LDA Legislative News – October 2017

OSERS Recinds Outdated Guidance

In February, the president issued Executive Order 13777 establishing a Regulatory Reform Task Force to evaluate existing regulations and make recommendations regarding “repeal, replacement, or modification.” As part of this process, the Office of Special Education and Rehabilitative Services (OSERS), U.S. Department of Education has undertaken a review of non-regulatory guidance documents. In the first phase of its review, OSERS has announced rescission of 72 documents deemed “outdated, unnecessary, or ineffective.”

Of the rescinded documents, 63 were from the Office of Special Education Programs (OSEP) and the remaining 9 from RSA (Rehabilitative Services Administration). No regulations were affected, and OSERS Acting Assistant Secretary Kim Richey also stated none of these documents affect OSERS policies. Rather, Richey says, these documents are outdated or superseded by more recent guidance or changes in the law and regulations.

OSEP has never undergone a purge of guidance documents, even after reauthorizations of the Individuals with Disabilities Education Act (IDEA) or subsequent release of new regulations. Some of these documents date as far back as the 1980s, and the newer iterations of the law and regulations have long since replaced them.

These documents represented several broad categories of information. First were annual programmatic memos regarding specific submissions due from states. Since both the information and deadlines were long since past, these memos were eliminated. Second were specific grant requirements, which have been replaced by a uniform set of requirements. A third group represented guidance issued after IDEA reauthorizations as assistance for interim implementation and which became obsolete with release of the new regulations. Another set of documents were transmittal memos giving notice to the public of specific information, such as release of regulations. Finally there were memos related to other statutes affecting students with disabilities where the underlying regulations have changed or deadlines for action have passed.

The disability community has expressed some concerns that the Department was not transparent enough up front about the purpose of this document review. In fact, stakeholders did not know what documents were included until OSERS released a recent list with reasons for the rescissions. Some parent groups also have noted that even “outdated” documents that contain accurate information may continue to help inform families about key areas of the law. Suggestions have been made about how this process going forward can be improved to ensure stakeholders are aware of any changes proposed.

The Department is now engaged in the second phase of work for the Regulatory Reform Task Force. LDA was one of over 16,000 organizations and individuals who submitted comments to the Department regarding what, if any, regulations should be repealed, replaced, or modified. LDA, along with many other partner organizations, expressed deep concern about any attempts at this time to alter IDEA regulations. OSERS received over 1,000 of the total 16,000-plus comments and, with all other offices in the Department, is in the process of analyzing those recommendations. LDA and other stakeholders expect to be apprised of next steps once this analysis is completed.

Proposed Education Grant Priorities Released

On October 12, the U.S. Department of Education published 11 proposed priorities and related definitions which would be used in competitions for education grants. Priority #1 mirrors what the president and Secretary of Education have advocated since the new Administration began – projects emphasizing access to private schools using public funds, characterized as “school choice.” LDA has stated clearly its support for public funds for public schools. The LDA position acknowledges families’ rights to private education, at their own discretion and expense, and private school placement through IDEA procedures at public expense, as appropriate.

The Department sends out around $700 million in competitive grants to universities, non-profits, and individuals to develop model programs, research, and best practices in education. Grant applications designate the various priorities as absolute, competitive preference, or invitational. Applicants must address absolute priorities and are given competitive preference for addressing priorities so designated. Invitational priorities represent areas in which the Department is interested, but do not provide the applicant with any competitive edge.

Following is a brief description of the types of projects that would be supported by the other ten proposed priorities:

  • Priority 2: Focuses on “fostering a more favorable environment for innovation by reducing red tape and streamlining regulations and other requirements….”
  • Priority 3: Highlights competency-based learning and linking education and the workforce, including developing pathways to postsecondary credentials.
  • Priority 4: Fosters knowledge about civic participation, developing work skills such as relationship building, problem-solving, perseverance, and financial literacy.
  • Priority 5: Focuses on high-quality educational opportunity for students with disabilities, including improving academic, functional, and social and emotional outcomes, and skill building toward independent living. The priority also addresses opportunities for students with gifts and talents, especially those not traditionally served in such programs.
  • Priority 6: Addresses STEM education, including increasing educator preparation, expanding access to computer science coursework, expanding partnerships with business and higher education communities, and making digital learning and materials more accessible.
  • Priority 7: Promotes literacy as a foundation for learning, including promoting evidence-based literacy interventions for school and home, using data to inform instruction, and integrating literacy instruction in all content areas.
  • Priority 8: Supports a stronger educator workforce through new career pathways, looking at educator diversity, increasing the number of students with access to effective teachers and school leaders, and recruiting individuals in other fields to education.
  • Priority 9: Supports greater family engagement, creates alternative paths to regular high school diplomas and workforce credentials, and increases the number of children entering kindergarten ready for school.
  • Priority 10: Focuses on improving the school climate and ensuring schools are “physically and disciplinarily safe for students to learn.”
  • Priority 11: Promotes projects designed to address the academic needs of military- or veteran-connected students.

