Federal Update: August 21, 2020 - Government Affairs (CA ...
From:Michael Brustein, Julia Martin, Steven Spillan, Kelly ChristiansenRe:Federal UpdateDate:August 21, 2020The Federal Update for August 21, 2020 TOC \o "1-3" \h \z \u Legislation and Guidance PAGEREF _Toc48913308 \h 1Senate Republicans to Propose “Skinny” COVID-19 Relief Bill PAGEREF _Toc48913309 \h 1USDA Briefly Extends Key Child Nutrition Waivers PAGEREF _Toc48913310 \h 2News PAGEREF _Toc48913311 \h 3Stakeholders, Lawmakers Urge Extension on Child Nutrition Waivers PAGEREF _Toc48913312 \h 3New Lawsuit Says Equitable Services Rule Invalid PAGEREF _Toc48913313 \h 3NASP Requests Clarification from ED on IEPs During COVID-19 PAGEREF _Toc48913314 \h 4Congress is expected to pass a short-term continuing resolution next month after returning to regular session following the Labor Day recess, which will keep the government open and funded at current levels while full fiscal year 2021 appropriations negotiations are finalized. Legislation and Guidance Senate Republicans to Propose “Skinny” COVID-19 Relief BillAfter failed negotiations between Congress and the White House on the next round of COVID-19 relief, Senate Republicans are reportedly planning to introduce a pared down version of their original legislation. The so-called “skinny” COVID-19 relief bill would only have a total cost of $500 million, or half of the Senate’s HEALS Act, which was released late last month.The new legislation, which has not officially been introduced, would expand unemployment benefits until December 27th, providing an additional $300 per week to participants, and provide additional funding for the Paycheck Protection Program and $10 billion for the U.S. Postal Service. In addition, the bill is expected to include $70 billion for education – the same amount included in the original Senate bill – and would keep provisions that tie two-thirds of that funding to schools reopening for some level of in-person instruction. Those provisions, however, are a nonstarter for Democrats. Some Senate Republicans have said that the new legislation could be attached to a fiscal year 2021 funding bill. Congress is expected to pass a short-term bill, or continuing resolution, to keep the government open and funded past September 30th. With larger negotiations at a standstill on COVID-19 relief, a smaller piece of legislation may gain approval if attached to the anticipated continuing resolution. Democrats and Republicans, however, are still far apart in agreeing on priorities to be included in any COVID-19 relief bill, which could cause further delays on legislation whether it be a full relief package or a smaller version. Resources:Andrew Ujifusa, “GOP Still Conditions School Aid on Reopening Buildings in New Draft Aid Bill,” Education Week: Politics K-12, August 18, 2020. Marianne Levine, “Senate Republicans to Introduce Smaller Covid Package that Includes Billions for Postal Service,” Politico, August 17, 2020.Author: KSCUSDA Briefly Extends Key Child Nutrition WaiversOn Thursday afternoon the U.S. Department of Agriculture (USDA) issued notices to States that it will extend four waivers of child nutrition requirements through September 30, 2020.? These waivers include one which will allow for “non-congregate feeding” – that is, allowing students to eat reimbursable meals in separate locations or at different times – another which will allow for flexibility in the “meal pattern” of meals served, another that would allow parents and guardians to continue to pick up meals without their children present, and another allowing States to offer the Summer Food Service Program more broadly and in more areas.? Taken together these waivers will allow States and school food entities to continue the more flexible meal service they have been offering since the pandemic closed schools in March until school starts – which is after Labor Day in many districts.Advocacy organizations have asked USDA to extend the waivers for the full 2020-21 school year, but USDA has said in the past that they want to follow district leadership in terms of decision-making and not get ahead of what schools need.? The fact that this extension is being offered may demonstrate that a longer-term extension is on the horizon if circumstances dictate it.The waiver memoranda are available here:Non-Congregate feedingMeal pattern flexibilityArea eligibility for summer food service programParent and guardian meal pickupAuthor: JCMNews Stakeholders, Lawmakers Urge Extension on Child Nutrition WaiversThe School Superintendents Association (AASA) and 33 other stakeholder organizations recently submitted a letter to the Chairmen and Ranking Members of the House and Senate committees with jurisdiction over child nutrition matters requesting that Congress authorize an extension of COVID-19 waivers for school nutrition programs through school year 2020-2021. This week, the U.S. Department of Agriculture (USDA) extended certain waivers only through the end of September 2020. With many schools beginning the school year using remote instruction completely or partially, the letter notes that children will face hardship with accessing nutritious meals if current flexibilities are not extended. Some school nutrition waivers were set to expire on August 31st without the one-month extension from USDA issued this week. The organizations are specifically requesting the following flexibilities to be authorized or extended through June 30, 2021:Allow summer child nutrition programs to be used to feed children through the upcoming school year; Expand the non-congregate waiver to include summer food programs;Extend the area eligibility waiver for summer food programs to enable districts to operate food services in communities that did not meet the 50 percent free and reduced-price lunch area eligibility threshold;Waive the activity requirement for the Afterschool Meal and Snack Programs;Enable districts providing meals through summer food programs to use the Afterschool Meal and Snack Programs; andExtend the Fresh Fruit and Vegetables Programs flexibilities and waivers. In addition to the stakeholder letter sent to Congress this week, Congressional delegations from Massachusetts and Maryland have written to USDA officials, including Secretary of Agriculture Sonny Perdue and Deputy Under Secretary Brandon Lipps, urging USDA to