THE FEDERAL UPDATE 1
June 9, 2017

From: Michael Brustein, Julia Martin, Steven Spillan, Kelly Christiansen
Re: Federal Update
Date: June 9, 2017

Legislation and Guidance

DeVos Defends Trump Budget to Senate

OCTAE Issues Guidance on Supplemental Wage Info for WIOA Performance

News

Additional Staff Hires at ED

Financial Aid Data Retrieval Tool Partially Restored

Legislation and Guidance

DeVos Defends Trump Budget to Senate

In a hearing before a Senate Appropriations Subcommittee Tuesday, Secretary of Education Betsy DeVos was called to defend the budget proposal put forth for the U.S. Department of Education(ED) by President Trump for fiscal year (FY) 2018. Senators on both sides of the aisle expressed skepticism about the budget proposal, especially deep cuts to popular programs like teacher training and the suggested elimination of the 21st Century Community Learning Centers program.

From the beginning, lawmakers dismissed the numbers in the budget proposal, asking DeVos instead for an explanation of her policies. “I think it's likely the kinds of cuts proposed in this budget will not occur,” said Chairman of the Appropriations Subcommittee on Labor, Health and Human Services, and Education Roy Blunt (R-MO), “so we really need to fully understand your priorities and why they are your priorities.”

Many also referred to the controversy raised by DeVos when she testified before the House Committee last month. The President’s budget contains several proposals to expand school choice, including a $1 billion Title I portability program and a $250 million proposal to fund and study the impact of vouchers which can be used in private schools. When asked by lawmakers on the House Appropriations Committee whether federal legal protections, including protections under the Individuals with Disabilities Education Act (IDEA), would follow students using vouchers to attend private schools, DeVos indicated it would be up to individual States. But in the Senate Committee hearing this week, she said instead that “schools that receive federal funds must follow federal law.” However, DeVos refused to go into greater detail about this statement, simply repeating her statement that schools which accept voucher students must follow federal law. She also refused to comment on whether schools would be able to reject vouchers from lesbian, gay, bisexual, and transgender (LGBT) students, saying that the issue of whether those students have federal protections is still unsettled, and that “on areas where the law is unsettled, this department is not going to be issuing decrees. That is a matter for Congress and the courts to settle.”

There was also some disagreement and confusion over whether programs would be level-funded or cut under the proposed budget. DeVos told the committee that Title I of the Elementary and Secondary Education Act (ESEA) would be level-funded under this proposal, and that the Administration’s “intent is to fully fund Title I.” But Title I would only be level-funded as compared to a previous short-term spending resolution, not the final FY 2017 appropriations level. DeVos also said that the President’s budget would increase spending for the Individuals with Disabilities Education Act (IDEA), despite conflicting numbers from the Office of Management and Budget which say IDEA would take a significant hit.

When asked by Senators about cuts to several programs including Career and Technical Education grants to States, DeVos said that these changes should be considered part of a series of broader steps to streamline higher education programs in general. The Secretary insisted that proposed cuts in the budget came about because the programs were duplicative of other federal efforts, and that “right now we have a lot of efforts that really overlap.”

Final program appropriations for FY 2017 as compared to the President’s FY 2018 budget request are as follows (note that these numbers are different than the contrast quoted by Secretary DeVos since the administration compares its numbers to the temporary FY 2017 Continuing Resolution in place earlier this year):

Appropriation (in thousands of dollars)
Program / Final FY 2017 / President’s FY 2018 Request / FY 2017 as compared to FY 2018 Request
ESEA Title I Grants / $15,459,802 / $14,881,458 / -$578,343
ESEA Title II (Teacher Quality) / $2,055,830 / $0 / -$2,055,830
ESEA Title III (English Language Acquisition) / $737,400 / $735,998 / -$1,402
Education Innovation and Research / $100,000 / $370,000 / $270,000
Impact Aid / $1,328,603 / $1,236,435 / -$92,168
21st Century Community Learning Centers / $1,191,673 / $0 / -$1,191,673
Charter School Grants / $342,172 / $500,000 / $157,828
Student Support and Academic Enrichment (Title IV-A) / $400,000 / $0 / -$400,000
Promise Neighborhoods / $73,254 / $60,000 / -$13,254
IDEA Part B State Grants** / $12,002,848 / $11,890,202 / -$112,646
IDEA Part C Grants / $458,556 / $457,684 / -$872
CTE State grants / $1,117,598 / $949,499 / -$168,099
Adult Education State grants / $581,955 / $485,849 / -$96,106
TRIO / $950,000 / $808,289 / -$141,711
Head Start, including Early Head Start / $9,253,095 / $9,168,000 / -$85,095
CCDBG / $2,856,000 / $2,761,000 / -$95,000
Preschool Development Grants / $250,000 / $0 / -$250,000
**According to ED, IDEA Part B would receive a $112.6 million cut, but the Office of Management and Budget tables indicate a suggested cut of nearly $954 million; it is not clear which number is correct.

