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!

 

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From:    Michael Brustein, Julia Martin, Steven Spillan, Kelly Christiansen

Re:        Federal Update

Date:     July 27, 2018

Legislation and Guidance

Perkins Reauthorization to be Signed by President

House Democrats Release HEA Reauthorization Proposal

ED Issues Proposed Higher Ed Rules

News

ED Rolls Out Mobile Access to FAFSA

OMB Asks for Input on Government Effectiveness

Appeals Court Rules on ADA Claim from After-School Teacher

 

Legislation and Guidance

Perkins Reauthorization to be Signed by President

After passing the House of Representatives by an uncontested voice vote, a bill to overhaul the Perkins Career and Technical Education Act is expected to be signed by the President soon.  The President praised the legislation in a statement, saying that “[b]y enacting it into law, we will continue to prepare students for today’s constantly shifting job market, and we will help employers find the workers they need to compete.”

The bill, known as the Strengthening Career and Technical Education for the 21st Century Act (H.R. 2353), is intended to make federal Perkins dollars more flexible so that they can be better targeted to in-demand jobs, and to give business leaders more of a voice locally in guiding programming decisions.  It would also allow the funds to be used for students in lower grades and would set a federal definition of who is a “concentrator” and thus required to be included in State’s performance measures.  The new law would require States to set program goals and the Secretary to approve them – assuming they meet the law’s requirements.  The bill would also require States to make “meaningful progress” toward their goals.

Lawmakers and some advocates praised the bill, but others expressed concerns.  Calling the Perkins reauthorization “long overdue,” Representative Glenn Thompson (R-PA), a senior member of the House Committee on Education and the Workforce, said on the House floor Wednesday before the vote that it would “restore rungs on the ladder of opportunity.”  Business groups like the U.S. Chamber of Commerce, along with a handful of education groups like the American Federation of Teachers and the Council of Chief State School Officers, said they were glad to see the bill passed.  However, the Association for Career and Technical Education and Advance CTE, for example, say they worry the legislation could lead to States setting “unambitious” performance targets for students focusing on CTE, as well as create a heavy administrative burden for schools.

Brustein & Manasevit is working to develop materials on the new law, including a side-by-side comparison with current policy as well as a new book.

Resources:
Andrew Ujifusa, “Congress Sends Career-Technical Education Bill to President Trump,” Education Week: Politics K-12, July 25, 2018.
Author: JCM

House Democrats Release HEA Reauthorization Proposal

Democrats on the House Committee on Education and the Workforce released legislation on Tuesday to reauthorize the Higher Education Act (HEA), which was last updated in 2008.  The bill, the Aim Higher Act, aims to provide every student the opportunity to earn a debt-free degree or credential and serves as an alternative to the legislation offered by their Republican counterparts that passed through the House Committee in December, known as the PROSPER Act.

The Aim Higher Act preserves a number of the loan and grant programs that are eliminated under the PROSPER Act, including TEACH grants that offer student aid to those who commit to teaching in high-needs schools, and the Public Service Loan Forgiveness program which provides loan relief to graduates who have made timely loan payments and worked in an eligible public service job for a certain number of years.

The Democrats’ bill also increases the maximum Pell Grant award by $500 and then indexes future Pell funding to inflation – a provision the PROSPER Act does not include – and creates a federal-State partnership where States must promise to maintain investment in higher education and make an associate’s degree from a public college free for all students in return for federal grant funds.

While both HEA reauthorization proposals include efforts to simplify the Free Application for Federal Student Aid (FAFSA), they accomplish the goal in different ways.  The Aim Higher Act reduces the number of application questions and places the applicant into one of three “pathways” that is based on the complexity of the student’s finances.  And students who received a means-tested federal benefit for the previous two years will automatically become eligible for a Pell Grant without having to answer additional questions.

On accountability, the Democratic bill would maintain the current practice of using a cohort default rate for federal aid eligibility, as opposed to the PROSPER Act which switches to a program-level repayment rate.  It also modifies the so-called 90-10 rule for for-profit colleges which says that those institutions cannot receive more than 90 percent of their revenue from federal financial aid sources, bringing it down to 85 percent.