extend a number of flexibilities and waivers through school year 2020-2021 and to issue waivers for requests previously submitted by States. The AASA letter is here; the Massachusetts letter is here; and the Maryland letter is here.Author: KSCNew Lawsuit Says Equitable Services Rule InvalidThe group known as the Council of Parent Attorneys and Advocates (COPAA) filed a lawsuit earlier this month against the U.S. Department of Education (ED) and Secretary of Education Betsy DeVos. In the complaint, the group alleges that the rule on providing equitable services to private schools under the Coronavirus Aid, Relief, and Economic Security (CARES) Act will disproportionately disadvantage low-income and minority students and students with disabilities. The interim final rule published in July asks districts to choose between calculating the proportionate share of services to private schools based on total enrollment of both public and private schools, or based on the number of low-income students in each private school – but, if they choose the latter, they must serve only Title I schools with CARES Act funds, and districts are warned that this distribution may throw off their State and local supplement, not supplant calculations.The group notes that private schools are eligible for other sources of aid under the CARES Act, including the Payroll Protection Program (PPP). They claim that under the option that ED has set up to be the “default” choice, and which comes with fewer restrictions under the regulations, private schools will end up with between $4.3 and $8.1 billion in aid, compared to $14.1 billion for public schools, despite the fact the private schools enroll only about 10 percent of the nation’s students. This, they say in a press release, amounts to “stealing from the poor to give to the rich,” contrary to Congressional intent.If districts choose an option to calculate the proportionate share of services going to private schools that is based on the number of low-income students attending various private schools, the lawsuit says, ED imputes additional restrictions from a different section of ESEA than the one the CARES Act references. The lawsuit states that these restrictions are “unlawful” as well as “arbitrary and unreasonable,” and coerce districts into using an enrollment-based allocation.Finally, the group notes that the supplement, not supplant requirement imputed by ED in its rule requires that a school “receive the State and local funds necessary to provide services required by law for children with disabilities and English learners,” implying that CARES Act money may not be used for services for children with disabilities – despite the fact that this is an allowable use of funds explicitly listed in the statute.This is the fourth lawsuit that has been filed against the rule in federal courts, and joins a multi-State case and one from Washington State currently in progress, as well as a challenge brought by the National Association for the Advancement of Colored People (NAACP). A copy of the complaint is available here.Author: JCMNASP Requests Clarification from ED on IEPs During COVID-19The National Association of School Psychologists (NASP) sent a letter on behalf of its members to Secretary of Education Betsy DeVos seeking information on addressing practical concerns in implementing Individuals with Disabilities Education Act (IDEA) requirements during the COVID-19 pandemic. The letter notes that its members reached out to the organization seeking advice on the timelines and specific mandates in IDEA in response to the drastic interruptions caused by the pandemic. As school districts struggle to cope with the effects of the COVID-19 pandemic, special education educators and students, in particular, recognize the difficulties of remote learning and its administration. Specifically, NASP members requested information on initial evaluations and reevaluations; IEP goals and service delivery minutes; and discipline. To be eligible for special education services under IDEA, a child must first be identified as possibly needing a special education and then be evaluated. Parents may request an evaluation or the school system may recommend that the child be evaluated. If the school system makes such a recommendation, it must receive consent from the parents and the evaluation must be completed within 60 days of the parent giving consent. After the initial evaluation, evaluations must be conducted at least every three years after the child has been placed in special education. Informed parental consent is also necessary for these reevaluations. Considering IDEA’s emphasis on evaluations and timelines, the letter asks the Secretary a number of clarifying questions on timelines, such as how are “school days” calculated when using remote learning and whether in-person evaluations should be offered when schools are only using remote learning. After the evaluation, a school will have an eligibility meeting to decide if the child qualifies for special education. If so, a team will develop an Individualized Education Program (IEP) that spells out the child’s educational goals and the services and support the school will provide. Given IDEA’s many requirements for developing an IEP, the letter asks the Secretary to provide additional information on the IEP process during COVID-19, including how to calculate IEP minutes when schools are using hybrid models, and how to meet the needs of students when certain services cannot be delivered remotely, among other items.Lastly, the letter sought information on how to address discipline of special education students during COVID by asking for clarification on when a change in placement occurs, such as when students with disabilities receive suspension from in-person learning and then receive remote instruction at home during the suspension and continue to receive related services. Author: ASBBrustein & Manasevit, PLLC will host a virtual training on September 1st covering the recent final changes to the Uniform Grants Guidance. To view all upcoming virtual training topics and to register, visit 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 2020Contributors: Julia Martin, Kelly Christiansen, Andrew BallPosted by the California Department of Education, August 2020 ................
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