Resources:
Andrew Ujifusa, “Senators Hammer at DeVos on Planned Budget Cuts, Proposed Vouchers,” Education Week: Politics K-12, June 6, 2017.
Lydia Wheeler, “Senators Tell DeVos She Has a Tough Job Defending Education Budget,” The Hill, June 6, 2017.
Author: JCM

OCTAE Issues Guidance on Supplemental Wage Info for WIOA Performance

Earlier this month, the Office of Career, Technical, and Adult Education (OCTAE) issued a new program memorandum on the requirements established by the Workforce Innovation and Opportunity Act (WIOA) and its implementing regulations regarding the use of supplemental wage information, when appropriate, to assist in carrying out the performance accountability requirements under section 116 of the law. This new guidance document provides clarification to States on the use of supplemental wage information, when reliance on such information is necessary for verifying and reporting on the following employment-related performance indicators:

  • Employment rate during the second quarter after exit from the program;
  • Employment rate during the fourth quarter after exit from the program; and
  • Median earnings during the second quarter after exit from the program.

To the extent it is consistent with State law, direct Unemployment Insurance (UI) wage match, obtained through either State UI data or the out-of-State wage record data exchange, will be the primary data source for verifying participant outcomes for purposes of calculating levels of performance for the employment-related indicators and will beused when available. When States determine UI is unavailable for those employment-related indicators, acceptable forms of supplemental wage information relevant to the coreprogram, include, but are not limited to, the following:

  • Tax documents, payroll records, and employer records such as:
  • Copies of quarterly tax payment forms to the Internal Revenue Service, such as a Form 941 (Employer’s Quarterly Tax Return);
  • Copies of pay stubs (minimum of two pay stubs); or
  • A signed letter or other information from employer on company letterhead attesting to an individual’s employment status and earnings.
  • Other supplemental wage records:
  • Follow-up survey (self-reported) from program participants;
  • Income earned from commission in sales or other similar positions;
  • Detailed case notes verified by employer and signed by the counselor, if appropriate to the program;
  • Automated database systems or data matching with other partners with whom data sharing agreements exist;
  • One-Stop operating systems’ administrative records, such as current records of eligibility for programs with income-based eligibility (e.g., Temporary Assistance for Needy Families (TANF) or Supplemental Nutrition Assistance Program ( SNAP)); or
  • Self-employment worksheets signed and attested to by program participants.

The timing for collecting supplemental wage information may vary based on whether the agency knows or expects that UI wage data will not be available for a participant following the exit froma program. The need for supplemental wage information for some individuals may not become apparent until no match is found in direct UI wage records, or in federal or military employment records,which become available on a time-lagged basis. UI wage data for the employment rate and the median earnings indicators during the second quarter will not become available until the latterpart of the third quarter after exit, and UI wage data for the education or employment rate during the fourth quarter after exit will not become available until the latter part of the fifth quarter afterexit.

However, when the agency knows or predicts that UI wage data will not be available for individuals, States do not need to wait two quarters following the close of the second and fourth full quarters after exit to formally document that UI wage data are not available and begin collection of supplemental wage information. The optimal time to collect supplemental wage information, according to the guidance, is as soon as possible following the close of the second and fourth full quarters after exit.

