Brustein & Manasevit’s Federal Update

The Federal Update is a weekly publication by our Legislative Office that provides our clients with an analysis of the most up-to-date issues affecting federal education and workforce programs. Below is an example of the articles included in our federal update. We will update this page periodically. If you are interested in receiving a copy of our weekly Federal Update please contact our offices!

 

2011 BRUMAN Logo

From: Michael Brustein, Julia Martin, Steven Spillan, Kelly Christiansen
Re:      Federal Update
Date:  June 23, 2017

Legislation and Guidance
House Passes Perkins Reauthorization Bill
ED Offers Guidance on ESSA State Plan Peer Review
Internal OCR Memo Revises ED Policy on Transgender Students
OMB to Eliminate COFAR
ED Asks for Comments on Regulatory Reform

News
DeVos to Appoint New Head of FSA
ED, Other Agencies Face Civil Rights Investigation
Senators Ask ED for Clarity on Voucher Requirements

 

Legislation and Guidance

House Passes Perkins Reauthorization Bill

Thursday afternoon, the House of Representatives passed bipartisan legislation to reauthorize the Carl D. Perkins Career and Technical Education (Perkins) Act.  The legislation, known as the Strengthening Career and Technical Education for the 21st Century Act (H.R. 2353) is intended to provide more decision-making and funding authority to States while updating the Perkins programs.

The legislation would align Perkins more closely with the Every Student Succeeds Act at the secondary level and the Workforce Innovation and Opportunity Act at the postsecondary level, particularly in relationship to the accountability provisions.  Moreover, the sanction authority for States or local recipients to meet 90% of the performance indicators is removed.  The substantive content of the local plan is significantly reduced and the emphasis going forward will be a required needs assessment as to where the local provider fell short on their accountability measures.

Some small modifications were made to the final bill that passed the House through a “manager’s amendment,” including moving the effective date of the legislation from January 1, 2018 to July 1, 2018.  The legislation was passed under a “suspension of the rules,” which allows non-controversial legislation that does not increase the deficit to pass through an expedited procedure without additional amendments or a recorded vote.  Members from Wyoming, West Virginia, and Louisiana did not support the bill due to changes in the current hold harmless provision.  Under the House bill, the 1998 hold harmless provision would be replaced with a provision guaranteeing States receive a minimum grant equal to at least 90 percent of its prior-year allocation.

With passage through the House complete, the bill will now head to the Senate for approval.  But Senators have said that they plan to draft their own legislation, and have not made significant progress toward this goal.  In the last Congressional session, negotiations fell apart over the restrictions that drafters wanted to place on Secretarial authority, which some said would reduce federal oversight too much.

Brustein & Manasevit plans to conduct a series of workshops on the new Perkins legislation.

Resources:
Andrew Ujifusa, “House Passes Bill to Overhaul Career-Tech Education by Giving More Power to States,” Education Week: Politics K-12, June 22, 2017.
Author: JCM

 

ED Offers Guidance on ESSA State Plan Peer Review

The U.S. Department of Education (ED) issued initial feedback last week on three State plans that were submitted within the first submission window earlier this year.  The feedback prompted concerns from State education officials and members of Congress, who expressed that ED’s comments may in fact reach beyond the letter of the law – a surprising action given DeVos’ statements before Congress regarding her approach to implementation of the Every Student Succeeds Act (ESSA), in which she ensured that if a State submits a plan that meets all statutory requirements, it will be approved without question.

In response to criticism on ED’s feedback, the agency released a frequently asked questions (FAQs) document Friday afternoon, which addresses some of these concerns.  The FAQ document emphasizes that this initial feedback on State plans does not constitute an approval or a denial and that it is completely optional for States to make changes based on that feedback.  If they wish, States may leave their ESSA plans in their current form, or they may make modifications based on ED’s comments.  ED states that the intention of the feedback is “for each State to have ample opportunity to thoroughly articulate – and then faithfully execute – a system designed to comply with the statutory provisions that are intended to support the nation’s most vulnerable students, including English learners, homeless students and students with disabilities.”

