Use Advanced Terms? Yes No

Using Advanced Search

The Advanced Terms capability of Compliance Expert puts the power of our Lucene-based search engine at your fingertips. It provides you with multiple options for a more powerful and efficient search experience.
About Modifiers and Boolean Search Connectors
Using the term modifiers below, you will be able to construct a rich query to find results for your search.
First, some important background:

A query is broken up into terms and operators. There are two types of terms: Single Terms and Phrases.
A Single Term is a single word such as "test" or "hello".
A Phrase is a group of words surrounded by double quotes such as "hello dolly".
Multiple terms can be combined together with Boolean operators to form a more complex query

Each term can be further revised by a term modifier:

Wildcard Searches

You can perform a wildcard search within a single term, but not within a phrase
The single character wildcard search looks for terms that match that with the single character replaced. For example, to search for "text" or "test" you can use the search:

te?t

Multiple character wildcard searches looks for zero or more characters. For example, to search for “test”, “tests” or “tester”, you can use the search:

test*

You can also use the wildcard searches in the middle of a term.

te*t

Note, however, that you cannot use a * or ? symbol as the first character of a search.

Fuzzy Searches

Fuzzy searches help find words that sound the same but are spelled differently (such as “roam” and “Rome”), words that have alternative spellings(“labor” and “labour”), those that are misspelled, and those that include a base word but include prefixes and/or suffixes (search results for the word “plan” will include “preplan” and “planning”). To do a fuzzy search use the tilde symbol (~) at the end of a single-word term. For example to search for a term similar in spelling to "roam" use the fuzzy search:

roam~

Proximity Searches

You can find words that are within a specific distance away from one another. To perform a proximity search, use the tilde symbol (~) followed by the number of words that can separate your search words. For example,

“federal corporation”~2 will find “federal deposit insurance corporation”

Term Boosting

If there is a term in your search query of particular importance, you can increase its relevance to the query using the carat operator (^”). If you want to indicate that the word Treasury is more important in your search, use the query

Treasury^5 guidance

The higher the boost factor, the more relevant that term will be in your result set.

Boolean Operators

Of course, the search query also supports the standard set of Boolean operators to specify how your search terms should be combined. The default operator is OR, so if there is no operator specified, the query engine assumes an OR.

The OR operator links two terms and finds a matching document if either of the terms exist in a document.
The AND operator matches documents where both terms exist anywhere in the text of a single document.
The NOT operator excludes documents that contain the term after NOT. It cannot be used with just one term specified in the search.
The NEAR operator links terms and finds a matching document if the terms are located within five words.

Grouping

We support using parentheses to group clauses to form sub-queries. This can be useful if you want to control the Boolean logic for a query:

(federal AND guidance) OR regulation

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Shared Attribution

Incorporating evidence of student learning as part of teacher evaluations is more complex than many policy makers ever imagined. There are three main challenges associated with using student learning results for teacher evaluation:

1.     The quality of the assessments,

2.     The quality of the analytic methods,

3.     Attributing student performance results to the correct educators

Most of the attention and anxiety has focused on finding high-quality measures, especially for teachers in grades and subjects without any statewide standardized achievement tests (the “non-tested subjects and grades,” or NTSG). This is certainly an important issue, but it is not the biggest threat to the validity of teacher evaluation systems. The analytic methods, the ways that we turn student test scores into accountability metrics such as value-added models (VAM), contain many challenges that make it very hard to get this aspect of the system “right,” even when we have tests of reasonable or high quality. We’ve seen many stories and articles about the unreliability of VAM estimates for teachers across years. And these are the best analytic methods and tests that we have! In the non-tested subjects and grades, we often have lower quality tests and much less sophisticated analytic methods for calculating student performance results. We’ve discussed some approaches for sensibly dealing with both the measurement and analytic methods for NTSG in previous postings (here and here), so for today, I want to focus on another important challenge.

Attributing the student assessment results to the correct educators is more than simply making sure that there are valid linkages between student and teacher identification numbers. This itself is no easy task, but this is the mechanical aspect of attributing scores to teachers. The more important piece of this puzzle is determining, based on the teaching and learning process, which adults have contributed or had the potential to contribute to the learning of a particular student or group of students. Again, this does not sound so difficult on first blush, but as with most aspects of teacher evaluation, a little digging reveals the incredible complexity of this endeavor. What we are really talking about here are causal inferences, one of the most challenging aspects of science to get right.

