Federal Update: March 12, 2021 - Government Affairs (CA ...
From:Michael Brustein, Julia Martin, Steven Spillan, Kelly ChristiansenRe:Federal UpdateDate:March 12, 2021The Federal Update for March 12, 2021 TOC \o "1-3" \h \z \u Legislation and Guidance PAGEREF _Toc66444695 \h 1Congress Passes $1.9 Trillion Stimulus PAGEREF _Toc66444696 \h 1USDA Extends Child Nutrition Waivers PAGEREF _Toc66444697 \h 2President Biden Directs Cardona to Review Title IX Regulation PAGEREF _Toc66444698 \h 3OMB Updates Circular A-123 Guidance on Payment Integrity PAGEREF _Toc66444699 \h 3News PAGEREF _Toc66444700 \h 4Lawmakers Ask ED to Expand Assessment Waivers PAGEREF _Toc66444701 \h 4Lawmakers Express Concerns about Impact of Pandemic on FAPE PAGEREF _Toc66444702 \h 5Legislation and Guidance Congress Passes $1.9 Trillion StimulusOn Wednesday morning the House of Representatives passed the American Rescue Plan Act (ARPA), clearing the way for the President’s signature on the legislation Thursday afternoon. The House vote was needed after several changes to the earlier draft were made in the Senate – including adjustments to the State-level set-asides and how school districts must plan for reopening.The law includes $180 billion for education funding – including $123 billion for another tranche of Elementary and Secondary School Education Relief Funds, $2.75 billion in additional Emergency Assistance to Non-Public Schools (EANS), $3 billion for a one-time boost to the Individuals with Disabilities Education Act (IDEA), and $800 million in targeted assistance to students experiencing homelessness. In the Higher Education sector, the bill contains almost $40 billion in additional funding through the Higher Education Emergency Relief Fund, of which at least 50 percent must go to student grants (100 percent in the case of proprietary institutions).K-12 funds will largely be allocated according to States’ and districts’ Title I allocations. States must send at least 90 percent of funds out in subgrants to districts and must spend at least 5 percent on mitigating learning loss, at least 1 percent on targeted summer enrichment activities, at least 2 percent on targeted afterschool enrichment activities, and are limited to not more than 0.5 percent in administrative costs. An amendment passed during the Senate debate requires districts to publicly post plans for reopening on their websites, ensuring adequate opportunity for public comment.Districts must use at least 20 percent of their funding to address learning loss but otherwise can spend funds under largely the same uses as in previous relief bills. Services to private schools will be provided by the State through another round of funding under the EANS program, but this time reimbursements will not be allowed – taking away a key method many States have used to spend down funds in the first round of the program. However, under EANS II there is no requirement to spend down funds within a 6-month period – whereas under EANS I, unspent funds are rolled over into a Governor’s fund, here States have a longer time to expend funds but must be returned to the federal treasury. States and districts will have to comply with a complicated new “maintenance of equity” requirement, which mandates continued amounts of funding to certain districts, and that high-poverty districts and schools not receive disproportionate reductions in funding (or, in the case of schools, to staffing).Funding to institutions of higher education would receive funding largely under the same terms and conditions as the previous stimulus, except that less funding would be available to proprietary institutions. Colleges would also have to show that they are spending a portion of funds to comply with applicable public health recommendations, and that they are counseling students whose financial circumstances have changed so that they may be able to apply for additional aid.Additionally, the bill includes money to prop up childcare providers, $350 billion to boost State and local budgets, and provides support for internet connectivity through the E-Rate program. And in a programmatic change, it prohibits proprietary institutions from counting GI Bill funds as non-federal dollars for the purposes of the 90/10 federal student aid rule.The President signed the legislation on Thursday. Author: JCMUSDA Extends Child Nutrition WaiversThe U.S. Department of Agriculture (USDA) announced this week that it is extending a group of COVID-related waivers issued for child nutrition programs through September of this year. The waivers, which allow schools to provide “grab and go” meals, had previously been authorized through the end of June. They were extended further to ensure children have access to meals over the summer. The waivers extended include allowing the Summer Food Service Program and the Summer Seamless Option to be available to all students, regardless of income status; permitting schools to serve meals outside of the mandated group settings and times; and allowing parents or guardians to pick up meals for their children without the child being present. In addition, parents and guardians may pick up meals for several days at one time, as opposed to having to visit a pick-up site every day. In the USDA press release announcing the extended waivers, Secretary of Agriculture Tom Vilsack said: “We will do everything we can to make sure children get access to healthy, nutritious meals regardless of their families’ financial circumstances.” States do not need to take any action in order to receive the waiver extension; it will be applied nationwide. Resources: United States Department of Agriculture Press Release, “USDA Extends Free Meals to Children through Summer 2021 Due to Pandemic,” March 9, 2021. Author: KSCPresident Biden Directs Cardona to Review Title IX RegulationPresident Joe Biden signed an executive order this week directing Secretary of Education Miguel Cardona to review the current Title IX regulation pertaining to sexual assault complaints and investigations to determine whether the rule should be revised or rescinded. The executive order states that all students are entitled to a learning environment free of discrimination based on sex, which includes “discrimination in the form of sexual harassment,” as well as discrimination based on sexual orientation or gender identity. The order goes on to direct the Secretary of Education to review all policies, guidance, rules, and other agency actions to ensure they align with the administration’s policy on sex discrimination. The Title IX rule promulgated under the previous