Status of Pending Legislation and Reauthorizations Julia Martin [email protected] Brustein &...

Status of Pending Legislation and Reauthorizations

Julia [email protected]

Brustein & Manasevit, PLLCFall Forum 2014

Agenda

Review: What has Congress done lately?

Progress on Policy Legislation

New Trends

Outlook for the 114th Congress

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Brustein & Manasevit, PLLC

What has Congress Done Lately?

As of end of September, 113th Congress has passed 163 bills

Least of any Congress (112th: 283; 111th: 383) 18 are bills to rename Post Offices or federal

courthouses Includes:

A limited number of appropriations bills A very limited number of non-controversial pieces of

education reauthorization legislation WIA CCDBG (pending) ESRA (pending)

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What has Congress Done Lately?

Congress scheduled only 15 days of “lame duck” session between elections and end of year/end of 113th Congress

Focus on “must-pass” legislation only i.e. appropriations

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Policy Legislation

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Fiscal Is

sues

Everything else

Why Isn’t Education a Priority?

Limited opportunities to move legislation Limited time left on legislative calendar High degree of partisanship

High number of “must-act” issues and priorities Constant crisis situation

Significant possibility of primary challenges, electoral turnover Education not a deciding issue for most voters

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Why Isn’t Education a Priority?

Bottom line: Congress is focusing on issues where they Can / must take significant action Can / must move quickly Will maximize opportunity to drive positive publicity /

raise money

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WIOA: The Rare Success

Workforce Innovation and Opportunity Act (H.R. 803) passed Congress on July 9th, 2014 Product of “pre-conference” discussion among

bipartisan group of lawmakers “Streamlines” WIA by eliminating some programs

(but maintains major targeted programs) Makes some changes to makeup of State, local

WIBs (to increase role of businesses/employers) Expands scope of AEFLA program Sets new common performance metrics for all

programs

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Charter Schools Success and Opportunity through Quality Charter Schools Act (H.R. 10)

Would combine two existing federal programs (Charter School Grant Program and Charter School Credit Enhancement Program)

15% can be reserved by ED for charter school financing 10% can be reserved by ED for “national activities” Priority to States with more open charter laws

Changes to lotteries: Would allow grants to go to schools that use weighted lotteries that

“give slightly better chances for admission to …educationally disadvantaged students” (if permitted by State)

Permits students to go from one charter to another without having to re-enter lottery

Authorizes an additional $50 million annually for the Charter Schools Program (CSP)

Passed House in May 2014 (awaiting action in Senate)

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Early Education

Administration plan announced in President’s State of the Union address $77 billion in subsidized universal pre-K for low/middle-

income families over next decade Federal share paid for through increase in tobacco

taxes (maybe) States receive funding for adopting certain

quality standards Including class size, education level and pay of instructors,

State-level inspections and audits, etc. Federal share drops from 90% to 25% over 10-year period

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Early Education

Strong Start for America’s Children Act (S. 1697) Focus on universal, voluntary pre-K for low-income three

and four-year-olds Funds would be disbursed based on a state’s share of four-

year olds living at or below 200% of the poverty line Requires set staff qualifications, class size requirements,

salaries, early learning and development standards, longitudinal data systems

No action to date Questions remain about federal role, how to offset cost

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IDEA

No action to date

Focus is on “full funding” of existing federal obligation “Full funding” = 40% of excess cost of educating

students with disabilities Harkin bill would gradually bring up funding levels

to full federal commitment But these initiatives stall because of cost

Unlikely to move before ESEA

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ESEA Reauthorization: Senate

Strengthening America’s Schools Act of 2013 (S. 1094) passed out of Committee on party line vote June 12, 2013 Based largely on waivers, October 2011 ESEA legislation Requires States to adopt standards, assessments,

performance targets Sets “n-size” at 15 students Increased data/reporting requirements (cross-tabulation) Interventions in priority/focus schools Adds personnel expenditures to comparability calculation States must implement teacher/principal evaluations

Committee Chairman Tom Harkin (D-IA) says he hopes to get it to the floor, but prospects still murky

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ESEA Reauthorization: House

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Few similarities between bills mean easy conference/ agreement unlikely Consensus: reauthorization will wait until mid- to late 2015 (or later!)

Legislators will start fromscratch in 2015

Impact of ESEA waivers still TBD

ESEA Reauthorization: Overall

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Perkins

Carl D. Perkins Career and Technical Education Act originally due for reauthorization in 2012

Bill introduced in Senate in June 2014 Sen. Tim Kaine (D-VA) and Sen. Rob Portman (R-OH) Would reauthorize, promote alignment with other programs,

workforce needs

Some information sessions, one “field hearing” by House CTE caucus in October 2014

No significant action to date

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Child Care and Development Block Grant

Bipartisan, bicameral “pre-conference committee” drafted new compromise legislation unveiled in September Based largely on Senate bill from March

Compromise bill would: Require States to conduct background checks of employees, including

checking state criminal and sex-offender registries and state-based abuse and neglect registries

Require States to set aside more money to boost program quality (increasing from 4 percent of total now to 9% after 5 years)

Ensure that program staff are trained in basic safety measures like CPR Increase State monitoring and oversight responsibilities Require States to check family eligibility for subsidies no more than once a

year (focus on continuity of child care)

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Child Care and Development Block Grant

