Federal Update: March 13, 2020 - Government Affairs (CA ...



From:Michael Brustein, Julia Martin, Steven Spillan, Kelly ChristiansenRe:Federal UpdateDate:March 13, 2020The Federal Update for March 13, 2020 TOC \o "1-3" \h \z \u Legislation and Guidance PAGEREF _Toc34996965 \h 1Lawmakers Push for Coronavirus Remedies as Schools Close PAGEREF _Toc34996966 \h 1ED Issues New COVID-19 Guidance Documents PAGEREF _Toc34996967 \h 3New Draft Title I Allocation Guidance Published PAGEREF _Toc34996968 \h 4Congress Votes to Overturn Borrower Defense Regulations PAGEREF _Toc34996969 \h 5DOL Publishes Final Rule on Apprenticeship Program Expansion PAGEREF _Toc34996970 \h 5 The President is expected to declare a national emergency Friday afternoon in response to the COVID-19 pandemic. Legislation and Guidance Lawmakers Push for Coronavirus Remedies as Schools CloseAs school districts and State educational systems around the country make the decision on whether and how long to stay open in the face of a COVID-19 epidemic, Members of Congress and others have asked for more information and flexibility to ensure students are protected.In a letter to Secretary of Education Betsy DeVos Tuesday, Senators expressed concern about the potential adverse effects of school closures on students and families, citing lack of access to computers, high-speed internet, and school meals. The letter asks DeVos to provide, no later than March 24th, information on inter-agency communications with the U.S. Departments of Agriculture (USDA) and Health and Human Services; whether the Department of Education (ED) can provide assistance to families without computers or high-speed internet; what guidance should be provided regarding the educational needs of students who are not able to attend schools; how ED will ensure access to online education is equitable and accessible; and more detail on the previously issued guidance for institutions of higher education regarding maintenance of program quality and the definition of “regular” and “substantive” interaction, among others. DeVos had promised last week that ED was updating guidance on how schools should manage closures and other educational needs. Three documents – one on the Family Educational Rights and Privacy Act, one on special education, and one on assessments and accountability – have been posted on ED’s coronavirus website. In an address to the nation Wednesday night, President Trump indicated that there was school closure guidance available; he seems to have been referring to existing Centers for Disease Control (CDC) guidance which is on the same site.Federal Communications Commissioner Jessica Rosenworcel expressed many of the same concerns, saying that while telework, telehealth, and online education can be useful during public health closures, in the coming weeks “we are going to expose some really hard truths about the scope of the digital divide.” Rosenworcel and fellow Commissioner Geoffrey Starks urged their colleagues to convene a meeting to discuss providing Wi-Fi hotspots for students and “connective care” for quarantined patients, as well as strengthening existing networks to facilitate telework. Senator Maria Cantwell (D-WA) told reporters she wrote to Commission Chairman Ajit Pai last week asking for help in deploying emergency resources, but that she has not heard back.Meanwhile, some agencies have taken steps to help schools adapt. USDA is following guidance on disasters and offering waivers to allow schools to serve reimbursable meals outside of school cafeterias in the event of school closures. More than 25 States have been granted waivers of regular school meal programs, instead USDA will allow them to serve along summer food guidelines. USDA also reportedly will waive the “congregate feeding” requirement in emergency meal service, allowing food to be offered as a “grab and go” measure instead of in groups. Representatives Suzanne Bonamici (D-OR) and James Comer (R-KY) introduced legislation this week that would create additional flexibilities, like allowing for flexibility on meal components if food supply or procurement is disrupted. That bill is known as the COVID-19 Child Nutrition Response Act.The U.S. Office of Management and Budget also offered some additional flexibilities. In a guidance document issued this week, OPM said it would relax the requirement for SAM registration timelines, allow agencies to provide no-cost extensions on expiring awards and abbreviated non-competitive continuation requests, extend financial and other reporting deadlines, permit agencies to waive prior approval for some costs, and allow certain necessary pre-award costs. The document also said awarding agencies could allow recipients to continue charging salaries and benefits to applicable federal awards even in the event of school closures.With many districts and schools weighing potential closures, the Centers for Disease Control (CDC) published a document late Thursday evening detailing considerations in favor of and against school closures of various length. These look at the impact of school closures from a public health perspective as well as a microeconomic perspective which considers their impact on families. The document establishes four categories of school closures: responsive to school-based cases (less than one week); short-term (two weeks); medium term (four weeks); and long-term (eight to 20 weeks). Federal agencies may soon be working remotely along with much of the nation – ED sent out guidance to staff that they should prepare for that possibility and bring their laptops home each night – but Congress will not. Senate Majority Leader Mitch McConnell announced Thursday that the Senate would stay in session until discussions on a stimulus bill were completed. Early versions of that bill include paid sick leave, extended unpaid leave in the case of school or childcare closures, and additional flexibility for school meal programs. As of the time of this writing, no agreement has been reached between