LDA Legislative News – September 2019

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Appeal Dismissed in COPAA v. DeVos

On March 7, 2019, the U.S. District Court for the District of Columbia ruled the  U.S. Department of Education engaged in “illegal delay of a legal regulation” related to significant disproportionality in special education.  That ruling was the result of a 2018 suit by the Council of Parent Attorneys and Advocates, Inc. (COPAA) against the Department to enforce implementation of the 2016 regulation.  Now the Department of Justice has dismissed the Department of Education’s appeal of the March ruling, ending the Department’s attempts to delay or derail the regulation.

After delaying the original Obama-era regulation, the current Administration initially said the Department would issue a new proposed regulation in February 2019.  That date came and went.  In July 2018, while waiting for Department action, the Council of Parent Attorneys and Advocates (COPAA), represented by the National Center for Youth Law, filed suit against the Department of Education alleging the Department’s delay violated the Administrative Procedures Act (APA). Specifically, the suit alleged the Department had taken actions that interfere with its obligation under the Individuals with Disabilities Education Act (IDEA) to ensure students with disabilities receive needed education services in the most appropriate setting without regard to students’ race.

LDA strongly opposed the Department’s proposed implementation delay in a letter to the Department in response to its request for public comment.  In that letter the organization stated, “LDA recognizes the longstanding concerns around the issue of significant disproportionality, especially in regard to identification of students of color in the category of Specific Learning Disabilities. However, we view special education eligibility as only one of a number of factors contributing to what is a much larger systemic education issue that cannot be addressed solely through these regulations. That said, LDA believes we must begin to move forward with a concerted effort to address significant disproportionality. Such an effort involves states and local school districts using the same tools and measurements to determine the extent of the problem and to make necessary changes to reverse the continuing pattern of disproportionality.  It also involves districts examining discriminatory discipline policies which often have a negative impact on students with learning and other disabilities.  Therefore, we oppose any delay in implementation of these regulations.”

LDA’s advocacy, along with that of many partner organizations in special and general education and the civil rights community, has resulted in a positive outcome for students with learning and other disabilities.  States will now move forward using a uniform methodology to ensure all students are appropriately identified and served.

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Congress Stuck on FY 2020 Funding

With different philosophies on federal spending, the House and Senate have approached funding for Fiscal Year 2020 (School Year 2020-21), which begins on October 1, 2019, in a very different way.  With very tight funding caps back in place for FY 2020 and FY 2021, the House decided to move forward in the spring and summer, even without a deal to lift those caps, passing 10 of 12 appropriations bills, to date passing no FY 2020 bills.

Groups like LDA, whose priority programs lie mostly in the Labor-Health and Human Services-Education Appropriations bill, were elated when the House passed that bill in June.  The bill included large increases for many education programs, including for all parts of the IDEA.  In fact, the House bill provides about $4.4 billion above FY 2019 spending for education.

At the same time, Congress worked to craft a new budget deal to lift the final two years of the 2011 Budget Control Act caps.  When the agreement was reached in August, the caps enacted were below the House-passed levels.  Subsequently in early September, Senator Shelby, chairman of the Senate Appropriations Committee, issued the amounts available to each of the 12 appropriations subcommittees. The Labor-HHS-Education bill will receive only a 0.1% increase, a virtual freeze in funding at the current FY 2019 level.  This is the smallest increase provided for any of the 12 bills, despite the fact that Labor-HHS-Education accounts for 30 percent of all non-defense discretionary spending.

The Senate Labor-HHS-Education subcommittee was slated to consider a bill on September 10, but that markup was cancelled.  Now with only a few legislative days left before the end of FY 2019 on September 30, Congress will most likely move to pass a Continuing Resolution (CR) to keep the government operating until they can determine funding levels for the new fiscal year.  This work is severely hampered by the wide discrepancies between the House-passed bills and the low amounts allocated to the Senate subcommittees.  It is likely the CR will go into November or December, with talk again of a full-year CR.

