LDA Legislative News – May 2015

graduationGrad Rate for Students with Disabilities Still Lags

According to the 2015 Building a Grad Nation report, students with disabilities graduated high school in 2012-13 at a rate 20 percentage points below the national average.  While this is an increase of 2.9 points since 2010-11, this is still a startling gap when most students with disabilities, including students with specific learning disabilities, are in the regular classroom being taught the general education curriculum.  

Produced annually for the last six years by the Alliance for Excellent Education, America’s Promise Alliance, Civic Enterprises, and the Everyone Graduates Center (Johns Hopkins University), the report indicates high school graduation hit a record high 81.4 percent in 2012-13.  With a goal of 90 percent graduation by 2020, the report notes achieving that goal will require only 310,000 more graduates in the class of 2020 than in the class of 2014. Around 122,000 or 40 percent more students with disabilities will have to meet graduation requirements in order to meet the 90 percent graduation rate in 2020.

According to the authors, 85 to 90 percent of students with disabilities should be able to graduate with a regular diploma given the proper supports.  The report cites challenges facing this population of students, including the disproportionate identification of students of color and the high discipline rates resulting in suspensions and expulsions.  In addition, disparities exist in State requirements and definitions for students with disabilities, while some students still are not receiving appropriate education to prepare them for postsecondary education or employment.

According to the National Center for Education Statistics, students with disabilities have the second lowest graduation rate of any subgroup, with English learners the only group with a lower rate.  The range of graduation rates across States is also staggering with a high of 80.4 percent in Arkansas and a low of 22.5 percent in Mississippi.  However, since States determine their own graduation requirements with wide variation across States for students with disabilities, cross-State comparisons are difficult and perhaps not always accurate. 

The report includes policy recommendations to address the low graduation rate for students with disabilities.  The authors suggest the U.S. Department of Education “ensure consistency and comparability in graduation rate” at the State and federal levels.  They recommend also that a standard diploma be made available to all students, limiting options for students with disabilities to meet that goal.  Finally, the report cites the need to shine a brighter light on disproportionality issues, including better and more public reporting on over-identification and discipline data.

Click here to read the full report.


2016_budget_headerSpending Committees Losing Ground

The House and Senate Appropriations Committees, charged with determining which federal programs will receive funding and how much, once again face tough choices as budget caps shrink.  With the passage of the Budget Control Act of 2011, Congress put in place decreasing caps through federal fiscal year (FY) 2021.  The Ryan-Murray budget deal gave Congress a reprieve from the tight caps for FY 2014 and FY 2015, but reality now sets in for FY 2016, beginning October 1, 2015.   

The Labor-Health and Human Services-Education Appropriations Subcommittee deals with programs of greatest concern to LDA members – education, labor, and health.  The House Subcommittee has received an allocation for FY 2016 which is 2.4 percent below the current spending levels.  The Senate Subcommittee’s allocation would cut 2.3 percent from FY 2015 spending.  Funding programs at just current levels of spending would be considered a cut, factoring in inflation and rising costs of doing business. 

Both House Appropriations Chairman Hal Rogers (R-KY) and Labor-HHS-Education Subcommittee Chairman Tom Cole (R-OK) have expressed concerns that the budget caps will not allow them to adequately address program needs.  Similarly Senate Chairman Thad Cochran (R-MS) and Subcommittee Chairman Roy Blunt (R-MO) are also struggling with the situation.  In the Senate, Ranking Appropriations member Barbara Mikulski (D-MD) offered alternative allocations for all the appropriations subcommittees, which were not accepted by the full Appropriations Committee.  Mikulski has said her staff will work on the substance of the bills, but will filibuster any bills that reach the floor below the pre-Budget Act levels.  

The bottom line is that once again it appears nearly impossible for Congress to complete work on the spending bills before the end of FY 2015 on September 30.  The most likely scenario if bills are not finalized by that date is another Continuing Resolution to keep the government operating until the bills are settled.  Advocates and many members of Congress hope that “Ryan-Murray, 2.0” might be negotiated to ease the budget caps and allow for more realistic spending and more rational ways to curb the federal deficit.


ed-tech-companies-have-voiced-support-for-stronger-privacy-protection-fo_1227_676117_0_14101854_300Student Data Privacy Takes Center Stage

A number of bills have been introduced in Congress to address various aspects of privacy of student data.  Some of the bills are focused on stricter regulation of online service providers and ensuring student data cannot be misused.  Other bills would amend or rewrite the Family Educational Rights and Privacy Act (FERPA), which protects student privacy and includes procedures for safeguarding, releasing, correcting, and destroying student data and allows parents rights to access and amend data.  Following is just a brief of summary of what is some very complex legislation.   