House leadership and the Senate and White House.Resources:Lauren Camera, “Coronavirus School Closings Expose Digital Divide,” US News, March 10, 2020.Michael Stratford, “Education Department Staff Told to ‘Immediately’ Prepare for Telework Due to Coronavirus,” Politico, March 11, 2020.Author: JCMED Issues New COVID-19 Guidance DocumentsOn Thursday the U.S. Department of Education (ED) issued three new guidance documents regarding treatment of various educational requirements during the COVID-19 pandemic.The first is a “frequently asked questions” (FAQs) document on the Family Educational Rights and Privacy Act (FERPA). The document is intended to answer questions for school officials struggling to deal with public health issues. Few pieces of personal information may be released without parental consent, but the law does permit disclosures from student educational records without prior consent in an emergency, if necessary, to address threats to public health or safety. ED encourages schools and districts to find ways to address health and safety issues without compromising privacy, suggesting releasing information in ways where the student is not directly identifiable, or releasing only to limited public health officials. However, it notes that disclosing information to the media is still prohibited, and identifying specific students is strongly discouraged. FERPA does not apply to the identity of teachers and staff, but ED notes that State law may apply in that situation.The second document is a question and answer (Q&A) document regarding services for students with disabilities. While the document notes that the Individuals with Disabilities Education Act (IDEA) does not address situations in which schools are closed for an extended period of time, ED believes services should be offered to align access to any opportunities other students receive. Therefore, if a local educational agency (LEA) does not provide any services to the general student population during a closure, the LEA would also not be required to provide special education services. Once school resumes, the LEA must make every effort to provide services in accordance with the student’s individualized education program. Students with disabilities should have the same access to any educational opportunities offered during a school closure – for example, if a school offers online education, it should be accessible for students with disabilities. LEAs must also provide “homebound instruction” as necessary if the student is absent for an extended period due to COVID-19. If a child does not receive services during a closure, the LEA must provide compensatory education, as necessary.Finally, ED issued a document which discusses the potential impact of COVID-19. The document indicates that waivers would be granted under Section 8401 of the Elementary and Secondary Education Act. It says that ED recognizes assessments might not be practical, so it will consider targeted one-year waivers of the assessment requirements for impacted schools. However, they say States should first consider adjusting the testing window to accommodate as many students as possible. ED will also consider targeted one-year waivers of the requirement to identify schools for targeted or comprehensive support and intervention. Associated requirements – like the 95 percent assessment participation requirement or measurement of indicators like chronic absenteeism – could also be waived.ED said that it would provide additional flexibility in reporting and grants administration – including of fiscal requirements – if requested. On a conference call Thursday, ED staff said that the appropriate State staff should contact ED to ask for relief – which ED said would be granted in the vast majority of circumstances. Assistant Secretary for Elementary and Secondary Education Frank Brogan said that ED was anticipating and preparing for a high number of Elementary and Secondary Education Act waivers due to the pandemic.Author: JCMNew Draft Title I Allocation Guidance PublishedThe U.S. Department of Education (ED) released draft guidance yesterday on within-district allocations under Title I of the Elementary and Secondary Education Act. The guidance does not offer new interpretations; instead it provides more detailed explanations and examples on existing requirements for set-asides and reservations. The guidance notably gives step-by-step examples in some cases, providing a road map for districts who want to know which reservations or set-asides might come first in the allocation process.The guidance does offer a note on census data, which has been the topic of significant discussion as States prepare for the decennial census this year. ED notes that local educational agencies (LEAs) may choose from a number of data sources for purposes of school poverty counts and ranking, including the number of students ages 5-17 living in poverty as counted in the most recent census. However, ED says that census data is not usually available at the school level, and therefore any census data used would likely be as part of a composite. The guidance also discusses the year of data to be used, including how to use current-year data to determine allocations for new and significantly expanding charger schools, depending on the date of the allocation.Finally, the guidance walks LEAs through the option to rank and serve secondary schools based on “feeder patterns” – that is, poverty percentages at elementary and middle schools that feed into a high school – as well as the option to serve lower-poverty high schools and grade-span options.An appendix to the document discusses how LEAs and schools may allocate funding based on data from the Community Eligibility Program (CEP), which takes the place of free and reduced-price lunch data at schools in which the program is implemented. The responses on integrating CEP data align with earlier guidance from ED and the U.S. Department of Agriculture and provide three options for using that