News-in-Brief – July 2012

Department Clarifies Impact of Sequestration

Questions abound about the potential impact of sequestration, the across-the-board cut of approximately nine percent in most non-defense and defense discretionary programs set to occur on January 2, 2013, right in the middle of the 2012-13 school year. These cuts are designed to reduce the federal deficit and could have long-term serious effects on education and all other federal programs. For IDEA, Title I, and Career and Technical Education, the potential impact would be even greater due to the way funds are distributed in these programs. The U.S. Department of Education has just issued a memo to state superintendents clarifying that, should the across-the-board cuts be implemented, no funds will be cut from school districts’ School Year 2012-13 allocation.

The budgeting for special education is very complicated. Like most education programs, IDEA is “forward funded.” This means that funds allocated in federal Fiscal Year 2013 (begins October1, 2012) are distributed to school districts in July 2013 for School Year 2013-14. However, IDEA also receives “advanced” funding. These funds were allocated in Fiscal Year 2012 and become available to school districts in October 2012. None of these October “advanced” appropriations would be cut in January 2013 if sequestration goes forward.

Some states have already told school districts to hold back on spending for School Year 2012-13 because of the possibility of sequestration. Texas was the first to do this. The Texas Education Agency (TEA) informed its school districts that “in light of possible sequestration, TEA will withhold 10 percent of the state’s expected appropriations from the LEA’s planning amount calculations. Once any legislation rescinding sequestration is passed and signed into law, or once the Office of Management and Budget (OMB) makes its determination of how the sequester is to be accounted for across the federal agencies, maximum entitlements will be calculated and made available to LEAs based on the actions taken by federal agencies” (Memo, May 29, 2012). The recent U.S. Department of Education memo clarifies that this scenario, reduction mid-year of 2012-13 school year funds, is not the correct interpretation of what will occur with sequestration.

While this may all sound like a lot of confusing budget double-speak, in fact sequestration is the current law. Unless Congress acts affirmatively to change this situation, these across-the-board cuts will go forward.

LDA is actively involved in the NDD (Non-Defense Discretionary) Summit, a large coalition of organizations representing every sector of federal programs except defense. The coalition just sent a letter to all members of Congress with 3,000 signatures, including LDA and a number of LDA state affiliates, requesting Congress to find a better, more balanced approach to deficit reduction that would not cause the potential harmful effects of sequestration.

Senator Harkin (D-IA), chairman of both the Senate Health, Education, Labor and Pensions (HELP) Committee and the Labor-Health and Human Services-Education Appropriations Subcommittee, has scheduled a hearing this month on the impact of sequestration specifically on education programs. In addition a large rally will take place near the Senate office buildings with Senator Harkin and other members of Congress to draw attention to this serious issue. LDA will be well-represented at both events, along with our partners in the education and disability communities, and will convey the organization’s concern about any cuts in funding to education, health, job training and all other government functions that affect individuals with specific learning disabilities.

LDA Joins Opposition to Controversial “Highly Qualified” Provision

The No Child Left Behind Act (NCLB), enacted in 2001 as the current version of the Elementary and Secondary Education Act (ESEA), includes a definition of “highly qualified teacher.” Subsequently in the 2004 reauthorization of the IDEA, Congress added a definition of “highly qualified special education teacher” that incorporated the NCLB language and specific references to special education knowledge. In December 2010, a “stealth” amendment was passed on an omnibus appropriations bill allowing individuals just enrolled in alternative certification programs to be considered “highly qualified.” Now the majority of the House Labor-Health and Human Services-Education Appropriations Subcommittee wishes to extend this provision beyond its October 2012 expiration date, possibly making it permanent in the next reauthorization of the ESEA.

LDA has joined in the Coalition on Teaching Quality with 88 other national and state education, civil rights, and religious organizations to fight this major policy shift. The coalition worked hard and was successful in preventing an extension of this provision in the Senate Labor-HHS-Education Appropriations subcommittee bill passed in June. However, the House subcommittee voted on July 18 to extend this provision. The coalition’s job now is to work to prevent this provision from becoming part of the final Labor-HHS-Education bill.

The amendment, based on a regulation issued by the previous administration, was challenged by low-income minority parents in California whose children were subjected to teachers labeled as “highly qualified.” In September 2010, the Ninth Circuit Court of Appeals held the regulation was unlawful because it directly conflicted with the requirements of the No Child Left Behind Act:

“The ‘precise question at issue’ is the difference between the meaning of “has obtained” full State certification in the statute…and the meaning of “demonstrates satisfactory progress toward” full State certification in the [U.S. Department of Education] regulation…The difference between having obtained something and merely making satisfactory progress toward that thing is patent. We conclude that the Secretary’s regulation impermissibly expands the definition of “highly qualified teacher” … by including in that definition an alternative-route teacher who merely ‘demonstrates satisfactory progress toward’ the requisite ‘full State certification.'” Renee v. Duncan, 623 F.3d 787 (9th Cir. 2010).

In May 2012 the Ninth Circuit reaffirmed its reasoning, concluding that, even though the regulation was enacted, the Court will consider the challenged regulation again unlawful if raised again when it expires on September 30, 2012.

