Federal Update: May 28, 2021 - Government Affairs (CA Dept ...



The Federal Update for May 28, 2021From:Michael Brustein, Julia Martin, Steven Spillan, Kelly ChristiansenRe:Federal UpdateDate:May 28, 2021 TOC \o "1-3" \h \z \u Legislation and Guidance PAGEREF _Toc73091319 \h 1President Biden to Release Detailed Budget Today PAGEREF _Toc73091320 \h 1New ESSER Guidance Outlines Allowable Uses of Funds PAGEREF _Toc73091321 \h 2OCR Publishes Letter on AAPI Discrimination PAGEREF _Toc73091322 \h 3News PAGEREF _Toc73091323 \h 4ED Announces Plans for Higher Ed Regulations PAGEREF _Toc73091324 \h 4President Biden Nominates New General Counsel PAGEREF _Toc73091325 \h 5Reports PAGEREF _Toc73091326 \h 5ED OIG Releases Semiannual Report to Congress PAGEREF _Toc73091327 \h 5 Legislation and GuidancePresident Biden to Release Detailed Budget TodayPresident Biden is expected to release his full budget request to Congress for fiscal year (FY) 2022 today, following the submission of a “skinny” budget request in April. It is common practice for a new presidential administration to first submit a pared down version of its budget request that includes top-line spending and policy proposals, followed by a more detailed request later in the year that includes program-level funding. Overall, the President is requesting $6 trillion for FY 2022 government-wide. The President is expected to request increases in funding for the U.S. Department of Education (ED). In the “skinny” budget released earlier this year, the President requested an increase of nearly $30 billion, or 41 percent, for ED compared to the prior fiscal year. That figure includes an increase of $20 billion for Title I under the Elementary and Secondary Education Act and a boost of $2.6 billion for the Individuals with Disabilities Education Act. The full budget expected today will provide information on program-level funding for additional ED grants. ED will host a budget briefing on the President’s request at 3:25pm ET today, May 28, during which ED officials, including Secretary of Education Miguel Cardona and Acting Assistant Secretary for Planning, Evaluation, and Policy Development Donna Harris-Aikens will review the request and host a question-and-answer period. Stakeholders may participate in the phone briefing by registering via this link. In addition, the ED budget materials, once released, will be published here.Although the President’s budget request is submitted to Congress each fiscal year, Congress has no obligation to enact the President’s request. With Republicans in Congress pushing fiscal restraint moving forward, appropriations negotiations for FY 2022 will likely be challenging in the Senate. The House has outlined a schedule for hearings and passage of appropriations bills by July, but the Senate has not made as much progress.Author: KSCNew ESSER Guidance Outlines Allowable Uses of FundsIn new guidance released this week, the U.S. Department of Education (ED) outlines how States and districts can use federal stimulus dollars provided under the Elementary and Secondary School Education Relief Fund (ESSER) and the Governor’s Emergency Education Relief Fund (GEER). Notably, the guidance standardizes the use of funds across all three stimulus bills: the Coronavirus Aid, Relief, and Economic Security Act; the Coronavirus Response and Relief Supplemental Appropriations Act; and the American Rescue Plan Act. Though each stimulus bill lists slightly different allowable uses of funds, ED asserts that any of the listed activities can be covered under any of the three pools of funding. In another departure from the statute, the guidance declines to use the term “learning loss,” though that term is specific to the statute. Instead, it refers to the “academic impact of lost instructional time.”ED lists a number of ways in which students outside of the 5-17 age group might benefit from ESSER funds. For example, it says that because early childhood education is an allowable use of funds under programs like the Individuals with Disabilities Education Act (IDEA), and because any IDEA uses of funds are allowable under ESSER, preschool is an allowable use of funds under ESSER. Likewise, the document says that ESSER and GEER funds may be used to support students who graduated or will graduate in the classes of 2020 and 2021 but “have not yet successfully transitioned to college or careers.” This might include, for example, “college or career counseling, assistance with college applications or entry into job training programs, job training, post-secondary counseling and related services, including for associate and baccalaureate degree programs, and financial literacy.”ED acknowledges the importance of indoor air quality in suppressing the spread of coronavirus and says that a number of renovation and remodeling activities, like replacing old carpet with something easier to clean or updating unused rooms or facilities to help with social distancing, are allowable. However, it notes that construction projects are subject to prior written approval from the Governor or State educational agency (or ED, if a State-level project). HVAC projects must also meet standards set by the American Society of Heating, Refrigeration, and Air Conditioning Engineers. Notably, ED raises concerns on the use of bipolar ionization technology, which it says can create ozone and, per Environmental Protection Agency (EPA) guidance, may not be eligible for use in occupied spaces. It links to guidance documents from the EPA and the Centers for Disease Control on devices to improve indoor ventilation.Other allowable uses of funds listed include the purchase or lease of trailers or modular units; the hiring of mental health care personnel, teachers’ aides, and paraprofessionals; and implementing or expanding arts programming (including by purchasing instruments) so more students can participate. ED explicitly says that funds may be used to hire new staff and to avoid layoffs of existing staff, provide custodians and other hourly workers with overtime pay where needed to reopen or keep schools open, and childcare for children of teachers and staff so that the teachers can continue to provide instruction – including through contracts with daycare facilities or an individual retention incentive to offset the cost of childcare. The agency also says that bonuses or “premium pay” are allowable as long as consistent with the Uniform Guidance and consistent with “an established plan” – which could be generated in response to the pandemic.The guidance also says that a local educational agency may charge reasonable administrative costs to ESSER or GEER consistent with the Uniform Guidance, and that the State may limit the amount of administrative charges – but the State may not limit local educational agencies to only some of the programmatic allowable