OAASFEP April 2014 Latest Developments in Washington

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

2. Federal Legislative Update

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

4. State of Congress

5. Congressional Approval • < Source: PPP Poll, October 2013

6. What does this mean to Congress? • Political angling on rareissues that are seeing some activity • “sacred cows” fair game • Rapidly accelerating retirements/electoral turnover • Short term (one-cycle) fixes to problems • Constant crisis

7. 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

8. 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

9. Omnibus 2014 (in millions of dollars)

10. Omnibus 2014 • 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) • Winners • 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

11. 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”

12. 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)

13. 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

14. 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

15. ESEA: Overall Consensus: reauthorization will wait until 2015 or later S.S. House ESEA S.S. Senate

16. National Waivers Update

17. 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

18. 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

19. 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

20. 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

21. 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

22. Administration Weighs in on Disparate Discipline Joint ED DOJ Letter, January 8, 2014 • Discipline: • Administration encourages policies that are fair and avoid disparate impact • Impact high rates of suspension / expulsion • Disparate 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 2014-2015 with eligible schools

26. Community Eligible Option • Eligible School • 40% students certified-free meals through means other than household application SNAP / 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 disadvantaged All students • Eligibility based on poverty: All students

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

30. 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

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

32. 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.

33. 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

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

35. 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.

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 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.

38. 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.

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 provisions • print or save the terms of service • limit 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 Review • Increase Efficiency • Strengthen Oversight

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

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

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