Federal Update: January 22, 2021 - Government Affairs (CA ...



From:Michael Brustein, Julia Martin, Steven Spillan, Kelly ChristiansenRe:Federal UpdateDate:January 22, 2021The Federal Update for January 22, 2021 TOC \o "1-3" \h \z \u Legislation and Guidance PAGEREF _Toc62212729 \h 1President Biden Issues Several Sweeping EOs in First Days PAGEREF _Toc62212730 \h 1Executive Order Protects Against Gender Discrimination PAGEREF _Toc62212731 \h 2New Executive Actions Seek to Help Schools Reopen PAGEREF _Toc62212732 \h 3ED Issues New FAQ for Private School Grants PAGEREF _Toc62212733 \h 4Addendum to English Learner Fact Sheet Published PAGEREF _Toc62212734 \h 5ED Releases Final COVID-19 FAQ on ESEA Accountability PAGEREF _Toc62212735 \h 6News PAGEREF _Toc62212736 \h 7CISA Kickstarts Education Ransomware Campaign PAGEREF _Toc62212737 \h 7Legislation and Guidance President Biden Issues Several Sweeping EOs in First DaysNewly-inaugurated President Joe Biden issued a number of wide-ranging executive orders his first days in office, unwinding policies from the prior administration and instituting new policies.The President extended the moratorium on student loan payments and interest accrual through September 30th of this year to provide relief to borrowers facing financial challenges due to the pandemic. The pause had originally been extended only through the end of January. In addition, the President increased FEMA reimbursement for certain COVID-19 related costs to 100 percent. Last year, FEMA allowed funds to be used to reimburse costs related to responding to the pandemic, including personal protective equipment for schools, but FEMA later changed its policy, saying that COVID-19 costs were no longer considered “new” and therefore ineligible for full reimbursement. The change instituted by President Biden opens more funding for PPE and will help with his goal of reopening schools. Although the 1776 Commission released its final report on Monday on “patriotic education,” the President dismantled the Commission as one of his first actions. The Trump administration’s executive order banning certain types of diversity training has also been rescinded and replaced with a new executive order “On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government,” which establishes an overarching policy goal for racial equity across the government. It also directs agencies to examine whether any agency policies or actions create barriers for full participation by every eligible person.In addition, the President issued an order to “preserve and fortify” the Deferred Action for Childhood Arrivals program, which the Trump administration attempted to dismantle but was often met with court challenges. Finally, President Biden issued a freeze temporarily halting implementation of regulations to give the new administration time to review pending regulatory actions. The freeze applies to rules sent to the Office of Management and Budget (OMB) for approval but not yet published, as well as already-published final rules that have not yet taken effect. OMB published a memorandum on Thursday regarding the new executive order, which recommends agencies postpone the effective date of any eligible rules by 60 days and allow for a new 30-day public comment period. For rules that have already been published but have not taken effect, OMB directs agencies to consider several factors when determining whether to delay the effective date of the rule, such as whether the rulemaking process was “procedurally adequate” and whether the rule “reflected proper consideration of all relevant facts,” among others. The memorandum also notes that the executive action includes a broad definition of “rule” and may include guidance documents as well. Agencies are directed to not issue any further rules until an agency head has been appointed and reviews and approves the regulatory action. Exceptions apply to the regulatory freeze for emergency-related rules, such as actions responding to the COVID-19 pandemic.A separate executive order on Thursday directs the Office of Management and Budget to produce a set of recommendations on how to modernize and improve the regulatory review system.Resources: Michael Stratford, “Biden to Launch Federal Effort to Track School Closures, Open Up FEMA Funding for Masks,” Politico, January 21, 2021.Author: KSCExecutive Order Protects Against Gender DiscriminationAn Executive Order issued Wednesday evening by President Biden seeks to protect individuals against discrimination on the basis of their gender identity. The order explicitly calls out students at schools, saying that “[c]hildren should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports.”The order bases its arguments on Constitutional equal protection principles as well as the Civil Rights Act of 1964. But more recently, it points to the Supreme Court’s decision in Bostock v. Clayton County, which held that discrimination on the basis of sex includes conduct on the basis of gender identity and sexual orientation. Though the Supreme Court had limited its holding to the context at issue – employment law – the Executive Order says that any laws that prohibit sex discrimination should also be read to prohibit discrimination on the basis of gender identity “so long as the laws do not contain sufficient indications to the contrary.”“It is the policy of my Administration to prevent and combat?discrimination on the basis of gender identity or sexual orientation, and to fully enforce Title VII and other laws that prohibit discrimination on the basis of gender identity or sexual orientation,” the Executive Order reads.? The text notes that many individuals face multiple forms of discrimination because of race or disability, for example, as well as gender identity and sexual orientation. “It is also the policy of my Administration to address overlapping forms of discrimination,” the order says.Each agency is instructed to “as soon as practicable and in consultation with the Attorney General” review all existing orders, regulations, guidance documents, policies, programs, and other agency actions and revise, suspend, or rescind those inconsistent with the order. Agency heads are also instructed within 100 days to develop a plan to carry out rescissions and other action that might be needed to “fully implement” the