In addition, the FAQs explain that in the case of terms not defined in the statute, such as “ambitious” in reference to long-term goals and “substantial” weight in regards to indicators, the State will have discretion over defining those terms, but the Secretary will make an ultimate decision regarding whether a State’s definition is “on its face, reasonable.”

States receiving feedback letters from ED have 15 days to resubmit their State plans, if they so choose.  ED encourages States to take the time they need, even if it is longer than 15 days.  However, ED also reminds States that the statute requires ED to issue a determination on a State’s plan within 120 days from the date of submission.  ED notes that if States take longer than 15 days to resubmit plans, ED may not have the ability to adhere to the 120-day window.

ED plans to provide additional resources this summer to States that intend to submit their plans for the second submission window in September, including hosting a webinar series that will identify and discuss common issues noted by peer reviewers and ED during the first round of State plan review.  ED also reminds States that they may reach out to ED, the State Support Network, and Comprehensive Centers in order to receive technical support regarding State plan submission.

The ESSA consolidated State plan FAQs are available here.

Author: KSC

 

Internal OCR Memo Revises ED Policy on Transgender Students

In an internal memorandum obtained by the Los Angeles Times late last week, the U.S. Department of Education’s (ED’s) Office for Civil Rights (OCR) offers guidance to staff on how to handle allegations by transgender students of harassment and bullying.  The memo tells staff and regional directors at OCR not to rely on rescinded guidance on transgender accommodations issued jointly by ED and the Department of Justice under the Obama Administration.  Instead, they say, OCR staff should follow “Title IX and its implementing regulations, as interpreted in decisions of federal courts and OCR guidance documents that remain in effect, in evaluating complaints of sex discrimination against individuals whether or not the individual is transgender.”

This directive may still lead to confusion, however, as various federal courts have offered differing views as to whether gender identity – like the identity expressed by transgender students – is protected under Title IX.  The memo also does not provide clear guidance as to whether ED – and Secretary of Education Betsy DeVos – believe transgender students are protected under federal law.  The Administration as a whole has said that they do not consider such protections to be part of Title IX, but DeVos reportedly fought that decision, primarily because she was concerned about bullying.

The guidance also notes that schools can be investigated for creating a “hostile environment” for transgender students by failing to address issues like gender-based harassment or refusal to use a student’s preferred name or pronoun.

Resources:
Evie Blad, “Feds on Transgender Student Rights: Put Focus on Bullying, Not Bathrooms,” Education Week: Rules for Engagement, June 16, 2017.
Author: JCM

 

OMB to Eliminate COFAR

Last week, the Office of Management and Budget (OMB) released a memorandum regarding how the agency plans to follow the recent executive order to reduce waste and lower costs.  While this memo includes a number of different actions ranging from procurement requirements, reporting on federally-sponsored conferences, and various information technology issues, OMB is also choosing to eliminate the Council on Financial Assistance Reform (COFAR).  COFAR was the primary engineer of the Uniform Grant Guidance (UGG), codified at 2 C.F.R. Part 200, which governs how non-federal entities manage federal grants.

In support of the Administration’s executive orders, OMB is taking action to identify “low-value, duplicative, and obsolete activities that can be ended.”  Through this memo, OMB will begin rolling back these requirements and allow agency managers to manage operations, adopt best practices, and find the best way possible to reduce costs and minimize staff hours responding to duplicative and burdensome reporting requirements.  This memo is simply step one in a longer process.  Over the course of the next year, OMB plans to:

  • Continue working with agencies through the government-wide council structure to identify additional areas of low-value, duplicative, and obsolete requirements, including those that are statutory in nature, and work with the appropriate parties, including Congress, to provide relief for agencies wherever possible;
  • Coordinate with the federal government’s other central management offices and agencies, including the Office of Personnel Management (OPM) and the General Services Administration (GSA), to identify and reduce or eliminate burdensome, low-value compliance activities;
  • Examine the processes by which OMB issues management guidance to agencies to determine where processes may be streamlined and better coordinated, and add critical document management practices, such as the addition of sunset provisions to the issuance process; and
  • Develop a long-term solution for reviewing and rescinding guidance, as well as locating OMB guidance documents in a portal that agencies can easily access.