Compromise bill introduced in House as amendment to Senate legislation in September, passed easily Under “suspension of the rules” procedure

Stalled in Senate by hold on legislation from Sen. Pat Toomey (R-PA) Toomey wanted Senate to vote on his own K-12 background checks

bill first

Senate leadership filed cloture motion to overcome hold with vote during “lame duck” session

Senate voted 96-1 to overcome hold; bill passed Senate 88-1 on November 17th

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New Trends

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The New Normal Case study bills: WIOA and CCDBG

In both cases, reauthorization of legislation was: relatively uncontroversial modest in scope, requiring no additional funds but had been stalled for years (WIA: 1998, CCDBG:

1996) House and Senate each released text of reauthorization

bills But bills were highly partisan, passed only one chamber

Compromise legislation announced after little-publicized meetings of “pre-conference committees”

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The New Normal

Pre-Conference committees allow bills to bypass normal legislative process Including potential pitfalls of Committee/amendment

Final compromise bills pass with broad bipartisan support after limited debate

Lesson: substantive legislation is now most effectively passed through extra-legislative process

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The New Normal

Pros: Actually moves substantive policy

legislation

Cons: Takes away some avenues for public/

stakeholder/ lawmaker input Only works for “non-controversial”

legislation Only works for legislation without

significant cost increases

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The New Normal

How far can Congress take this? IDEA reform - NO

Focus is on funding, and that makes a bill more contentious ESEA Reauthorization - NO

Depends on building consensus between Democrats, Republicans Will changes be significant/ structural? Will there be changes to funding formula?

HEA - Maybe Depends on consensus, scope of changes

Perkins - Maybe Depends on consensus, scope of changes

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Administration Initiatives

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E-Rate

President Obama’s “ConnectED” initiative Supported in FY 2015 budget proposal Accompanied by new financial/in-kind contributions from private

companies

FCC passed resolution in July 2014 to: Add $2 billion (in FCC cash on hand) to program Encourage consortium applications, transparency Re-work formula (based on student population) in two-year field test Focus on wi-fi and phase out other services (voice/paging)

Some room for additional input on funding distribution, consortium-based purchasing

New proposal in November 2014 – will increase E-Rate fees to add 62% more to budget (FCC vote December 11)

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Resource Equity Guidance New guidance issued October 1

No new laws/requirements/sanctions

BUT does say OCR review will look at: Equal access to educational opportunities, such as Advanced

Placement courses, gifted and talented programs, college-preparatory programs, and extra-curricular activities;

Equal access to qualified teachers, school leaders, and support staff; Equal access to school facilities, including factors such as

overcrowding, lighting, and accessibility for students with disabilities;

Equal access to technology and instructional materials, such as laptops, internet, calculators, and library books;

Disciplinary policies

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Teacher Distribution Equity Suggested additional waiver renewal priority:

Progress toward equity in teacher distribution Pulled when clear States not making progress toward original

priorities

July 2014 announcement said ED would ask all States to file new equity plans by April 2015, would:

Release State equity data Develop new technical assistance system

November 2014: ED delays due date of systems until June 1, 2015 Sends State equity data to EDFacts directors Offers FAQs document (“draft guidance”)

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ESEA Waivers

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Source: Ed WeekBrustein & Manasevit, PLLC

ESEA Waivers Impact still TBD

give relieve to some districts/States (unless don’t qualify/waiver revoked)

cause conflict with Congress (and States, as compliance issues, high-risk, revocations continue)

promote administration priorities (but Common Core, testing coming under fire)

Let Congress delay work on reauthorization? "Waivers were a temporary fix that we tried to do on a law that was

outdated, that had perverse incentives, that was hurting children and hurting adults. And lawmakers need to step up in a bipartisan way and do their job. Nothing we have done prevents them, prohibits them... That's just absolutely a dishonest excuse and they need to get past their dysfunction.“ (Secretary Duncan to Education Week, Sept. 2014)

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ESEA Waivers

New waiver guidance (issued November 2014) allows extensions until 2017-18 or 2018-19 Well into new presidency

Will likely continue until ESEA reauthorized

ED must navigate space between offering as many waivers as possible, and not wanting to give some special breaks Continue designation of states as high-risk and waiver

revocation But not asking for evidence on success

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Outlook for the 114th Congress

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Outlook for 114th Policy

With Republican takeover of Senate, more leverage over President

Priorities: Repeal Affordable Care Act (or portions thereof) Reduce federal spending Reform tax code, including Estate Tax Pressure administration on use of Presidential/ executive

authority School choice/ charters

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Outlook for 114th

Policy, cont. More immediate debate on:

Immigration ISIS/Syria Homeland security

With possible (but by no means certain) longer-term action on HEA Student loans ESEA

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Disclaimer

This presentation is intended solely to provide general information and does not constitute legal advice or a legal service. This presentation does not create a client-lawyer relationship with Brustein & Manasevit, PLLC and, therefore, carries none of the protections under the D.C. Rules of Professional Conduct. Attendance at this presentation, a later review of any printed or electronic materials, or any follow-up questions or communications arising out of this presentation with any attorney at Brustein & Manasevit, PLLC does not create an attorney-client relationship with Brustein & Manasevit, PLLC. You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances.

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Status of Pending Legislation and Reauthorizations Julia Martin [email protected] Brustein &...

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