new policy.This is expected to impact a number of policies at the U.S. Department of Education – most recently a January 8th memo to the Office for Civil Rights (OCR) which said that Bostock’s precedent did not apply to education cases under Title IX of the Education Amendments of 1972. Under this new executive order, that memo will almost certainly be rescinded and OCR staff and others would be required to apply Title IX protections to issues of gender identity. It is not yet clear whether OCR investigators would review or revise previous decisions that incorporated the prior administration’s assertion that gender identity was not part of Title IX protections. This move could also impact pending federal court cases on the issue.The full executive order is available here.Author: JCMNew Executive Actions Seek to Help Schools ReopenPresident Biden signed additional Executive Orders Thursday aimed at returning to pre-pandemic life – including reopening schools. These include creating a Pandemic Testing Board to increase capacity for coronavirus tests, including within schools, and leaning on federal agencies to create new occupational guidelines for workforce safety. The orders also direct the U.S. Departments of Education and Health and Human Services to issue guidance to help schools, child-care providers, and higher education institutions operate safely. The two agencies together would develop a “Safer Schools and Campus Best Practices” clearinghouse to provide guidance on reopening and day-to-day operations. New Centers for Disease Control (CDC) Director Rochelle Walensky has also sent a memo to agency staff asking for a comprehensive review of existing guidance.Additionally, the President’s plan would call for use of the Defense Production Act, which allows the government to boost manufacturing during national emergencies. These powers could be used to expedite vaccine and packaging production, as well as Personal Protective Equipment (PPE).In addition, the Executive Orders ask the Institute of Education Sciences to collect data needed to understand the full impact of the pandemic on students and teachers, disaggregated by student demographics, and to consult with individuals on challenges posed by school closures including students, teachers, unions, families, and members of civil rights organizations. The Federal Communications Commission is “encouraged” to increase connectivity options for students.Many of the actions would require more funding to be implemented effectively, which means approval from Congress. President Biden has said his goal is to “get a majority of K-8 schools safely open” in the first 100 days of his administration.The full strategy document is here.Resources:Amy Goldstein, Isaac Stanley-Becker and Laura Meckler, “Biden Issuing Pandemic Plan that Aims to Expand Access to Testing and Vaccines, Reopen Schools,” Washington Post, January 21, 2021.“Biden Launches New Strategy to Combat COVID-19, Reopen Schools,” Education Week: Politics K-12, January 21, 2021.Author: JCMED Issues New FAQ for Private School GrantsLate last week, the U.S. Department of Education (ED) published a new Frequently Asked Questions (FAQs) document regarding assistance to non-public schools under the recently-passed Coronavirus Response and Relief Supplemental Appropriations Act (CRRSA). The document outlines the statutory principles underlying the grant, referred to throughout as EANS.Notably, the document states that “[b]ecause the CRRSA Act includes a separate EANS program for which eligible non-public schools may apply to an SEA to receive services or assistance, a local educational agency… is not required to provide equitable services to students and teachers in non-public schools” under CRRSA (though it notes that obligations under the previous relief bill remain unchanged).The FAQs say that ED used Census and American Community Survey poverty data to determine State-by-State allocations. Governors must proactively apply for the grant but ED says that it is committing to making awards within one day of receiving the certification and agreement from each State. Though the Governor is technically the grantee and, ED asserts, is “responsible for oversight,” the State educational agency (SEA) is responsible for administering the grant.Among those responsibilities are distributing information and applications, approving and denying applications in a timely manner, determining what services to provide (as informed by applications), and ensuring that services meet some safeguards, like remaining secular, neutral, and nonideological and keeping funds in the control of a public entity – a task which includes administering funds, services, assistance, materials, equipment, and property.Though consultation is not required under EANS, it is strongly encouraged by ED. The guidance also offers some suggestions for how to ensure that information can be exchanged rapidly between States and private schools and what kind of data might be used by the State and school to determine relative poverty. Funds must be obligated – committed to a specific service or work in writing – within six months of receipt by the SEA or they will go the Governor to be reallocated for other purposes.The guidance notes that schools must be non-profit and have been in existence as of March 13, 2020 to be eligible for assistance. Schools that received a Paycheck Protection Program (PPP) loan as of December 27, 2020 are not eligible for EANS grants.Finally, the guidance explains the allowable services as expressed in the statute, and which expenditures might be available for reimbursement. It notes that while an SEA may contract with a third party – including a local educational agency or an educational service agency – to provide specific services, EANS funds are not available for subgrants.The FAQs document on EANs is available here.Author: JCMAddendum to English Learner Fact Sheet PublishedEarlier this week, the U.S. Department of Education (ED) released an addendum to the May 2020 COVID-19 fact sheet on English learner (EL) assessments. The addendum answers several frequently asked questions by State (SEAs) and local educational agencies (LEAs) regarding the annual English language proficiency (ELP) assessment and flexibilities for Statewide entrance and exit procedures for the 2020-2021 school