administration is specifically mentioned as a regulation that should be reviewed for compliance with the administration’s policy and if found to not be in alignment, then the order directs the Secretary of Education to suspend, rescind, or revise the rule and issue new guidance. Although the executive order names the Title IX rule for reconsideration, this order applies more generally to include sex discrimination policies and guidance issued by the U.S. Department of Education and may lead to the issuance of new guidance on civil rights compliance areas such as accommodating transgender students based on gender identity. The Secretary of Education has 100 days from the issuance of the executive order to review the rule and present findings to the Director of the Office of Management and Budget, and the review shall be conducted in coordination with the Attorney General. The executive order is available here.Author: KSCOMB Updates Circular A-123 Guidance on Payment Integrity The Office of Management and Budget (OMB) issued a memorandum this week that includes an updated version of OMB Circular A-123 Appendix C, which addresses federal agency requirements for payment integrity. The appendix was last updated in June 2018, and the new version implements requirements under the Payment Integrity Information Act of 2019 (PIIA). The updated appendix makes changes to the payment integrity compliance framework to focus federal agencies’ work more on the prevention of improper payments in federal programs, as opposed to finding improper payments after they have occurred. Federal agencies are directed to classify their programs that have annual outlays more than $10 million into either “Phase 1 or Phase 2,” with Phase 1 being a program that is unlikely to “have an annual amount of improper payments (IP) plus an annual unknown payments (UP) above the statutory threshold,” while Phase 2 programs would be those that annually make improper payments plus unknown payments above the statutory threshold. Phase 2 programs will be subject to additional requirements, such as special reporting requirements. To help determine which phase the programs will fall into, federal agencies are required to conduct an improper payment risk assessment every three years for programs with more than $10 million in annual outlays, and programs in Phase 2 must determine the root cause of each improper payment and unknown payment. In addition, Phase 2 programs reporting estimates above the statutory threshold are required to have a corrective action plan in place to reduce the chance of improper and unknown payments. Inspectors general at each federal agency will continue to annually review agency payment integrity, including compliance with PIIA and the OMB guidance. The OMB memorandum and updated Appendix C is available here.Author: KSCNewsLawmakers Ask ED to Expand Assessment WaiversA number of Democratic lawmakers are asking Secretary of Education Miguel Cardona to expand assessment waivers and allow States to skip testing entirely this year. In a letter sent this week, Representatives Jamaal Bowman (D-NY), Ilhan Omar (D-MN), Tom Suozzi (D-NY), Mark Takano (D-CA), and Senators Ed Markey (D-MA) and Kristen Gillibrand (D-NY) have said that administering tests this year adds unnecessary stress for students and school systems.The letter-writers urge Cardona to “update federal guidance” to provide every State with a waiver of “all federal testing requirements for this school year.” Though they say they understand the need for data, the “harms will outweigh the benefits” in this case, and they cite colleges’ elimination of the requirement for applicants to provide SAT and ACT scores as precedent. Instead, they say federal and State governments should “invest in formative assessments” and use those resources to provide additional supports. In their letter, lawmakers also say they are concerned about the pressure on students – especially in the wake of evidence which shows that children’s mental health is suffering – and the resulting pressure on teachers to “teach to the test.” They ask for information about how the U.S. Department of Education will use any assessment results, how the agency intends to adjust for disparities and ensure that results are used properly given the shift, as well as how they will account for potentially inaccurate data.Author: JCMLawmakers Express Concerns about Impact of Pandemic on FAPEA group of Republican lawmakers wrote to various Congressional committee chairpersons this week asking for more rigorous oversight of efforts to get students with disabilities back in school. Representatives Steve Scalise (R-LA), James R. Comer (R-KY), Virginia Foxx (R-NC), and Cathy McMorris Rodgers (R-OR) signed the letter, which calls for an investigation to determine the effects that school closures have had on children with disabilities. The letter’s authors express a particular concern that distance learning has not been appropriately modified or supported for students with disabilities in a way that would provide them with the required “free and appropriate public education,” a concept known as FAPE.The committee members argue that State and district-wide policies that reduce services without making reasonable modifications are unacceptable under the Individuals with Disabilities Education Act (IDEA). The letter states that school districts are falling behind in upholding their obligation to provide a free appropriate public education and cites to three parents of children with disabilities as support. These parents give firsthand accounts of the difficulties their children face due to school closures. The letter also asserts that the lack of an in-person school setting puts students at risk of developing mental health issues.The lawmakers “urge a bipartisan oversight request” for the Centers for Disease Control (CDC) and the National Institute of Health to publish data on the experiences of special education schools and students that use in-person teaching. In their push for in-person learning, the Congressmen cite to a CDC study to say that the risk of transmission in school settings is low. In sum, the letter asks for the committee chairpersons to put “science over politics…to ensure students’ needs are met and federal law is followed.” A copy of the letter can be found here.Author: ASBTo 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 2021Contributors: Julia Martin, Kelly Christiansen, Andrew Ball Posted by the California Department of Education, March 2021 ................
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