The notice also includes key definitions that will be used with the priorities. Terms defined include “children or students with high needs” and “educational choice.”

As required, the Department is soliciting comments, due November 13, on the proposed priorities. LDA will participate in this opportunity to provide feedback to the Department. To read all the details of the proposals, go to https://www.gpo.gov/fdsys/pkg/FR-2017-10-12/pdf/2017-22127.pdf. Comments may be submitted at https://www.regulations.gov/comment?D=ED-2017-OS-0078-0001.

Report Highlights Students’ Behavioral Health Needs

Disrupting School-Justice Pathways for Youth with Behavioral Health Needs, a new technical assistance document from the National Center for Mental Health and Juvenile Justice and the National Council of Juvenile and Family Court Judges, with support from the Office of Juvenile Justice and Delinquency Prevention (U.S. Department of Justice), focuses on a multidisciplinary approach to youth behavioral health needs known as the School Responder Model (SRM). The 1990s zero-tolerance policies disproportionately impacted students with disabilities, resulting in exclusionary policies and school-based arrests. SRMs have shown to be effective in keeping young people with behavioral health challenges in school and away from the juvenile justice system.

Data from the Office for Civil Rights, U.S. Department of Education, show students with disabilities are twice as likely to be subjected to out-of-school suspension as students without disabilities. Suspension and expulsion very often put students on a trajectory toward the juvenile justice system. National data indicate 48% of elementary and middle students and 73% of high school students classified with emotional disturbance under the Individuals with Disabilities Education Act (IDEA) had been suspended or expelled at least once, rates significantly higher than students with other disabilities and students without disabilities. According to the Office for Civil Rights, students with disabilities, who represent around 12% of the total student population, account for 25% of students arrested and referred to law enforcement in schools.

In 2008, the Mental Health/Juvenile Justice Network began development of the School Responder Model to break the cycle of youth with behavioral needs moving into the juvenile justice system. This new report lays out the key components of an SRM, using examples from Connecticut and Ohio that have successfully adapted the original model. Use of data, stakeholder engagement, developing a shared vision, and other critical issues are detailed, as well as a extensive list of resources and references.

LDA members and other interested readers working to keep students in schools and out of the school-to-prison pipeline will want to check out the report at http://www.ncjfcj.org/sites/default/files/NCJFCJ_SJP_ResponderModel_Final.pdf.

Education Department ‘Politicals’ Still Not in Place

The U.S. Department of Education normally has around 200 political appointees running the everyday activities of the agency, compared to perhaps 50 in several larger agencies. The Education politicals – again unlike some other agencies – have always led the real policy work at the Department. With the Administration focused on downsizing the government, it is unclear when or if many of these open positions will be filled, and some career employees may find themselves reassigned to take up the slack.

Currently several of the Assistant Secretary positions are held by Deputy Secretaries in an “acting” capacity. In fact, there is only one Assistant Secretary (Office of Management) in place with all other offices – including, among others, the Offices of Special Education and Rehabilitative Services (OSERS), Elementary and Secondary Education, Postsecondary Education, and Civil Rights – waiting to be filled. The Office of Special Education Programs (OSEP) also currently is led by an Acting Director, Ruth Ryder. No permanent director has been nominated as yet.

Just recently the Administration announced several new nominations for Assistant Secretary positions. These positions require Senate confirmation.

  • James Blew – Office of Planning, Evaluation, and Policy Development.
  • Timothy Kelly – Office of Career, Technical, and Adult Education.

Several other individuals have been nominated or hired, as well.

  • Mitchell Zais – nominated as Deputy Secretary.
  • Michael Wooten – hired as Deputy Assistant Secretary for Career, Technical, and Adult Education.
  • Leonard Haynes – hired as Senior Advisor to the Under Secretary.

With fewer competitive discretionary grants from the Department and a policy to move as much as possible to the states, it is likely a number of positions will go unfilled. The Administration has also expressed its desire to reduce regulations and guidance and perhaps fewer reports and evaluations, also signaling possibly a need for fewer personnel.

LDA will keep you updated on the status of any new personnel joining the Department. In the meantime, the organization is working closely with the current staff.

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