The Student Digital Privacy and Parental Rights Act, sponsored by Representatives Messer (R-IN) and Polis (D-CO), targets online service providers that serve States and local school districts. Companies would be required to release what types of personal information they collect or generate, how it is used, and whether they share those data.  The bill also bans advertising and marketing to students based on private information collected by the companies.  Unlike the other privacy bills, the Messer-Polis bill is focused on regulation and enforcement of these companies under the Federal Trade Commission Act. 

House Education and Workforce Chairman Kline (R-MN) and Ranking Member Scott (D-VA) are soliciting comments on a discussion draft that would rewrite FERPA, including addressing some of the concerns in the Messer-Polis bill.  The Kline-Scott bill is directed at school districts, States, “offline” contractors, such as school catering services, and “online” providers that do not market services specifically to schools but are services schools might use.  A number of current FERPA provisions are updated to address new technology and changes in some definitions, including expansion of “school records” to include data collected or maintained by online providers.  This bill also bans advertising and marketing and prohibits districts and States from contracting with online companies that use data for the “development and of commercial products or services.”  Penalties for FERPA violations go beyond the current loss of federal funding to the imposition of significant fines if students are “harmed,” with no definition of that term in the bill. 

Senator Vitter (R-LA) has introduced the Student Privacy Protection Act.  The bill would restrict who has access to student data and what information is allowed to be released.  Parental consent would be required for release of data, including “personally identifiable information” and “directory information,” to a third party.  Before receiving that consent and at least a month before data are released, the district would have to provide parents with a notice of what data will be released, parents’ right to access and correct data, and information on third party liability for violating the rules.  The Vitter bill would also prohibit the use of funds provided to the Department of Education for collecting and maintaining records on students’ activities through their educational career or for career tracking.  Any data collected for State longitudinal data programs would have to be “aggregated, anonymized, and de-identified.”  

The Protecting Student Privacy Act of 2015, sponsored by Senators Markey (D-MA) and Hatch (R-UT), would amend FERPA.  This bill requires data security safeguards be in place to protect student data maintained by private providers.  It also prohibits the use of these data to advertise or market products or services.  The bill addresses transparency of parties with access to student data and would limit the amount of personally identifiable information that could be transferred to those parties. 

The Individuals with Disabilities Education Act (IDEA) incorporates by reference the provisions of FERPA and is very clear about parents’ rights regarding inspection and review of records.  LDA will be monitoring the debate on this issue and will be updating you as the process moves forward.


Federal-Register-logoFinal IDEA Maintenance of Effort Regulations Issued

In September 2013, the Secretary of Education published a Notice of Proposed Rulemaking (NPRM) seeking to amend the regulations governing the IDEA maintenance of effort (MOE) requirements.  After considering and acting on over 300 public comments, the Department issued the final rule (Fed. Reg., Vol. 80, No. 81, Part II, April 28, 2015), which takes effect on July 1, 2015.  The changes address the compliance and eligibility standards for local school districts regarding MOE, the level of effort required by a school district in a year after MOE was not maintained, and consequences for failure to maintain MOE.  

The amended provisions on district eligibility for an award require the State to determine that the district budgets at least the same amount from one of four specified sources as it spent from the same source for the most recent fiscal year for which information is available.  The four sources are (a) local funds only; (b) combination of State and local funds; (c) local funds only on a per capita basis; and, (d) combination of State and local funds on a per capita basis.  These provisions also now allow a district to take into consideration, to the extent information is available, exceptions and adjustments taken in the “intervening year or years” between the budgeting and comparison years and those the district “reasonably expects” to take in the budgeting year. 

A school district will meet the compliance standard if it does not reduce its level of expenditures (from at least one of the four sources) below the level of those expenditures from the same source for the preceding fiscal year.  The Department of Education clarifies school districts may change the method used to meet the eligibility or  compliance standard from year to year.  In addition, the district is not required to use the same method to meet the compliance standard in a fiscal year that it used to meet the eligibility standard in that same year. 

A key addition to the regulations codifies a Department of Education interpretation on MOE adopted in April 2012.  The same interpretation was announced in the Fiscal Year (FY) 2015 and FY 2015 appropriations acts passed by Congress.  The rule states that in the fiscal year following a year in which the school district failed to maintain effort, the level of effort the district must meet is the level that would have been required had the district maintained effort rather than the district’s actual reduced level of expenditure. Since this rule has been the interpretation since 2012, the Department of Education expects States and districts have been complying with this provision since FY 2012-13.  Therefore, this addition to the regulations simply codifies what is current interpretation and practice. 

The new provisions also codify the longstanding practice regarding returning funds to the Department.  The reason for including this specifically is to ensure States and districts are aware of the consequences of a district’s failure to meet the MOE compliance standard.  The regulation clarifies if a district fails to maintain its level of expenditures, the State is liable in a recovery action for the amount by which the district failed to maintain the level of expenditures in that fiscal year or the amount of the district’s Part B subgrant in that fiscal year, whichever is lower. 

Click here to read the final rules and all the comments and discussion.


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