Most elementary school students are assigned to a single teacher, so this seems like a really easy case for assigning attribution, right? Fortunately for many elementary students — but perhaps not for evaluation system designers — students receive math and literacy (and perhaps other content) instruction from their primary teacher, but also from several other adults during differentiated instruction blocks and/or other interventions. For example, my fourth grade daughter receives math and literacy instruction from her classroom teacher 5 days/week, but for three afternoons each week, she and all of the other students in the 4th grade are divided into small groups for differentiated instruction in either math or literacy. In other words, my daughter and her classmates will receive math and literacy instruction from multiple adults in the course of a year. So who should get the credit or blame for the change in my daughter's math and reading scores?

When you turn a problem like this over to economists or statisticians, they will apply some straightforward mathematical thinking and suggest that we treat instructional time as a “dosage” problem similar to what one might encounter in medical studies. So if my daughter receives 70 percent of her mathematics instruction from her classroom teacher and 10 percent each from three other teachers, it seems quite straightforward to attribute my daughter’s scores according to these “doses.” Simple, right? This might make sense to anyone who has never actually set foot in a classroom! People who actually understand teaching and learning know that the quality, rather than quantity, of instruction has a lot more influence on learning. That’s not to say that quantity does not matter, but we can all think of cases where someone can take 10 minutes to explain a difficult concept in a different way than the teacher and the light bulb goes on. On the other hand, someone can try to explain something to you and end up confusing you so badly that it sets your regular teacher back several days trying to undo the misconceptions. In other words, quantity is a poor proxy for influence on learning in cases where schools regularly pool students for differentiated instruction.

A critical aspect of accountability design is to be clear about the types of actions or behaviors the system is intended to incentivize. Research on effective schools has documented the importance of shared visions and meaningful collaboration among school staff members. Therefore, it makes sense to design accountability systems that incentivize collaboration among teachers and leaders. In dismissing “dosing” teachers, I propose employing a shared attribution approach whereby the results of value-added model or student growth percentile results (and even Student Learning Objectives) are shared among all educators who directly or indirectly influenced the learning of a group of students.

I do not have a specific recipe for implementing shared attribution in all schools. But at a basic level, the results of a particular analytic method are pooled across all of the students that will be shared and then each educator would own an equal portion of those results. Going back to the example of my daughter’s elementary school where the teachers work in grade-level teams supported by specialists, I would share the student growth percentile results for all of the fourth grade students among all four teachers. The specialists who work with three different grade levels would have one-third of their student growth results based on the fourth grade performance.

How do we decide who should share the results of which students? We shouldn’t! At least it should not be decided by an external authority. Rather, schools or districts should have to articulate their theory of improvement and align it to their proposal for sharing the results of student academic performance. I argue that having to go through this process of explicitly defining their theory of improvement will be an important school improvement action in its own right. Some might define their approach to school improvement as working in grade-level teams while others might describe a content area team approach and yet others might propose an entirely different structure for school improvement. The important thing is aligning the proposed shared attribution system with the school’s view of improvement.

It is fair to ask if the picture is as rosy as I’m suggesting. There is the potential risk that educators could be held accountable for the performance of students for whom they have had little opportunity to influence their learning. Additionally, if we believe there is true variability among educators, a shared attribution approach would mask these differences.

On the other hand, the small samples (e.g., 25 students) associated with many teachers makes it very difficult to distinguish signal from noise (sampling error). Pooling students across multiple teachers will certainly help improve the reliability of the student growth results, but shared attribution should not be implemented just to improve reliability. The consequential aspects of fostering a more collaborative atmosphere will likely have a more positive influence on student learning than more individualistic or even competitive approaches. Given the struggles with getting this aspect of teacher evaluation systems “right,” shared attribution may help further the goals of the system with very little downside.

Scott Marion is vice president of the National Center for the Improvement of Educational Assessment.
The ED Cash Cow

When Supplemental Educational Services was introduced as a part of the ESEA reauthorization in 2001, it created what appeared to be a cash cow for companies looking to profit from the fledgling reform efforts of the time. New companies were formed, while old ones dusted off their services and promoted them for the new market. Given the peculiarities around SES rules, the cash cow never materialized, but a larger issue emerged: quality control. Over the years, millions of dollars have been spent on these tutoring services with so little evidence of effectiveness that most states abandoned the whole program in their ESEA waiver applications.