uses of funds.ED is expected to release guidance on the “maintenance of equity” provision of the American Rescue Plan next. The use of funds guidance is available here.Author: JCMOCR Publishes Letter on AAPI DiscriminationThe U.S. Department of Education’s (ED’s) Office for Civil Rights (OCR) sent a letter to educators on Wednesday reminding them of schools’ civil rights obligations regarding discrimination based on actual or perceived race, color, national origin, sex, and disability. These forms of discrimination are prohibited by federal law, including under Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and Section 504 of the Rehabilitation Act of 1973.The letter was issued due to ED’s concerns about increased harassment of Asian American and Pacific Islander (AAPI) students and following President Biden’s recent “Memorandum Condemning and Combating Racism, Xenophobia, and Intolerance Against Asian Americans and Pacific Islanders in the United States.” OCR discusses the importance of identifying cases of discrimination that may target multiple parts of a student’s identity, such as sex and race. The letter reiterates schools’ obligations to address incidents of discrimination that create “a hostile environment in school: that is, harassment that is severe, pervasive, or persistent in ways that interfere with a student’s ability to participate in or benefit from the services, activities, or privileges provided by a school.” A school must appropriately respond to and take steps to remedy acts of discrimination in order to remain in compliance with federal civil rights law. A violation of such laws can lead to a restriction on a grantee’s federal funding. The letter links to previously published resources regarding racial discrimination, as well as a more recently issued resource on COVID-19-related discrimination in schools. The letter on AAPI discrimination is available here. Author: KSCNewsED Announces Plans for Higher Ed RegulationsThe U.S. Department of Education (ED) announced plans this week to draft new regulations for a number of higher education policy issues, including revising rules established by the prior administration, or, in some cases, drafting new rules. In a document published on Wednesday, ED detailed its plans to establish negotiated rulemaking committees, hold virtual public hearings in June, and solicit public comments on its planned regulatory actions.The announcement reiterates ED’s goal of creating “equitable outcomes for all students” under the current administration. The rulemaking initiative highlights the effort from the Biden administration to carry out its campaign promise of making higher education more accessible, and the proposed regulatory agenda addresses affordability of postsecondary education, federal student loans, and institutional accountability.Under the Trump administration, ED tightened the standards for when a borrower could receive loan forgiveness through the borrower defense to repayment program and eliminated regulations on gainful employment, which were designed to restrict low-quality institutions of higher education from receiving federal aid. ED plans to address both of these issues as part of its higher education regulatory agenda. Some of the other issues that the new regulations will focus on include the Public Service Loan Forgiveness program, Pell Grants for incarcerated students, and institutional change of ownership. ED invites the public to comment on the proposed agenda by July 1, 2021 and intends to convene multiple negotiated rulemaking committees to draft the proposed regulations. Negotiators of the committees will be from organizations whose interests are “significantly affected by the proposed regulations.” A schedule and the topic for each committee will be released in subsequent Federal Register notices. The virtual public hearings will be held on June 21, June 23, and June 24, 2021. A complete list of the higher education regulatory agenda can be viewed in the document here.Resources:Michael Stratford, “Cardona unveils sweeping higher education regulatory agenda,” Politico, May 24, 2021. Author: ASBPresident Biden Nominates New General CounselJust a week after a group of advocates urged him to appoint a new General Counsel for the U.S. Department of Education (ED), President Biden has nominated Lisa Brown for the post. Brown is currently the General Counsel at Georgetown University and worked in both the Obama and Clinton administrations, though in neither case did she work at ED. She worked at the Office of Management and Budget as acting chief performance officer under the Obama administration, as well as serving as staff secretary, and she was a career attorney at the U.S. Department of Justice during the Clinton administration.Brown’s nomination will go to the Senate, where it will be in line behind that of James Kvaal for undersecretary, Gwen Graham for assistant secretary of legislative and congressional affairs, and Catherine Lhamon as assistant secretary for civil rights. The White House still has nine Senate-confirmable posts to fill at ED.Resources: Michael Stratford, “Biden picks Georgetown U. official to serve as to Education Department lawyer,” Politico, May 26, 2021.Author: JCMReportsED OIG Releases Semiannual Report to CongressThe U.S. Department of Education’s (ED’s) Office of Inspector General (OIG) issued its semiannual report to Congress this week, detailing the OIG’s activities over the past six months, from October 1, 2020 to March 30, 2021. In total, the OIG published 13 audit reports, identified $7.6 million in questioned costs, and closed 21 investigations involving fraud or corruption. ED OIG’s work included a review of colleges’ compliance with reporting requirements for the Higher Education Emergency Relief Fund, a State educational agency’s internal controls over the Emergency Impact Aid for Displaced Students program, college compliance with Clery Act crime reporting requirements, and an inspection report on ED’s recognition of the Accrediting Council for Independent Colleges and Universities, among others. On the investigative side, the OIG took several criminal actions against individuals, including some educational service providers involved in a fraudulent tutoring scheme, individuals involved in student aid fraud, charter school officials, and former school superintendents for their involvement in a virtual school fraud scheme, among others. Overall, ED OIG secured over $16.5 million in restitution, fines, and other types of payments linked to their fraud work. The OIG’s semiannual report to Congress 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 2021Contributors: Julia Martin, Kelly Christiansen, Andrew BallPosted by the California Department of Education, May 2021 ................
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