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Date: June 26, 2015
ED Offers Guidance on Implementation of New Federal Rules
As the July 1st implementation date (for State-administered programs) for the Office of Management and Budget’s (OMB’s) Uniform Grant Guidance quickly approaches, the U.S. Department of Education (ED) is working to answer lingering questions from grantees and subrecipients. Through a series of responses to questions, as well as a revised frequently asked questions (FAQ) document, ED has provided a few key clarifications, though a number of unresolved issues remain.
In March, ED released an updated FAQ document detailing certain issues with implementing the Uniform Grant Guidance. In response to these FAQs, grantees were left with additional unanswered questions. For example, upon reviewing the requirements in 2 CFR § 200.331(a)(1), many grantees and subrecipients were confused about the meaning of certain data elements that must be included in each subaward agreement. Of the 13 data elements listed in this subsection, few are defined or explained. After receiving a number of questions, ED clarified the meaning of data elements that must be included in subaward notifications under 2 CFR §200.331(a)(1)(vi), (vii), and (viii).
According to the latest FAQ, the “Amount of Federal Funds Obligated by this action” is the amount of funds awarded by the State grantee to the subrecipient in this particular award notice. Please bear in mind, this is in reference to the amount of funds that are subawarded, and the obligation definitions and dates found in 34 CFR §76.707 remain unchanged. The FAQ also states that “Total Amount of Federal Funds Obligated to the subrecipient” is the cumulative total amount awarded by the State, before the current subaward in question, to the subrecipient under the same program and from the same fiscal year (FY) appropriation. Finally, “Total Amount of the Federal Award” refers to the total amount of funds awarded by the grantee to the subrecipient during that fiscal year. For some subawards, these elements may all be the same number, or may not have a number to be included.
In addition to the FAQs, ED has responded to a number of individual questions submitted via email over the last few months. For example, in one response, ED notes that 2 CFR § 200.318(e) authorizes non-federal entities to “enter into State and local intergovernmental agreements or inter‐entity agreements where appropriate for procurement or use of common or shared goods and services.” Some States have established lists of pre-qualified bidders that certain entities may use to select a contractor without going through the full procurement process. Thus, according to ED, a non-federal entity can select a contractor from the pre‐qualified list without requesting bids as would otherwise be required. However, the non-federal entity would have to ask a reasonable number of pre‐qualified bidders to submit proposals before selecting one of the entities that would provide the requested service or goods.
The responses provided by ED, as well as other up-to-date resources on Part 200, can be found on Brustein & Manasevit, PLLC’s website.
ED has also promised additional guidance in the coming weeks, though nothing of substance is expected before the new rules become effective for State-administered programs on July 1st. As more guidance is made available, Brustein & Manasevit, PLLC will continue to update its resources page with applicable links and documents.
Author: SAS
House and Senate Appropriations Committees Approve Ed Funding Bills
Last week, the House Appropriations Subcommittee on Labor-HHS-Education held a two-hour markup on its annual funding bill for fiscal year (FY) 2016. This week, the corresponding Senate Subcommittee held a 20-minute markup before both bills were sent on and approved by both full committees. While the Senate bill does not go as far as the House bill, both chambers are planning cuts for education programs.
The funding levels approved by the House Appropriations Committee remain largely unchanged from the subcommittee bill. The bill would cut funding for the U.S. Department of Education (ED) by about $2.8 billion. That would include eliminating 20 different ED programs, including school improvement grants, the striving readers programs, math and science partnerships, teacher incentive grants, and a number of other competitive grants. Using the savings generated by these eliminations, the bill would allow for some increases for special education, charter schools, impact aid, and a few higher education programs. Meanwhile, Title I grants under the Elementary and Secondary Education Act (ESEA), career and technical education (CTE) State grants, and adult education State grants would remain level funded.
Here is a list of all 20 programs targeted for elimination by the House, along with a (*) notation for those programs that are also zeroed out in the Senate:
- School Improvement State Grants;
- Striving Readers*;
- Preschool Development Grants*;
- Mathematics and Science Partnerships;
- Safe and Drug-Free Schools and Communities National Programs;
- Elementary and Secondary School Counseling;
- Carol M. White Physical Education Program*;
- Investing in Innovation*;
- Teacher Incentive Fund;
- Transition to Teaching*;
- School Leadership*;
- Magnet Schools Assistance;
- Advanced Placement;
- Ready-to-Learn Television;
- Innovative Approaches to Literacy;
- Full Service Community Schools*;
- Javits Gifted and Talented;
- Arts in Education;
- Teacher Quality Partnerships; and
- Regional Education Laboratories.