Although the Aim Higher Act is mostly a stark contrast to the PROSPER Act, the two bills do have a few commonalities as well.  Both proposals would streamline loan repayment options, providing one traditional fixed rate plan and one income-based plan, and both would allow for Pell Grants to be used for short-term programs in order to help address workforce shortages.

Resources on the Aim Higher Act, including a fact sheet and bill summary, are available here.

Resources:

Andrew Kreighbaum, “Dem Higher Ed Bill Promises More Student Aid, Tougher Accountability for Colleges,” Inside Higher Ed, July 25, 2018.

Andrew Ujifusa, “3 Things to Know About the New Bill Promising ‘Debt-Free’ Higher Education,” Education Week: Politics K-12, July 24, 2018.

Author: KSC

ED Issues Proposed Higher Ed Rules

The U.S. Department of Education (ED) recently proposed a new package of higher education regulations aimed at protecting student borrowers, holding institutions of higher education (IHEs) accountable for misrepresentation and fraud and providing financial protections to taxpayers by at-risk institutions.  The “Institutional Accountability” regulations come after months of public hearings and negotiated rulemaking that engaged a wide variety of higher education stakeholders.

According to ED, the proposed regulations include provisions that would:

  • Put into place a borrower defense to repayment adjudication process that is clear, consistent and fair to borrowers who were harmed by institutional misconduct;
  • Replace the current “State standard” for adjudicating claims with a federal standard that clearly defines misrepresentation and enables more expeditious review of student claims;
  • Facilitate collection and review of evidence for deciding claims and ensure that ED can recoup from IHEs the financial losses associated with successful borrower defense claims;
  • Encourage students to seek remedies directly from IHEs that have committed acts of misrepresentation;
  • Expand from 120 days to 180 days the period of time during which students who left an institution prior to its closure are eligible for a closed school loan discharge while at the same time incentivize closing institutions to engage in orderly teach-outs, which enable more students to complete their program;
  • Ensure that IHEs requiring students to engage in mandatory arbitration or prohibiting them from participating in class action lawsuits provide plain language explanations of these provisions to enable students to make an informed enrollment decision;
  • Prevent guaranty agencies from charging borrowers a fee if a defaulted loan goes into repayment within 60 days; and
  • Protect taxpayers by requiring IHEs to post a letter of credit when events occur that put the institution’s continuing operations or financial stability at risk.

The proposed regulations will be open for public comment over the next 30 days.  In addition to seeking public comment on all provisions of the proposed regulation, ED is specifically asking for public comment on two different approaches to accepting borrower defense to repayment claims, which include:

  • Accepting “defensive” claims only, which limit borrower defense claims to defaulted borrowers who are in a collections proceeding; or
  • Accepting both “defensive” and “affirmative” claims, including from borrowers still in repayment.

Since the implications of this determination are far-reaching for taxpayers and borrowers, ED is seeking comment on how to balance the need to protect borrowers from acts of institutional fraud with the need to protect taxpayers from the high cost of unjustified claims.

This is the first major set of proposed rules offered under DeVos’ leadership.  Until now, most regulatory actions at ED focused on delaying or rescinding regulations promulgated by the previous administration.  This could be considered a test case for DeVos moving forward.  If the rulemaking process becomes too laborious, ED may stick to issuing non-regulatory guidance to push policy from this point forward.

The unpublished rule is available on ED’s website.  The rule is currently scheduled to be published in the Federal Register on July 31, 2018.

Author: SAS

News

ED Rolls Out Mobile Access to FAFSA

The U.S. Department of Education (ED) will launch a mobile-friendly version of the website that provides access to the Free Application for Federal Student Aid (FAFSA) this week, allowing students and parents to more easily fill out the application on smartphones and tablet devices.

ED is also working to finish designing a mobile app on which students and parents would be able to fill out the FAFSA, complete other financial aid tasks, and make loan payments.  ED plans to launch the full app on October 1st so that it can be used for the 2019-2020 federal student aid year, but an early version will be released next month, before the fully functional app becomes available.