Race to the Top, School Improvement Grants and the Investing in Innovation grant programs added further incentive for companies to get in the reform business. The funding expanded the reach of firms with long track records in the reform business, but it also gave startups the funding to build their businesses. Some were so new that they wanted upfront payments for their contracts because they did not have the cash flow to meet payroll. Once again, districts faced the issue of quality control. In the case of the School Improvement Grants, states compiled lists of school improvement “vendors” for districts to partner with, similar to the SES lists of old. In many cases, districts paid a great deal of money to those vendors, and performance was weak at best.

The latest surge in commercialization is connected to the Common Core. It is not uncommon for me to receive ten or more emails a day from companies touting their curriculums, assessments, professional development and personalized learning software. Even if it was my job to make decisions around the purchase of such products, I would find it very hard to cut through the noise to make a decision that would bring a good return on investment. Here in Colorado, there are a number of homegrown efforts aimed at teaching to the new standards. Who’s to say which approach is better?

The Colorado state legislature recently passed House Bill 12-1238,READ Act, a bill that requires interventions for students in grades K-3 who are designated as having significant reading deficiencies. Once again, there is going to be a list of approved providers. In an attempt to get better quality, the state has required vendors on the approved list to demonstrate effectiveness with scientifically- based research or some other strong evidence base. Old, well-established companies have an advantage on this score. It costs a lot of money to pay for blind comparison studies, and it also requires having been in business long enough to conduct adequate statistical comparisons. Small companies and start-ups are clearly at a disadvantage. There are experiments going on all over the country as school districts figure out the best ways to drive reform forward. Companies are happy to sell their products to such districts. Education provides a market for entrepreneurs who tout their products as THE answer. As education becomes increasingly commercialized, the choices are no longer limited to a few established textbook companies. Instructional leaders need to become savvy consumers in a way that teacher and principal licensure programs never envisioned.

Nancy Connor is the director of federal programs for the Denver Public Schools.
Capitol Hill Update: I Think I Can, I Think I Can

The last time Congress reauthorized the Elementary and Secondary Education Act (ESEA) was with the passage of the No Child Left Behind Act in 2001. There have been several attempts over the last couple of years, but none of these has had a serious chance of becoming law.

Like that famous little engine, the education committees in the House and Senate think that they can make this happen. The leadership of the committees — Congressman John Kline (R-Minn.) and Senator Tom Harkin (D-Iowa) — along with the ranking members of the committees have been in initial discussions. Congressman Kline is nearing the end of his term limit as chairman without accomplishing the reauthorization. Senator Harkin has announced his retirement and has not accomplished the reauthorization. `These circumstances can serve as an incentive.

Congressman Kline’s staff is working hard on a draft bill; the same is true of Senator Harkin’s staff, although neither chamber has introduced a bill yet. Committee staff members are talking about a “conferenceable” bill — a bill that contains enough for everyone that it can be considered by both parties, make its way to the floor of each chamber, and be melded into a single bill for passage into law.

Of course, many issues remain to be resolved: what to do about waivers in light of the work that the states have put in and the changes they already made in response to this new flexibility; the issue of teacher accountability and whether or not test results should be part of that determination; common core standards or equivalent substitutes for the common core; and assessments by the states and the definition of what’s at stake with those assessments.

The other “wild card” is the politics beyond the committee members. What will Congressional leadership and other factions in the Congress allow their members to accept? Is compromise still possible on Capitol Hill? Can there be a resolution to these hot-button issues or are the sides simply too far apart?

In addition to the issue of reauthorization, there is the matter of funding. Even if a bill passes, we have to be concerned that it will have sufficient funding for effective implementation. For current programs, the President has proposed “even” funding (the same as the 2013-14 funding without the sequestration cut) for Title I, the Title IIA professional development program, the Title III language acquisition program and for IDEA; a diversion of 25 percent of Title IIA for a national program to fund research and development for teacher assessment instruments; an increase in funding for 21^st Century Community Learning Centers; funding for Successful, Safe, and Healthy Children; an increase in Race to the Top and i3 funding; and new funding for early learning programs. There has been pushback from Democratic Senators on level- funding for programs such as Title I and IDEA, but there is also pushback from House Republicans on any increase in federal spending.