Under the category of “Financial Management,” OMB states that COFAR, an interagency group of Executive Branch officials that was established by OMB Memorandum M-12-01, is disbanded.  While this memo offers no timeframe for a phasing out of the Council, the tone of the memo suggests this will take place sooner rather than later.  Moving forward, financial assistance priorities will be considered by the Chief Financial Officers (CFO) Council, “consistent with the goal of involving a broader community of grant-making agencies to participate in developing priorities for reforming federal grants management.”  This is significant as COFAR is the only agency that has issued government-wide guidance on implementation of the UGG.  While the various other federal agencies have provided guidance specific to their implementation decisions, only COFAR had provided answers to questions about the new rules that affect all federal grant recipients and subrecipients.

While the frequently asked questions guidance issued by COFAR had not been updated in nearly two years, the group still offered various training and information tools on their website for implementing the new rules under the UGG.  It is unclear if these online resources will remain available, or if COFAR’s website will be shut down and archived.  From this point forward, non-federal entities would be better served looking to their awarding agencies for guidance on federal grants management questions.

Author: SAS

 

ED Asks for Comments on Regulatory Reform

In a Federal Register notice this week, the U.S. Department of Education (ED) asked stakeholders to identify specific guidance and regulatory documents that are increasing compliance costs for States, districts, and teachers.

Comments on this notice will help ED fulfill an executive order, published this spring, to revise or eliminate overly burdensome regulations or those that represent federal overreach.  The Trump Administration has said that it wants to restore local decision-making to the extent possible, and remove requirements that are not strictly necessary for the effective administration of federal law or that are prohibited by law.  A number of advocates have suggested that some of the requirements issued by ED for implementation of the Every Student Succeeds Act (ESSA) are, in fact, prohibited by provisions of the law which limit the Secretary’s ability to exchange adoption of new initiatives or policies for approval of State plans or waivers.

The White House has also tasked various federal agencies with identifying regulations that “inhibit job creation,” are outdated, impose costs that exceed benefits, create inconsistencies, or are “ineffective.”  ED has issued a report detailing its progress toward this goal, which includes appointing a task force to make recommendations and conduct outreach to stakeholders, both through the Federal Register and by direct contact with advocacy organizations.

The preliminary federal register notice is available here; comments are due to ED within 60 days of publication date.  The task force report is here.

Resources:
Alyson Klein, “Trump Administration Wants Advice on Cutting Back Education Regulations,” Education Week: Politics K-12, June 21, 2017.
Author: JCM

 

News

DeVos to Appoint New Head of FSA

Secretary of Education Betsy DeVos announced in a press release on Tuesday her intent to appoint a new head of Federal Student Aid (FSA) – the U.S. Department of Education office that manages the federal government’s $1.4 trillion student loan portfolio.  Arthur Wayne Johnson, founder and chief executive of a South Dakota-based private student loan company, will fill the empty slot left by James Runcie after he suddenly resigned from his position as chief operating officer last month.

In addition to his involvement with a private student loan company, Johnson previously worked as a financial consultant and in executive positions with banking and credit card companies, and he wrote his doctoral dissertation on student loan indebtedness decision-making, particularly with respect to private student loans.

“Wayne is the right person to modernize FSA for the 21st Century,” said Secretary DeVos in a press release.  “He actually wrote the book on student loan debt and will bring a unique combination of CEO-level operating skills and an in-depth understanding of the needs and issues associated with student loan borrowers and their families.”