Both actions are part of a larger overhaul and update of financial aid services at ED, known as NextGen, which is aimed at improving customer service for borrowers, as well as bringing the financial aid experience up to date with new technology.

“The launch of the myStudentAid app later this summer is critical in creating a consistent mobile-first, mobile-complete, mobile-continuous experience for Federal Student Aid’s customers,” said A. Wayne Johnson, the chief strategy and transformation officer at the Office of Federal Student Aid.

Resources:

Andrew Kreighbaum, “Education Department to Begin Rollout of Mobile Student Aid Application,” Inside Higher Ed, July 24, 2018.

Author: KSC

OMB Asks for Input on Government Effectiveness

As part of its strategy to overhaul the federal government, the U.S. Office of Management and Budget (OMB) has asked for public input on a proposal to establish a “Government Effectiveness Advanced Research Center,” or GEAR Center.  This center would be a partnership between the federal government and private entities focusing on identifying and finding ways to apply research that improves the delivery of services and stewardship of public resources as promoted in that reorganization plan.  The group would look at “operational and strategic challenges” in government services with the help of researchers, academics, and non-profits.  It would then create pilot testing for new proposals.

Potential areas of improvement include data and services development, reforming core processes like federal procurement and budget, developing and “redeploying” public sector employees.  But while the federal government says it will provide “seed funding” for the GEAR center, OMB does not expect to be involved with its work or management in the long-term.

The OMB has asked for suggestions regarding the strategy and objectives of the GEAR center, its areas of practice, the governance and operational structure, and what sectors or stakeholders should be involved.  The agency also asks for suggestions of how to identify “sustainable funding approaches” or “market incentives” to operate the Center in the long-term.  The request for information (RFI) does imply one potential source of funding when it notes that the Center expects to focus on “how federally owned data could help transform society and grow the economy” – possibly leading to a source of revenue, but also to concerns from data privacy experts.

“The inability to adapt has likely contributed to the federal government’s failures to meet expectations and resulted in less than optimal use of resources,” the RFI states.  “Moreover, the government’s reliance on outdated technology has led to a workforce insufficiently equipped to transition to more modern ways of doing business.”

The RFI is available here; it also notes that OMB anticipates holding a conference on these issues before moving forward.  Comments are due by September 14th.

Author: JCM

Appeals Court Rules on ADA Claim from After-School Teacher

The United States Court of Appeals for the District of Columbia Circuit ruled this week on a case initiated by a disabled after-school teacher against his employer, Associates for Renewal in Education (ARE).  The plaintiff, Brian Hill, who is a single-leg amputee, argued that ARE failed to accommodate his disability and that the failure to accommodate created a hostile work environment.

Based on a trial decision, Hill was awarded damages for ARE’s failure to accommodate his disability by refusing requests for him to teach on a lower floor of the building, which has no elevator.  On appeal, after the District Court granted partial summary judgement, were two other issues: whether ARE failed to accommodate Hill’s disability by not providing him with a classroom aide and whether ARE’s failures to accommodate Hill’s disability created a hostile work environment.

On the second issue, the Court determined that there was not sufficient evidence of a hostile work environment.  The Court states that Hill did not demonstrate that “his employer subjected him to ‘discriminatory intimidation, ridicule, and insult . . . sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment,” which is the legal standard for determining whether a work environment is hostile.

On Hill’s failure to accommodate claim under the Americans with Disabilities Act (ADA), the Court found that ARE’s argument that “Hill did not need the accommodation of a classroom aide because he could perform the essential functions of his job without accommodation, ‘but not without pain,’” does not hold.  In addition, the Court states that “Hill sufficiently alleged a connection between his disability and the assistance a classroom aide could provide while Hill supervised his students to present a triable issue of fact” and that a reasonable jury could have concluded that a classroom aide would have been a reasonable accommodation for Hill.  For those reasons, the Court rules that the case be sent back to trial court for further proceedings.

U.S. Supreme Court nominee Brett Kavanaugh was a member of the Court’s panel at the time the case was argued but did not participate in the opinion.

The full opinion for the case is available here.

Author: KSC

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 2018

Contributors: Julia Martin, Steven Spillan, Kelly Christiansen

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