Federal Update: April 24, 2020 - Government Affairs (CA ...



From:Michael Brustein, Julia Martin, Steven Spillan, Kelly ChristiansenRe:Federal UpdateDate:April 24, 2020The Federal Update for April 24, 2020 TOC \o "1-3" \h \z \u Legislation and Guidance PAGEREF _Toc38623058 \h 1ED Releases Elementary and Secondary Education Relief Funds PAGEREF _Toc38623059 \h 1Congress Approves Additional COVID-19 Funding PAGEREF _Toc38623060 \h 2Additional Higher Ed CARES Act Funding Released PAGEREF _Toc38623061 \h 3News PAGEREF _Toc38623062 \h 4Murphy, Cassidy Outline Principles for IDEA During School Closures PAGEREF _Toc38623063 \h 4Court Says Children Have “Fundamental Right” to Education PAGEREF _Toc38623064 \h 4SCOTUS Won’t Hear Superintendent Whistleblower Case PAGEREF _Toc38623065 \h 5Reports PAGEREF _Toc38623066 \h 6GAO Flags Issues with Restraint and Seclusion Data PAGEREF _Toc38623067 \h 6 Legislation and Guidance ED Releases Elementary and Secondary Education Relief FundsThe U.S. Department of Education (ED) on Thursday afternoon released the application for emergency relief funding to State and local educational agencies. The Elementary and Secondary School Education Relief Fund (ESSER) was passed into law as part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act last month. ED staff told participants in a public call that funds could be used to reimburse expenses incurred on or after March 13th, the date when a federal disaster was declared. The agency also committed to obligate funds within three days of State applications being approved. The application promised to be extremely streamlined and stick closely to the statutory language in the CARES Act, giving States and districts broad discretion as to how funds should be spent within the parameters of the fund (under the CARES Act, funds can be used for any purpose under the Elementary and Secondary Education Act, Individuals with Disabilities Education Act, Perkins Act, Adult Education and Family Literacy Act, or for other expenses related to maintaining operations and continuity of services).Notably, States are asked to make some assurances about paying staff and contractors. As under the CARES Act, the application instructs States and districts to pay employees and contractors to the greatest extent practicable. However, this document acknowledges that what is practicable will be “based on the unique financial circumstances of the entity.” The assurances also say that executive salaries and benefits outside the State or local educational agency are generally not allowed, nor are bonuses or merit pay. ED has added a prohibition not indicated in the CARES Act, stating that teacher or faculty union or association member fees are generally not allowable either.ED has asked the State to report on any information it requests from local educational agencies (LEAs) on how the district will determine its most important educational needs, its timeline for providing services, and its plan for remote learning and addressing learning gaps resulting from educational disruption. States must report to the Secretary within 60 days on their plans for spending their State-level funds (10 percent of the total grant) and an internal controls and subrecipient monitoring plan. ED also asks for any information States gather on how districts plan to use funding for remote learning and technology. States will be asked to submit quarterly reports to the Secretary of Education on their spending, must allocate all money to LEAs within one year, and must provide technical assistance to districts on the use of funds for remote learning. ED staff have indicated that they will issue a frequently asked questions document regarding common fiscal issues, like questions of allocation. They also said that guidance on equitable services requirements of the CARES Act – funds allocated to local educational agencies (LEAs) are subject to equitable services as under Section 1117 of the Elementary and Secondary Education Act – will be forthcoming.The ESSER application and related documents are available here.Author: JCMCongress Approves Additional COVID-19 FundingCongress approved a new $484 billion coronavirus relief bill this week, focusing this round of funding on small business, hospitals, and increased testing.? The measure passed the house by a vote of 388-5 after passing the Senate by a voice vote earlier in the week.? President Trump signed the bill this afternoon, the fourth in a series of coronavirus relief bills in less than two months, totaling $2.7 trillion in federal funds to fight the pandemic.The bill will provide an immediate $321 billion infusion for the Paycheck Protection Program, which ran out of money last week, as well as another $60 billion in economic disaster loans for small businesses, $75 billion in emergency relief for hospitals and $25 billion to increase COVID-19 testing.? The bill does not include any additional funds for education, though the U.S. Department of Education is still working on issuing funding already approved for schools and educational agencies.Most of the nearly $14 billion in funding dedicated for higher education under the Coronavirus Aid, Relief, and Economic Security (CARES) Act is allocated to colleges and universities based on a formula in the law. Colleges are entitled to a share of the funding based on the number of students