data to generate a single poverty metric in districts that have some CEP schools and some non-CEP schools.Another appendix incorporates existing information on new and significantly expanded charter schools from 2000 ED guidance.The draft guidance is available here. Comments can be submitted to OESE.Feedback@ through April 10th. Author: JCMCongress Votes to Overturn Borrower Defense RegulationsBoth the House and Senate have voted to overturn the Trump administration’s “borrower defense” regulation, which outlines the process for federal loan borrowers to receive loan forgiveness if they were defrauded by their institution of higher education. The regulation was overturned by a resolution under authority from the Congressional Review Act, which permits Congress to overrule regulations within 60 legislative days of publication by a federal agency. The regulation in question was a rewrite of a former Obama administration borrower defense process. This administration’s rule is significantly narrower than the prior administration’s, raising the burden of proof that borrowers must meet. The rule requires borrowers to prove that an institution intentionally misled the student and also places a statute of limitations of three years on borrower defense claims. The new regulation would go into effect on July 1st, unless the President signs Congress’ resolution to overturn it.It remains unclear whether President Trump will sign the resolution or not. Recently, the White House issued a policy statement supporting the regulation and stating that the President’s policy advisers would recommend he veto the resolution, but the President reportedly told some Republican Senators this week that he is “neutral” about the rule. Should the President sign the resolution, then according the Congressional Review Act, the U.S. Department of Education would be prohibited from issuing any “substantially similar” regulation. The standard for “substantially similar,” though, is not one that has been tested in court. Resources:Erica L. Green and Stacy Cowley, “Senate Rejects DeVos Rule Restricting Debt Relief for Bilked Students,” New York Times, March 11, 2020.Author: KSCDOL Publishes Final Rule on Apprenticeship Program ExpansionThe U.S. Department of Labor (DOL) recently published a final rule in the Federal Register meant to expand apprenticeships across the country by establishing a system for advancing the development of high-quality, Industry-Recognized Apprenticeship Programs (IRAPs).? The final rule will be effective on May 11, 2020.? This is the culmination of events that began on June 15, 2017, when President Trump signed an Executive Order directing the Secretary of Labor to consider proposing regulations that promote the development of apprenticeship programs by third parties and to establish a Task Force on Apprenticeship Expansion.? This task force included representatives of business, labor, educational institutions, trade associations, and public officials and considered members’ recommendations on how to best expand the apprenticeship model in America. ?On May 10, 2018, the task force transmitted its final report to the President, including recommendations noting that the establishment of IRAPs would provide industry organizations and employers more tools to create high-quality apprenticeship programs.? Last summer, DOL issued a Notice of Proposed Rulemaking to establish the IRAP program. ?DOL received over 300,000 comments – the most comments DOL’s Employment and Training Administration has ever received on a rule.? IRAPs are high-quality apprenticeship programs, recognized as such by a third-party entity under standards established by DOL in the new rule. Through these programs, individuals will be able to obtain workplace-relevant training and progressively-advancing skills that result in an industry-recognized credential, all while getting paid for their work. ?An IRAP is developed or operated by entities such as trade and industry groups, corporations, non-profit organizations, educational institutions, unions, and joint labor-management organizations.Third-party entities interested in evaluating and recognizing high-quality IRAPs can follow the process outlined in the final rule to become Standards Recognition Entities (SREs).? As described in the final rule, many different types of entities may become recognized SREs, including trade groups, companies, educational institutions, State and local governments, non-profits, unions, joint labor-management organizations, and certification and accreditation bodies for a profession or industry. ?The rule also outlines the responsibilities and requirements for SREs, as well as DOL’s standards that programs must meet to obtain and maintain IRAP status and sets forth how the administrator will oversee SREs.Once recognized by DOL, SREs will work with employers and other entities to establish, recognize, and monitor high-quality IRAPs that provide apprentices with industry-recognized credentials.? IRAPs will serve as a complement to the successful registered apprenticeship program that has been in place for over 80 years. The industry-led, market-driven SRE approach outlined in the final rule will give employers and other stakeholders additional flexibility necessary to expand the apprenticeship model into new industries and to address the diverse workforce needs of different industries and occupations. Resources:U.S. Department of Labor Press Release, “U.S. Department of Labor Issues Industry-Recognized Apprenticeship Program Final Rule,” March 10, 2020.Author: SASTo stay up-to-date on new regulations and guidance from the U.S. Department of Education, register for one of Brustein & Manasevit’s upcoming webinars. Topics cover a range of issues, including grants management, the Every Student Succeeds Act, special education, and more. To view all upcoming webinar topics and to register, visit webinars.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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