year.The addendum answers whether SEAs still need to administer the annual ELP assessment required by Title I of the Elementary and Secondary Education Act (ESEA), what flexibilities are available, and if SEAs may continue to use modified temporary entrance and exit procedures. The addendum states that ED still expects each SEA to administer its ELP assessment, however, SEAs have discretion in terms of how and when they conduct the assessment. Citing a September 2020 letter to chief State school officers, the addendum highlights how data gathered from assessments are an integral and indispensable component to ensuring students receive appropriate support and achieve progress. Such data provides useful information for districts, teachers, and parents.Regarding inquiries on ELP assessment flexibilities, the addendum reminds school leaders that there are no prescribed federal timelines for the annual assessment. Therefore, SEAs may change the “testing window” to accommodate challenges caused by the pandemic but they should strive to have it completed as soon as safely possible. The addendum also reminds readers that, under ESEA, SEAs have the discretion to administer the ELP assessment remotely or in person. ED encourages SEAs to consider the health and safety of their students and staff and follow the guidance of local health officials.The addendum also states that SEAs may continue to use their adjusted Statewide entrance procedures until their LEAs can administer their regular screening assessments. SEAs must provide Statewide communication and documentation of any changes to their entrance procedures and must continue to follow relevant statutory provisions, such as requiring screening for possible EL students within 30 days of enrollment. Finally, for SEAs that have exit procedure requirements in addition to the Statewide ELP assessment, ED extends the flexibility from the May 2020 fact sheet allowing those SEAs to base exit decisions solely on the ELP assessment. However, all SEAs must continue to rely on a score of proficient on the Statewide ELP assessment in order to exit a student from EL status.A copy of the addendum can be found here.A copy of the fact sheet can be found here.Author: ASBED Releases Final COVID-19 FAQ on ESEA AccountabilityThe U.S. Department of Education (ED) sent a letter to chief State school officers this week providing a final frequently asked questions (FAQs) document on the impact of COVID-19 on accountability systems under the Elementary and Secondary Education Act (ESEA). A draft version of the document was released in October 2020 for public comment.Two notable changes were made from the draft version of the FAQs. ED clarified that although it is encouraging States to submit State plan addendums for any accountability system changes by February 1, 2021, States may submit addendums after that date as well. In addition, ED is allowing State educational agencies to request a waiver of the ESEA Title I requirement to identify targeted support and improvement schools in fall 2021 based on data from the 2020-2021 school year. Those waiver requests must be submitted through the process outlined in Section 8401 of ESEA, separate from the submission of State plan addendums.In addition to amendments to State plans related to accountability determinations data, States are also able to submit amendments to shift timelines forward by one year for identifying schools or meeting measurements of interim progress and long-term goals. SEAs can also submit amendments if they are unable to calculate their academic achievement indicator for fall 2021 as described in their State plan or their other academic, school quality, or school success indicators, and may make changes to their systems of annual meaningful differentiation. If States are unable to calculate their progress in achieving their English language proficiency indicator for the 2020-2021 school year, they may use an earlier year of data, submit a waiver request to measure attainment instead of progress for this school year, or adjust the remaining indicators in the Statewide system of annual meaningful differentiation to reflect that the SEA cannot calculate the indicator.Most modifications will be submitted through the State plan addendum process, but in some cases, requests must be submitted consistent with the waiver requirements under Section 8401. The FAQs notes which process must be used for each request. The FAQs on ESEA accountability during COVID-19 are available here.Author: KSCNewsCISA Kickstarts Education Ransomware CampaignThe Cybersecurity and Infrastructure Security Agency (CISA) kickstarted a campaign on Thursday to bring attention to the recent increase in cyber-attacks at schools and healthcare institutions. Many school districts have suffered ransomware attacks prior to and during the COVID-19 pandemic. With schools opting for virtual learning much of last year, the concern of cyber-attacks against educational institutions was heightened. CISA’s initiative, “Reduce the Risk of Ransomware Campaign,” will include education by CISA through its website and social media pages on how entities can best protect themselves from attacks. CISA has also launched a resource center that includes best practice guides for network administrators. Schools are particularly vulnerable to these attacks and risk the exposure of personal information of minors when facing a cyber-attack. CISA’s ransomware resource center is available here.Resources:Eric Geller, “CISA Focuses on Schools and COVID-19 Responders in New Ransomware Education Campaign,” Politico, January 21, 2021.Author: KSCTo stay up-to-date on new regulations and guidance from the U.S. Department of Education, register for one of Brustein & Manasevit’s upcoming virtual trainings. Topics cover a range of issues, including COVID-19 related issues, grants management, the Every Student Succeeds Act, special education, and more. To view all upcoming virtual training topics and to register, visit HYPERLINK "" \o "Brustein & Manasevit web page on Virtual Trainings"virtualtrainings/.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 2021Contributors: Julia Martin, Kelly Christiansen, Andrew BallPosted by the California Department of Education, January 2021 ................
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