they enroll, heavily weighted toward low-income Pell Grant recipients.? Some ivy-league colleges made headlines this week when the President and Secretary Betsy DeVos suggested they should decline and/or return any funding they received for emergency financial aid grants for students.? During a press briefing with Treasury Secretary Steve Mnuchin, President Trump told reporters he would be asking Harvard University to return any stimulus funding they received, since the institution has a large endowment that many other institutions of higher education (IHEs) do not.Secretary DeVos then went on to say the nation’s wealthiest universities should turn down federal stimulus cash from her agency amid a growing backlash to schools with multibillion-dollar endowments getting a slice of the $2 trillion rescue package.? Stanford University on Wednesday announced that it would reject more than $7 million in stimulus funds, saying it wanted to help keep smaller schools in business. Princeton and Harvard released similar announcements shortly thereafter.? DeVos went on to praise these actions, calling on others to follow suit, saying, “if you determine that your institution’s students do not have significant financial need at this time, I would ask that you consider giving your allocation to those institutions within your state or region that might have significant need.”Resources:Michael Stratford. “DeVos Urges Wealthy Colleges to Give Up Their Coronavirus Aid,”?Politico, April 22, 2020.Heather Caygle and Sarah Ferris, “House Passes $484 Billion Relief Package After Weeks of Partisan Battles,”?Politico, April 23, 2020.Author: SASAdditional Higher Ed CARES Act Funding ReleasedThe U.S. Department of Education (ED) announced Tuesday that it will begin releasing additional funds to institutions of higher education (IHEs) as authorized by the Coronavirus, Aid, Relief, and Economic Security (CARES) Act. ED has already opened applications for a portion of the CARES Act higher education relief fund that is designated to flow to students in the form of emergency financial aid grants. The funding application and materials released this week are for the other half of the higher education funding, which is intended to assist IHEs with institutional-level “costs associated with significant changes to the delivery of instruction due to the coronavirus.” IHEs are permitted to use these funds flexibly for their COVID-19 response for costs including purchasing technology for students to participate in distance learning, training staff on using online learning platforms, reimbursement for refunds previously issued to students for costs like housing and meal plans, and other activities as appropriate. The institutional funds should not be used for executive and senior administrator salaries, and IHEs can use the funds to reimburse themselves for allowable costs incurred on or after March 13th. IHEs may also use these institutional-level funds to provide additional emergency financial aid grants to students, but any funds used for that purpose will be subject to the terms and conditions for the emergency financial aid grant funding. In addition, for IHEs to begin accessing their institutional funds, they are required to first have entered into the funding certification and agreement for Emergency Financial Aid Grants to Students. As of Tuesday, only approximately half of eligible IHEs had submitted applications for those funds. IHEs can access the application, funding assurances, and frequently asked questions for the institutional relief funds here.Author: KSCNews Murphy, Cassidy Outline Principles for IDEA During School ClosuresTwo Senators released bipartisan principles Tuesday on how students with disabilities should be supported and served during pandemic-related school closures. Senators Chris Murphy (D-CT) and Bill Cassidy (R-LA) say that these principles should form the basis of legislative language included in the next COVID-19 stimulus package. According to a statement from the senators, the principles “acknowledge that States and school districts will need some flexibility regarding timelines during this crisis.” “But our principles also underscore the need to maintain the core protections of IDEA and the need for Congress to provide specific funding to support students with disabilities.”The two emphasize the need to preserve “the right to a free and appropriate public education (FAPE) for students with disabilities through the closures” and the ability to address any learning loss through “creative remedies” once schools reopen. They encourage schools and districts to “engage parents” in the process and preserve due process rights, while ensuring that any timeline flexibilities are “narrow, targeted, and temporary.” In addition, they encourage Congress and the U.S. Department of Education to “maintain oversight and accountability functions” and “communicate clearly” regarding current flexibilities and concerns. Finally, they say that Congress must provide “necessary supplemental funding” in order to maintain learning. These principles were included in a letter to Secretary of Education Betsy DeVos asking her to provide additional guidance to clarify how schools and districts should meet the needs of those students during closures.The principles document is here; the letter from Murphy and Cassidy to DeVos is