One thing is certain for the spring and summer, however. The education committees have the mindset of that little engine — they think they can get a bill crafted that can be voted on by the entire Congress. Let’s hope they make it up that hill!

Michelle Doyle, a former top official with the U.S. Department of Education’s Office of Non-Public Education, is CEO of Michelle DoyleEducational Consulting.
The Perils of Cut and Paste

Speaking Wednesday at the annual Brustein & Manasevit spring grants forum in D.C., OMB official Gil Tran illustrated the perils of developing guidance by merging documents.

In the Office of Management and Budget’s so-called “super-circular,” the agency proposes a radical revamp of “time-and-effort” documentation in order to reduce the drain on grantee administrative resources and eliminate what has turned out to be the #1 source of audit findings. This is one of the most important features in a mammoth project to merge several administrative circulars and establish consistent guidelines for all grantees. But the revision itself has people scratching their heads because it seems to set a lower standard for documenting the time of employees working on multiple federal programs than those working on a single program; this is the reverse of what you would expect.

The principle behind tracking time and effort is simple and commonsensical: Federal grantees must document how much time each of their federally funded employees spends on grants so the federal funds can be properly allocated to the appropriate program. Under the current system, state or local employees who work full-time on a federal program (a single “cost objective”) need only file a semi-annual certification that they spent the previous six months solely that program. Anyone working on multiple cost objectives — that is, employees working on multiple federal programs or on one or more federal programs and a state or local program — must keep a monthly personnel activity report (PAR) tracking in detail exactly how much time they spend on each cost objective.

The complexities of this system have made it a nightmare to administer, and OMB proposes to replace the whole structure with “certified reports,” essentially an after-the-fact certification that the employee spent X percent of his time on cost objective(s) A, B, C, etc. Under the proposal, control systems to ensure the accuracy of the certifications must meet higher standards when the employee works on multiple cost objectives. (See “General Provisions for Selected Items of Cost,” beginning on p. 86 of the super-circular.)

This seems simple enough (which is the point). But this is where things got strange with the proposal. If you work on a single cost objective, the certification may cover the previous six months. But if you work on multiple cost objectives, the certification may cover the previous 12 months. This has puzzled people from the day the proposed new circular came out in February.

It turns out that this is merely an “oopsy,” although a big one. According to Tran, this is the result of cutting and pasting from the various existing administrative circulars that will be replaced by the super-circular. Existing Circular A-21, which applies to colleges and universities, has long allowed a 12-month certification for “professorial and professional” staff, even if they work on multiple cost objectives. OMB mistakenly imported this 12-month period and applied it for all certified reports for multi-funded staff.

“The time periods will be aligned at six months,” Tran said.

Whew! Glad to get that sorted out! But it does indicate that OMB has a lot of work to do before the super-circular is ready for prime time. As he has before, Tran offered an optimistic projection for the date the revised document would go into effect: July 1, 2014. Attorney Michael Brustein said, “I’m not buying it,” and he said July 1, 2015, is more realistic.

Based on OMB’s history of missed deadlines, my bet is on Brustein.
Ready, Set… Not Ready?

It’s “go time” for the Common Core. The drivers have started their engines and the green flag is out. But many people say they aren’t quite ready for the race to begin.

Most recently, Indiana lawmakers pulled back on the throttle with legislation that would partially halt that state’s adoption of the standards. A grassroots anti-Common Core movement has popped up there as well. In addition, legislators in Alabama, Kansas, Michigan, and Missouri have also recently introduced bills to alter Common Core implementations.

Adding to the chorus of anti-Common Core sentiment, AFT President Randi Weingarten said in an April 30^th speech that even though 75 percent of AFT members support the Common Core standards, the same high percentage say they have not had enough time to prepare for them.

As a result, Weingarten is “… calling for a moratorium on the stakes associated with Common Core assessments. I am proposing that states and districts work with educators to develop clear tasks and a clear timeline to put in place the crucial elements of Common Core implementation. And until then, the tests should be decoupled from decisions that could unfairly hurt students, schools and teachers.”

Lack of preparedness for the Common Core has been a consistent theme for months among states and educators. Even the testing consortia themselves seem to be struggling.

A May 3^rd article in Education Week stated, “Widespread technical failures and interruptions of recent online testing in a number of states have shaken the confidence of educators and policymakers in high-tech assessment methods and raised serious concerns about schools’ technological readiness for the coming common-core online tests.”