OCTAE recognizes that programs and States may consider supplemental wage information to be a very difficult aspect of data collection, particularly since it is sometimes difficult to follow up in a way that produces valid and reliable results (e.g., conducting follow-up surveys or other forms of self-reporting). The process includes determining which individuals should be included in the supplemental wage information follow-up; locating the individual, employer or case manager; securing his/her cooperation; and conducting the follow-up procedure. Maintaining contact with, or finding, these former participants and getting them to cooperate in the supplemental wage information follow-up process is critical to its success since the response rate largely determines the validity of the information. The program memorandum includes some draft procedures to assist States in collecting valid supplemental wage information in a timely manner.

Author: SAS

News

Additional Staff Hires at ED

The U.S. Department of Education (ED) announced additional staff hires earlier this week, one of which requires Senate confirmation.

President Donald Trump has nominated Peter Oppenheim to serve as the Assistant Secretary for Legislation and Congressional Affairs – only the second Senate-confirmable position to be filled at ED, with the first being Carlos Muñiz as General Counsel. Before being hired, Oppenheim served as a top aide to Senator Lamar Alexander (R-TN), who is the Chairman of the Senate Committee on Health, Education, Labor, and Pensions. Oppenheim was significantly involved in drafting the Every Student Succeeds Act and is reportedly skilled in working across the aisle with Democrats. Administration officials say they will utilize his ability to work in a bipartisan manner, especially when it comes to selling the President’s fiscal year 2018 budget request.

Two other hires this week that do not require Senate confirmation include Kimberly Richey as the Deputy Assistant Secretary for Special Education and Rehabilitative Services and Adam Kissel as the Deputy Assistant Secretary for Higher Education Programs. Richey previously served as the interim Chief Advocacy Officer for the National School Boards Association, as well as the General Counsel for the Oklahoma Department of Education. In addition, Richey worked at ED from 2004 to 2009 as a counselor to the Assistant Secretary of the Office for Civil Rights and as the Acting Chief of Staff in the Office of Legislative and Congressional Affairs.

Kissel previously worked for the Foundation for Individual Rights in Education, where he took aim at sexual assault policies at colleges and universities arguing that some favor the accuser over the accused. He also has been a strong proponent for First Amendment rights at institutions of higher education and has accused some colleges and universities violating students’ and faculty members’ free speech rights. The addition of Kissel to ED’s team could signal an interest in undoing the Obama Administration’s policies on campus sexual assault.

Ranking Member of the Senate HELP Committee Patty Murray (D-WA) condemned Kissel’s hiring this week. “I am deeply troubled this hire is another concerning sign that President Trump plans to make it more difficult for survivors of campus sexual violence to get justice. Campus sexual violence is an urgent public health threat nationwide, and rolling back steps that have empowered more survivors of sexual violence to come forward will only send this problem back into the shadows,” she said. “If there was ever a President who needed to takeissues of sexual assault more seriously, it's President Trump—and this is yet another indication his Administration is falling disturbingly short."

Resources:

Alyson Klein, “Trump and DeVos Announce New Hires at Education Department,” Education Week: Politics K-12, June 6, 2017.

Andrew Kreighbaum, “DeVos Appoints First Amendment Advocate to Key Position,” Inside Higher Ed, June 6, 2017.

Author: KSC

Financial Aid Data Retrieval Tool Partially Restored

The U.S. Department of Education (ED) announced Friday that the Internal Revenue Service Data Retrieval Tool (DRT), which makes filling out income information on financial aid forms easier, has been restored for student loan borrowers applying for an income-driven student loan repayment plan.

The DRT had been shut down earlier this year following privacy and security concerns, but ED said today that additional encryption protections have been added in order to protect taxpayer information. Under the new protections, the tax return information being transferred will now be encrypted and hidden from view on the IRS data retrieval tool web page and on the income-driven repayment plan application.

The tool is still not available for use on the Free Application for Federal Student Aid (FAFSA), however, ED said that it will be back up and running for use on the FAFSA by October 1, 2017 – in time to be utilized for the 2018-2019 federal financial aid year.

Resources:

U.S. Department of Education Press Release, “Data Retrieval Tool Available for Income-Driven Repayment Plan Application,” June 2, 2017.

Author: KSC

To 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 .

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 2017

Contributors: Julia Martin, Steven Spillan, Kelly Christiansen