The coalition is not opposed to alternative routes to teacher certification. Rather the coalition sees this as a policy question regarding whether individuals who have not completed the programs can be called highly qualified and whether they should be concentrated in high-need schools. Further, the coalition sees this as an opportunity to have a real debate about what standards teachers should have to meet on the first day they enter their classrooms.

The appropriations process will not be settled before the end of the current fiscal year (September 30, 2012). This may allow the coalition additional time to work for the expiration of this provision. However, even if the provision expires, it most likely will be raised in the next Congress when the ESEA reauthorization discussions begin again.

Days Dwindle To End of Congressional Session

As the end of federal Fiscal Year 2012 draws near, Congress is far from completing the process of setting appropriations, or spending, levels for the new fiscal year. Fiscal Year 2013 begins on October 1, 2012. Thus far the House has passed seven of the 12 appropriations bills, and the Senate has passed none. Beginning on July 24, the House will be in session only 15 more days before the start of FY 2013 and prior to the election and the lame duck session.

The Labor-Health and Human Services-Education appropriations bill includes funding for many of the programs that directly affect individuals with specific learning disabilities. The status of that bill is still up in the air.

The Senate Appropriations Committee voted on a Labor-HHS-Education bill in June, but it has not reached the full Senate. The House Subcommittee passed its bill on July 18; however, it is unlikely the bill will be considered in the full Appropriations Committee, much less get a floor vote. Even if the two bills were passed by their respective chambers, there is a $7 billion difference in overall spending. This vast divide would make a compromise very difficult, if not impossible. In addition, the House does not release the program by program numbers until bills clear the full Appropriations Committee. Thus, there are only preliminary numbers from the House subcommittee for comparison.

The bottom line is that once again Congress will have to pass a Continuing Resolution (CR), a bill to keep government agencies operating until Congress finalizes funding for FY 2013. A CR can maintain the current fiscal year’s funding levels or impose cuts on some or all programs. In addition, the CR could just be passed for the short term until the lame duck session meets after the election. However, Congress may also pass a longer term CR that goes into the new year. Much depends on the results of the upcoming elections.

Both bills include proposed increases for IDEA-Part B. However, as an example of the differences in funding, the Senate committee bill includes an additional $100 million, and the House proposes an increase of $500 million. Funding for the preschool program would be frozen under both bills. The Part C program is increased by $20 million in the Senate bill, but would receive no increase in the House. Title I of ESEA got an increase of $100 million in the Senate bill, but no increase in the House bill.

Congress will be on recess through the entire month of August until after Labor Day. They will be in session for part of two weeks in September, and will then be in recess again until after the election in November. The lame duck session could prove very interesting. LDA will be your eyes and ears in Washington and keep you posted on any activity.

Thirty-Two States Now Have ESEA Waivers

Six states (Arizona, Kansas, Michigan, Mississippi, Oregon, South Carolina) and the District of Columbia just got approval for their requests for waivers from some of the requirements of the No Child Left Behind Act (NCLB). Thirty-one states and Washington, DC, now have received waivers and in exchange will develop plans to ensure all students are college- and career-ready, focus assistance on students with the greatest needs, and address teacher and administrator evaluation and support. Five states are still awaiting approval of their waiver requests, including California, Idaho, Illinois, Iowa, and Nevada. The remaining 13 states and Puerto Rico thus far have not requested waivers or withdrawn earlier requests. Since Congress still has not reauthorized the Elementary and Secondary Education Act (known currently as NCLB), the U.S. Department of Education moved ahead last year to begin the waiver process. This action was controversial in political circles, with some members of Congress saying that the Department had overstepped its authority and others viewing the waivers as diluting the urgency to reauthorize the law. Whichever or whether any of these concerns are accurate, states seem to view the waivers as a way to loosen some of the more burdensome provisions of the law and are moving forward to implement the new waiver requirements. Information about individual state requests and letters to states from the U.S. Department of Education may be found at

Governors Association Chair Announces Initiative

The new chair of the National Governors Association (NGA), Governor Jack Markell of Delaware, has announced a year-long initiative, “A Better Bottom Line: Employing People with Disabilities.”  Read the PDF  This project will focus on the employment barriers facing individuals with disabilities and the role of state governments and the business community in addressing these challenges. Just days before assuming the NGA chairmanship and announcing this initiative, Governor Markell signed a bill into law in Delaware that mirrors the theme and focus of the Better Bottom Line initiative. As part of this project, Governor Markell, a Democrat, has joined forces with Republican Representative Pete Sessions (TX), co-chair of the Congressional Down Syndrome Caucus, to announce a public-private partnership to remove obstacles to employing people with disabilities. Senator Tom Harkin (D-IA), chair of the Senate Committee on Health, Education, Labor and Pensions, is another strong congressional supporter of this effort. A particular focus of the Better Bottom Line is on individuals with significant intellectual and developmental disabilities, who may require supports such as job coaches and personal attendants in order to live and work in the community. LDA is looking at how this initiative can also enhance opportunities for individuals with specific learning disabilities and at developing a partnership with the NGA to make this happen.

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