Americans want better academic outcomes for kids. The fewer, clearer, higher standards of the Common Core are a reasonable response to that need. But only if we’re ready, willing, and able to implement them.

And if we’re not ready, then perhaps Ms. Weingarten is speaking sensibly when she says, “…implementation plans must lay out what is needed, spell out how to get there, and make it clear how they will be supported, financially and otherwise, by teachers, political leaders, administrators, parents and the community.”

What I wonder is why this hasn’t happened already and when people think it will. That’s the part nobody seems to be talking about. Is anybody ready? If so, how did they get there? If not, when do we think our “ready date” will come? Does anyone have the kind of implementation plans Weingarten is talking about? And if not, why?

I am sympathetic to the lack-of-readiness argument. Most of the folks I work with definitely aren’t ready. For that matter, neither am I.

Like many people, I think the Common Core has great potential. I don’t want us to rush it if we think it’s likely to fail right out of the gate. But there’s a difference between not rushing it and not doing it at all.

What troubles me most is this: If the current timeline isn’t feasible, why aren’t states, the testing consortia, and educational leaders proposing timelines that are?

I wouldn’t fault anyone who said they were behind in implementing such ambitious reforms. But I’d like to know how far behind they are and when they think they’ll catch up.

Has the federal government gone too fast? Have educators gone too slow? Did all those states really want the Common Core? Or did they sign on to it simply to raise their chances of winning Race to the Top funds? And did they re-commit to it merely to get their NCLB waivers?

It’s clear that we want a better approach to education. What isn’t clear is whether we’re ready to commit to the approach we’ve chosen or if we’re ready to suggest something else.

Steve Peha is the Founder of Teaching That Make Sense, an education consultancy focused on literacy and leadership.

Photo credit: Jon Marshall

May 16, 2013
Superintendents Seek IDEA Maintenance-of-Effort and Other Relief

Due to belt-tightening sparked by sequestration, a leading lobbying organization for school district superintendents is seeking relief from maintenance-of-effort requirements under the Individuals with Disabilities Education Act (IDEA).

Maintenance-of-effort (MOE) requires any state or local school district that receives federal IDEA funds to contribute annually its same share of the state and local cost of special education paid the previous year. In other words, recipients of federal funds cannot use those funds to replace state or local funding. The federal funds must supplement local effort.

Bruce Hunter, the executive director of federal policy for the American Association of School Administrators (AASA), said that due to the large number of districts that would be seeking MOE waivers, his organization would be investigating a way to allow districts to apply through the state rather than directly to the U.S. Department of Education. School districts are facing the challenge of reduced local funding that adversely impacts their ability to maintain the same level of their prior year contribution.

“We don’t think the federal government has the ability to look at thousands of waiver requests, but we know the states do,” Hunter told an audience of educators assembled recently at the Spring Forum of the Brustein & Manasevit law firm in Washington, DC.

Other Relief – School Reform

He also said the current atmosphere of austerity in government would make it increasingly difficult for districts to find the capacity to fund what he described as “the swamp of reform” mandated by the Obama administration — programs like School Improvement grants and the ESEA Flexibility waivers.

“People tell me that’s just a lot to swallow at once, he said. “Nobody has the relevant resources — the money or the people to go to—to do all of this. Somehow, it’s going to happen. But it’s going to be the case that it will happen very unevenly.”

Teacher Evaluations

He specifically cited the push for teacher and principal evaluations based in part on student achievement, which many critics have criticized as overly punitive.

“We oppose using teacher and principal evaluations as a way to facilitate dismissal,” he said. Referring to the country that many reformers point to as a beacon of reform, he quipped, “You cannot fire your way to Finland.”

ESEA Reauthorization

Finally, he predicted that Congress will see traction on long-delayed legislation to reauthorize the Elementary and Secondary Education Act.

“It looks fairly likely that the House and Senate education committees will do a bill soon, and that a version of a bill will move from the House committee to the floor sometime this summer,” he said.