LDA follows the spending discussions very closely and weighs in on priority education, job training, health, juvenile justice, and environmental programs.  School districts will not feel the impact of a CR or possible government shutdown until July, when federal funds are sent to those districts.  However, each month without a resolution, school districts will find it harder to establish their budgets for the 2020-21 school year, work done by districts generally in March and April.

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Proposed Rule Could Deny Families Food Assistance and School Meals

In late July, the U.S. Department of Agriculture (USDA) issued a proposed regulation affecting eligibility for food assistance programs. Approximately 3.1 million individuals would lose benefits under the Supplemental Nutrition Assistance Program (SNAP) and an estimated 500,000 students would lose access to the school breakfast and lunch programs.  One in 5 of all households receiving SNAP benefits include an individual with a disability.  In fact, households with adults with disabilities are affected by food insecurity at a rate three times higher than households without adults with disabilities.  More…

Current law allows states to meet two longstanding bipartisan goals of encouraging work and savings in low-income households through a SNAP policy know as broad-based categorical eligibility (Cat El).  Cat El policies allow states to raise the income eligibility requirements for SNAP, so many low-income working families that have higher expenses for housing or child care that cut into their incomes can receive this important food assistance.  Cat El also allows states to have less restrictive asset tests so families, seniors, and people with disabilities can have modest savings without losing SNAP benefits.  The Cat El option has been supported by Congress for more than 20 years and was most recently upheld again under the bipartisan 2018 Farm Bill.

Children with disabilities who receive free and reduced school meals are entitled to “modifications” of those meals to meet their disabilities under the Americans with Disabilities Act, Section 504, and the IDEA.  This ensures students can access the program without jeopardizing health or other concerns and also ensures children are getting appropriate nutrition to allow them to participate fully in school activities.

LDA is monitoring this proposal closely, as it could have a serious detrimental effect on LDA members and their families, both adults and school-aged children with learning disabilities.  For families already facing the challenges of disability, including often higher health care costs, food insecurity is an area where the federal government can and should continue to provide supports.

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‘Public Charge’ Rule to Take Effect October 15

Last fall the U.S. Department of Homeland Security proposed a change in the “public charge” immigration regulation, evoking negative reactions from a record number of commenters.  Despite that, the Department finalized the new rule which will take effect on October 15 and affect approximately 26 million people across the country, directly or indirectly.  Among the people most adversely affected may be individuals with disabilities reliant on public benefits for daily living.

The crux of the public charge regulation is the government’s weighing of what public benefits an individual seeking to be in the country permanently might require and whether to allow permanent status based on that equation.  This is a prospective rule, affecting new individuals applying to enter the United States or applying to be legal permanent residents.  It does not apply to people currently with green cards, refugees and asylees, and several other special categories of individuals.

The new rule creates a dramatically different definition of this longstanding policy.  A number of new weighted factors will be considered in whether or not a person will be a public charge, creating an “anything above nominal” threshold.  The current rule counts only cash assistance, such as Temporary Assistance to Needy Families and Supplemental Security Income, and long-term institutionalization at government expense.  The new rule expands this list to include the Supplemental Nutrition Assistance Program (SNAP), Medicaid (with exceptions for pregnant women and children under 21), Section 8 housing, and federally subsidized housing assistance.  The new rule also expands cash assistance to include any state and local benefits.

Adults, including those with disabilities, who access Medicaid to help pay for virtually any nonemergency treatment could be considered a public charge if, within the 36 months preceding application for immigration or adjustment of status, the individual has received more than 12 months of coverage.  However, any past use of Medicaid can be considered in determining whether the person will be a public charge.

LDA is concerned about this new rule particularly because of the lack of understanding among families already in the country who have children or adults with disabilities in their households.  As an example, reports are already coming in of families eligible for Medicaid refusing to accept special education services, for fear they will be deemed public charges.  Thus far, we have not been able to ascertain if use of Medicaid in schools will be exempted from counting against a family, although use of Medicaid for non-emergency situations for children under 21 is clearly exempted.

In order to stop the rule from going into effect on October 15, a number of states and several advocacy groups have filed lawsuits.  LDA will continue to monitor this issue for impact on individuals with learning and other disabilities.


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