Some Democrats have already criticized DeVos’ pick, expressing concern over Johnson’s lack of experience with financial aid, as well as potential conflicts of interest given that he is the CEO of a private student loan company (Johnson has indicated he will step down from his current position once he takes over as Chief Operating Officer of FSA).

The announcement this week did not disclose when Johnson will begin his five-year term.

Resources:
Danielle Douglas-Gabriel and Aaron C. Davis, “DeVos picks private student loan chief to head government loan program,” Washington Post, June 21, 2017.
U.S. Department of Education Press Release, “Secretary of Education Betsy DeVos Announces Intent to Appoint Dr. A. Wayne Johnson as Chief Operating Officer of Federal Student Aid,” June 20, 2017.

Author: KSC

 

ED, Other Agencies Face Civil Rights Investigation

An independent federal watchdog agency, the U.S. Commission on Civil Rights (the Commission), has launched a two-year investigation at the U.S. Department of Education (ED) and other federal agencies to examine their civil rights practices.

The Commission, which is led by Catherine Lhamon – the Assistant Secretary of Civil Rights under President Obama – noted concern regarding the Trump Administration’s request to cut civil rights funding at agencies across the federal government, as well as statements made by cabinet members, including Secretary of Education Betsy DeVos, that suggest the current administration does not intend to robustly enforce civil rights protections.

In particular, the Commission is concerned with President Trump’s request to cut staff at ED’s Office for Civil Rights by 7 percent, or 46 employees, which would significantly increase the caseload of other staff members.  The Commission’s announcement comes days after ED’s intention to modify OCR case procedures became public.

“For 60 years, Congress has charged the Commission to monitor Federal civil rights enforcement and recommend necessary change.  We take this charge seriously, and we look forward to reporting our findings to Congress, the President, and the American people,” said Lhamon in a statement.

Two members of the Commission voted against expressing concern over the Trump Administration’s handling of civil rights, but those two individuals did vote in favor of opening an investigation.

Resources:
Alyson Klein, “Civil Rights Commission Launches Investigation Into Ed. Dept., Other Agencies,” Education Week: Politics K-12, June 16, 2017.

Author: KSC

 

Senators Ask ED for Clarity on Voucher Requirements

Two Senators – Maggie Hassan (D-NH) and Patty Murray (D-WA) have written to Secretary of Education Betsy DeVos asking her to clarify the rights of students under the President’s fiscal year 2018 budget proposal.  This proposal suggests two new school choice programs, including one in which students could use federal funds to cover a portion of their tuition at private schools.  During a hearing before the Senate Appropriations Subcommittee which handles education funding, however, a number of questions were raised about whether federal protections under the Individuals with Disabilities Education Act (IDEA) would follow students using these vouchers to attend a school of their choice.  DeVos told Senators that “any institution receiving federal funds [would be] required to follow federal law.”  However, DeVos did not clarify further and did not answer specific questions as to which protections would follow students.

In their letter, the Senators say they were “surprised and cautiously optimistic” to hear the Secretary indicate that schools accepting vouchers would have to follow IDEA.   However, they ask her to confirm in writing that this is, in fact, the position of the U.S. Department of Education.  They also ask her to make clear in future proposals that such voucher programs would require receiving schools to follow the requirements of IDEA.

The letter is available here.

Author: JCM

 

To stay up-to-date on new regulations and guidance from the U.S. Department of Education, register for one of Brustein & Manasevit’s upcoming webinars.  Topics cover a range of issues, including grants management, the Every Student Succeeds Act, special education, and more.  To view all upcoming webinar topics and to register, visit www.bruman.com/webinars.

The Federal Update has been prepared to inform Brustein & Manasevit, PLLC’s legislative clients of recent events in federal education legislation and/or administrative law.  It is not intended as legal advice, should not serve as the basis for decision-making in specific situations, and does not create an attorney-client relationship between Brustein & Manasevit, PLLC and the reader.

© Brustein & Manasevit, PLLC 2017

Contributors: Julia Martin, Steven Spillan, Kelly Christiansen