Given the partisan divide between the two chambers, Hunter expected “an interesting conference” when House and Senate leaders meet to agree on compromise language.—Andrew Brownstein
May 10, 2013
Preliminary Title I Allocation Tables Reveal Deep Cuts for SY 2013-14

Despite a 5.2 percent cut in the overall appropriation for Title I local grants in school year 2013-14, a lucky five states are expected to eke out modest gains in their school year 2013-14 allocations. But that is the end of the good news. As expected, the rest are expected to suffer significant reductions, with an unlucky five projected to lose more than 8 percent, according to preliminary allocation tables just issued by the U.S. Department of Education (ED).
An analysis by Thompson Information Services shows Hawaii with a projected gain of 4.7 percent, followed by Connecticut at 2.6 percent and three other small states with more modest gains. Kansas would get walloped with a 9.3 percent loss. The other four states showing a loss of more than 8 percent are all Plains or Mountain states.

In addition to state totals, ED's spreadsheets show the preliminary allocations for each Title I school district in the nation. In fact, each state's allocation is largely the aggregate of its school districts' allocations (with some upward adjustments for certain "minimum-allocation" states).

As could be expected, the largest dollar losses would be experienced by the largest cities. New York City would lose $49.4 million, followed by Los Angeles at $16.6 million and Chicago at $14.3 million. Three of the top 10 gainers are school districts in Georgia: Chatham County (Savannah), which would gain $2 million; Henry County, $2 million; and Paulding County, $1.3 million. The latter two are suburbs of fast-growing Atlanta.

All told, out of approximately 13,600 school districts, some 10,800 are expected to lose funds, while only 2,300 are expected to gain. (The rest show no change.)

Aside from changes caused by the annual appropriation amount, Title I allocations vary from year to year based mainly on the relative changes in the populations of low-income children in school districts across the country. However, in years when the national appropriation declines, special “hold-harmless” provisions kick in. These ensure that school districts receive no less than 95, 90 or 85 percent of their previous year’s amount, with the level of protection depending on their absolute poverty percentages. As a result, a comparison of this year’s projected allocations against last year’s reveals a striking number of districts with allocations at precisely 95, 90 or 85 percent of their previous level.

The district hold-harmless guarantee will have a crucial impact on the funds available for state school improvement activities. Normally, states are required to reserve 4 percent of the aggregate state grant to conduct school improvement activities; these funds are deducted from district allocations. Although states are required to pass through 95 percent of the funds to districts for technical assistance, they get to retain 5 percent of the set-aside for their own costs. But they may not reduce district allocations to fund the 4 percent set-aside. In light of that fact that most districts are already suffering cuts, some states may find that they are unable to reserve any funds at all, seriously damaging their technical assistance activities even as they gear up to implement new accountability systems under the ESEA Flexibility initiative.

While districts likely will peruse the data with interest, they must approach these numbers with caution: The actual amounts they receive from their states almost will certainly be smaller. States ultimately make significant adjustments to each district's allocation to cover their administrative costs. In addition, states must shift some funding to eligible special districts, such as charter schools and career and technical education centers, that are not reflected in ED's tables.
The numbers just released are preliminary because ED is still awaiting final data on each state's count of students in institutions for neglected and delinquent children, in foster care, and in families that are on welfare but have incomes above the poverty line. Altogether, these children constitute only 4 percent of the total in the formula; the rest of the population data are based on U.S. Census Bureau estimates of children in poverty.

After any necessary adjustments, ED will release the final numbers by June, with states, in turn, then announcing final allocations to their districts.
May 8, 2013
Building on ED OIG 1999 “Perspectives” Paper, Intergovernmental Group Seeks to Focus Regulations

In 1999, the Office of Inspector General of the U.S. Department of Education put out a little-noticed paper in anticipation of the reauthorization of the Elementary and Secondary Education Act. It operated on the almost-quaint-by-Washington-standards notion that states and school districts should regulate only what’s important, regulate clearly and regulate with the intention of monitoring or not at all.

Rich Rasa, director of state and local advisory services for the Inspector General (OIG), met with Capitol Hill staff about this “perspectives paper,” but isn’t sure what evidence, if any, there is that it had an effect on the reauthorization passed in 2001. In fact, the No Child Left Behind Act turned out to be a mammoth, prescriptive law with no fewer than 558 separate mandates.

“There are even more laws, regulations and guidance out there today, certainly in education,” Rasa said in an interview with the Title I Monitor. “I have No Child Left Behind in my office here, and it’s well-tagged.”