On the Senate side, the bill would cut about $1.7 billion in ED funding. While the Senate bill would also eliminate some programs, it does not eliminate all 20 programs targeted in the House. Instead, the Senate bill merely makes significant cuts to those programs while providing small increases for Title I, charter schools, and special education. The Senate is planning to level fund CTE programs while cutting adult education basic State grants. The following chart describes some program funding levels from each committee compared to the previous fiscal year. These numbers are still preliminary and are subject to change pending final approval by both the House and the Senate.
| Program | FY 15 | House FY 16 | Senate FY 16 |
| ESEA Title I | $14.4 billion | $14.4 billion | $14.6 billion |
| IDEA Part B | $11.5 billion | $12 billion | $11.6 billion |
| CTE State Grants | $1.1 billion | $1.1 billion | $1.1 billion |
| Adult Ed State Grants | $569 million | $569 million | $548 million |
| TRIO | $840 million | $900 million | $840 million |
| GEAR UP | $302 million | $323 million | $302 million |
| SIG | $506 million | $0 | $450 million |
| 21st Century | $1.2 billion | $1.2 billion | $1 billion |
| Charter Schools | $253 million | $275 million | $273 million |
| Head Start | $8.6 billion | $8.8 billion | $8.7 billion |
| Child Care Development Block | $2.4 billion | $2.4 billion | $2.6 billion |
As this chart illustrates, while the House and Senate do have some similar priorities, there are still a number of differences in the funding levels proposed in both bills. For example, both bills would cut funding for workforce training programs, but by different amounts and in different ways. The one true commonality of both bills is that both would prohibit ED from implementing the gainful employment rules that were promulgated this year. Even though those rules just survived a legal challenge in federal court, Republicans have continually voiced opposition to the rules. Senator Dick Durbin (D-IL) attempted to have the probation language removed, but his amendment failed.
Once both bills get to their respective floors, we are likely to have another slew of amendments. While the House can limit the amendments that are offered, it is very difficult in the Senate to keep Senators from offering any germane amendment they choose to draft. As such, we may not see final legislation until after the July 4th break, and a conference between the two chambers could be a lengthy one. The odds of Congress finishing work before the end of the current fiscal year are slim, meaning the federal government is likely headed for a fall season of continuing resolutions before a final omnibus bill is considered in November. As the debate continues, and funding prospects change, Brustein & Manasevit, PLLC will continue to monitor the process and provide updates accordingly.
Author: SAS
Senate Will Debate ESEA Reauthorization Bill
The Senate’s bipartisan bill to reauthorize the Elementary and Secondary Education Act (ESEA) – the Every Child Achieves Act – will likely be debated on the Senate Floor on Tuesday, July 7th. This week, Senate Majority Leader Mitch McConnell (R-KY) officially scheduled the bill for floor debate in an email to Senate offices. His announcement comes after weeks of speculation on the bill’s fate, as it had fallen behind various other congressional priorities – most recently the Obama Administration’s trade agenda.
Senator Patty Murray (D-WA), who co-authored the bill, said that she is “looking forward to debating our bipartisan bill on the Senate floor and continuing to make progress toward finally fixing No Child Left Behind in a way that works for States and schools and makes sure every child has access to a quality education, regardless of where they live, how they learn, or how much money their parents make.”
However, she added that the Senate still has “a long way to go” before sending a bill to the President's desk. A long debate, possibly spanning multiple weeks, is expected. For comparison, when the Senate passed the last reauthorization of ESEA in 2001 – the No Child Left Behind Act – the bill was considered on the floor for nearly two months.
Additionally, there are only 16 legislative days next month before Congress breaks for its August recess. Once legislators return in September, appropriations bills will be the chamber’s major priority, leaving little time for other substantive issues. Even if the Senate does manage to pass the bill, it will still face consideration in the House, which has had its own delays in ESEA reauthorization this Congress.
Resources:
Lauren Camera, “Senate Schedules Debate on Bipartisan ESEA Reauthorization,” Education Week: Politics K-12, June 24, 2015.
Author: PBA
ED Approves Eight More ESEA Waivers
This week, the U.S. Department of Education (ED) renewed the waivers from certain accountability provisions under the Elementary and Secondary Education Act (ESEA) for the District of Columbia and seven States – Georgia, Hawaii, Kansas, Missouri, Nevada, New York, and West Virginia.
These waivers were renewed under a fast-track approval process for States following through on their commitments from the original round of waivers. Last March, Kentucky, Minnesota, New Mexico, North Carolina, and Virginia also received renewed waivers through the expedited process. In 2011, 42 States received ESEA waivers, all of which were set to expire at the end of the 2014-2015 school year, and every waiver State has applied for renewal. States that receive renewed waivers under the normal approval process will be notified this summer.
In order to receive the waivers, States had to outline accountability plans and implement certain policies favored by ED, such as rigorous academic standards and teacher evaluations that incorporate student test scores.
Resources:
Emma Brown, “Feds Renew No Child Left Behind Waivers for D.C. and Seven States,” Washington Post, June 23, 2015.
Author: PBA
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.
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