here.Author: JCMCourt Says Children Have “Fundamental Right” to EducationIn a split decision, a federal appeals court ruled Thursday that children have a constitutional right to an education that provides at least “foundational” literacy skills. Plaintiffs claim that under the leadership of former Governor Rick Snyder, the Michigan Board of Education neglected students’ constitutional rights and underfunded Detroit’s public schools for decades.A class action lawsuit filed on behalf of students argued that a lack of certified teachers, books, school supplies, and quality curricula led to poor reading skills. The majority opinion said that while the Supreme Court has never ruled on the importance of education as a constitutional right, the Court has discussed it, so following that precedent and applying a due process analysis, the appeals court came to its decision.? However, they also say that this decision should be “narrow in scope.”? “It does not guarantee an education at the quality that most have come to expect in today’s America (but that many are nevertheless denied),” the panel's majority opinion said. “Rather, the right only guarantees the education needed to provide access to skills that are essential for the basic exercise of other fundamental rights and liberties, most importantly participation in our political system.”? It would be impossible to participate in democracy, the decision argues, without the ability to read and write.?The minority opinion argued that the Court was not empowered to rule on educational quality disputes, at least in part because of separation of powers.? Snyder is no longer Michigan’s Governor, and the State has not yet announced whether it will appeal to the U.S. Supreme Court.Resources:Juan Perez, Jr. “Appeals Court Says Education is a ‘Fundamental Right’ in Landmark Detroit Case,”?Politico,?April 23, 2020.John Wisely, “Appeals Court Finds Constitutional Right to Literacy for Schoolchildren in Detroit Case,”?Detroit Free Press, April 23, 2020.Author: JCMSCOTUS Won’t Hear Superintendent Whistleblower Case The U.S. Supreme Court has determined it will not hear a case appealed by a New York school superintendent who claims he was fired for reporting corruption in his district to appropriate law enforcement officials. After being hired in 2017, the superintendent in question hired an outside firm to identify incidents of corruption as an attempt to reform practices in the district. The superintendent reported some incidents found by the outside firm to law enforcement, after which the school board placed him on administrative leave. He sued under the basis that his free speech rights and due-process rights were violated. Lower courts ruled against the superintendent, determining that his free speech rights about the operations of the district were a part of his official duties and thus not protected under the First Amendment. The Supreme Court justices declined to review the case this week without any comment. Resources:Mark Walsh, “Supreme Court Declines Superintendent’s Case on Reporting Corruption,” Education Week: School Law Blog, April 20, 2020.Author: KSCReportsGAO Flags Issues with Restraint and Seclusion DataIn a report published this week, the non-partisan Government Accountability Office (GAO) identified inaccuracies in the U.S. Department of Education’s (ED’s) collection of data on the number of incidences of restraint and seclusion in schools. GAO reviewed data submitted to the Civil Rights Data Collection (CRDC) for school year 2015-2016 – the most recent available. GAO argues that ED needs to improve its quality control over restraint and seclusion data reporting as the current processes are not effective enough to identify errors in data. One issue highlighted by GAO is ED’s lack of a process to flag and further examine any outliers in the data, which could help to identify underreporting or schools with exceptionally high rates of restraint and seclusion. In addition, ED’s current processes fail to acknowledge other red flags in data, such as schools that indicated more students were restrained or secluded than there were overall incidents of restraint and seclusion, as well as a high percentage of schools reporting zero incidents. The issue of schools reporting zero incidents was raised in a previous GAO report from June 2019, which found that many schools that simply did not have data on the number of incidents of restraint and seclusion reported zero in the CRDC. According to this week’s report, ED has taken limited steps to address the misreporting of zeros but has not fully implemented the GAO’s recommendations from June 2019. GAO also found confusion among school officials with regard to the definitions of restraint and seclusion, which could lead to inaccurate data being reported through the CRDC. Overall GAO concludes that “it is impossible to accurately determine the frequency and prevalence of restraint and seclusion among K-12 public school students.” GAO offers six recommendations to ED on how to improve its data collection and verification processes, which ED has agreed to implement. The full GAO report is available here. 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 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, Steven Spillan, Kelly Christiansen ................
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