Well over a decade later, however, the principles enshrined in the OIG’s perspectives paper are set to have a second life, with a more urgent message aimed at the austerity-minded climate now facing government agencies at all levels, not just those in education.

Labeled “A Call to Action,” the paper —“Making Better Decisions: Leveraging Government Resources in Challenging Financial Times” — will be published May 21 by the influential Association of Government Accountants (AGA). The paper represents the work of an intergovernmental partnership between federal, state and local government officials and several leading national organizations. The document will be jointly released by seven organizations related to finance, grants management and policy, among them two focused on education: the Association of Educational Federal Finance Administrators (AEFFA) and the National Association of Federal Education Program Administrators (NAFEPA). An advance copy was obtained by the Monitor.

The cooperation and joint roll-out are unusual. It is the first “call to action” the AGA has released.

“The urgency has to do with the fiscal situation governments are in right now,” said Helena Sims, director of intergovernmental relations for the AGA. “They have to make the best use of their resources. Part of that has to do with making decisions in a logical way that takes into consideration return on investment.”

The crux of the 23-page report is a set of three tests. Presented in the form of decision trees, the tests ask basic questions that build on each other. The first asks whether a requirement should be included in a law, regulation or guidance. Once that hurdle is passed, the second test asks whether the requirement is clear and presented in plain writing. The final test examines whether data requests associated with the requirement are reasonable, enforceable and protected by proper controls.

Each test presents a series of common-sense questions. If the answers are negative, the user is instructed to “consider striking the requirement.” For example, the first test asks questions like “Is the requirement essential for program effectiveness or financial management or both?” If users answer positively, they go on to face questions about whether the requirement is duplicative, based on research and minimizes administrative burden. Final questions ask if the requirement will be monitored and whether noncompliance will lead to some form of punishment.

Each test is sprinkled with real-life examples, some of them from the world of education.

Rasa called the report “a game-changer.”

“What if all laws, regulations, and guidance were written in a way that only the essential requirements were included, written in plain language so everyone who read them understood them, and the data streams requested informed in a way that you could tell whether the programs were working as intended?” he asked.

The impetus for the AGA report came from a presentation Sims attended over a year ago at George Mason University in Virginia which focused on the overabundance of data collection in government and the necessity of filtering data out that is not useful.

She discussed the idea with Rasa, who showed her the decision tree on data use from the OIG’s 1999 paper.

While the new report draws heavily on the principles espoused in the 1999 report, as well as a follow-up document released by the OIG in 2007, the biggest changes are in the area of data. The change reflects the increased sophistication of data-mining technology over the past decade, as well as a greater hunger for quality data and concerns about the misuse and security of that data.

The data test asks if a requirement’s need for data has been clearly identified and if the data is necessary and appropriate to meet that need; if the data will be used by decision-makers; and if controls are in place to ensure data is accurate, reliable and complete. The test also examines if there are consequences for providing bad or incomplete data and whether data presented are secure.

Sims said the response to the report from agency officials who worked on it was so positive that several members have begun implementing the principles. She said one member used it to inform accounting principles in Arizona and another put it to the test in deciding whether to create a new inspector general position in Florida. The logic of the approach, she said, convinces her that “this will have legs.”

“One of the reactions we’ve gotten in showing this to people is ‘Good grief, there’s nothing like this out there?’” she said. “It may just be too obvious.”

May 1, 2013

Inflation-Adjusted Title I Budget Back to Pre-George W. Bush Level

After taking into account inflation, the Title I budget has been rolled back to the level where it stood before President George W. Bush took office, more than a decade ago.

That is one of the principal conclusions that can be drawn from an analysis performed for Thompson Information Services by Wayne C. Riddle, a consultant and former Congressional Research Service analyst specializing in Elementary and Secondary Education Act programs.

Putting the recent cuts in historical perspective, however, they are dwarfed by the carnage in Ronald Reagan’s first term, when Title I lost more than a quarter of its purchasing power over four years.

(continued below)

Long-Term Perspective

In nominal, non-inflation-adjusted terms, the budget cut of 5.21 percent just signed into law for fiscal year 2013 is among the largest one-year reductions ever experienced by Title I, exceeded only by the 7.26 percent cut in 1968 and the 5.82 percent cut in 1973. Certainly, for those who have experienced only the relatively prosperous days since the Democrats rolled back Reagan’s cuts in his second term, this is a jolt.

