

CPE Information

Duration: 75 minutes of presentation then time for questions (no longer than 90 minutes total).

Prerequisites: None

CPE Credits: 1.5 CPE Credits awarded upon completion of the audio conference (as verified through attendee participation checks throughout the webinar) and post-conference survey.

The CPE credit(s) may be accepted as continuing legal education credits or other applicable credits in your state; however, attendees are responsible for their own credit approval and for meeting any state requirements.  Brustein & Manasevit, PLLC makes no guarantee or assurance that the CPE credits received will apply to any other program or state requirements.

Where: Your office or conference room, per internet connection

Recommended Field of Study: Administrative Practice

Program Knowledge Level: Overview

Advanced Preparation: None

Delivery Method: Group-Internet Based

Brustein & Manasevit, PLLC is registered with the National Association of State Boards of Accountancy (NASBA) as a sponsor of continuing professional education (CPE) on the National Registry of CPE Sponsors. State boards of accountancy have final authority on the acceptance of individual courses for CPE credit. Complaints regarding registered sponsors may be submitted to the National Registry of CPE Sponsors through its website: www.learningmarket.org.

Posted: September 22nd, 2016