But, taking the very long view, Title I has at least held on to the increases realized during the administrations of Presidents George H.W. Bush and Bill Clinton. During that span, the program gained roughly 40 percentage points in purchasing power over the level prevailing when it was first enacted in 1965.

Further, the cuts in recent years have been cushioned, at least in part, by the $10 billion in extra Title I funds appropriated under the 2009 American Recovery and Reinvestment Act (not shown in the analysis). Although these were explicitly identified as funds for “one-time-only” investments to offset the recession, waivers permitted school districts to stretch the funds over two more years. This helped offset the effects of the anemic regular appropriations. However, this effect has long-since dissipated.

(continued below)

Table 1 – ESEA Title I, Part A LEA Grant Appropriations in Current and Constant Dollars, 1965-66 Through 2012-13 (No ARRA Funds Considered)
Program Year	Grants to LEAs in Current Dollars ($ in thousands)	% Gain/Loss from Previous Year	Grants to LEAs in FY1966 Dollars ($ in thousands)	% Gain/Loss from Previous Year
1965-66	$969,934		$969,934
1966-67	$1,015,153	4.66%	$953,732	-1.67%
1967-68	$1,100,288	8.39%	$980,125	2.77%
1968-69	$1,020,439	-7.26%	$850,631	-13.21%
1969-70	$1,219,166	19.47%	$933,982	9.80%
1970-71	$1,339,660	9.88%	$960,642	2.85%
1971-72	$1,406,616	5.00%	$951,367	-0.97%
1972-73	$1,535,538	9.17%	$968,484	1.80%
1973-74	$1,446,166	-5.82%	$853,142	-11.91%
1974-75	$1,588,200	9.82%	$861,732	1.01%
1975-76	$1,625,751	2.36%	$818,686	-5.00%
1976-77	$1,721,361	5.88%	$813,373	-0.65%
1977-78	$1,927,424	11.97%	$860,210	5.76%
1978-79	$2,357,054	22.29%	$956,760	11.22%
1979-80	$2,777,289	17.83%	$1,017,323	6.33%
1980-81	$2,731,682	-1.64%	$915,623	-10.00%
1981-82	$2,611,387	-4.40%	$812,209	-11.29%
1982-83	$2,562,753	-1.86%	$764,264	-5.90%
1983-84	$2,727,588	6.43%	$763,079	-0.15%
1984-85	$3,003,680	10.12%	$803,218	5.26%
1985-86	$3,200,000	6.54%	$825,518	2.78%
1986-87	$3,062,400	-4.30%	$749,721	-9.18%
1987-88	$3,453,500	12.77%	$826,289	10.21%
1988-89	$3,829,600	10.89%	$877,486	6.20%
1989-90	$4,026,100	5.13%	$874,927	-0.29%
1990-91	$4,768,258	18.43%	$994,316	13.65%
1991-92	$5,557,678	16.56%	$1,127,097	13.35%
1992-93	$6,134,240	10.37%	$1,201,850	6.63%
1993-94	$6,125,923	-0.14%	$1,171,933	-2.49%
1994-95	$6,336,000	3.43%	$1,186,299	1.23%
1995-96	$6,698,356	5.72%	$1,224,277	3.20%
1996-97	$6,730,348	0.48%	$1,207,697	-1.35%
1997-98	$7,295,233	8.39%	$1,288,164	6.66%
1998-99	$7,375,232	1.10%	$1,258,108	-2.33%
1999-2000	$7,732,397	4.84%	$1,272,367	1.13%
2000-01	$7,807,397	0.97%	$1,241,234	-2.45%
2001-02	$8,762,721	12.24%	$1,357,480	9.37%
2002-03	$10,350,000	18.11%	$1,518,688	11.88%
2003-04	$11,688,664	12.93%	$1,649,911	8.64%
2004-05	$12,342,310	5.59%	$1,652,018	0.13%
2005-06	$12,739,571	3.22%	$1,622,555	-1.78%
2006-07	$12,713,125	-0.21%	$1,537,869	-5.22%
2007-08	$12,839,307	0.99%	$1,476,118	-4.02%
2008-09	$13,898,381	8.25%	$1,589,482	7.68%
2009-10	$14,492,401	4.27%	$1,617,019	1.73%
2010-11	$14,492,401	0.00%	$1,567,965	-3.03%
2011-12	$14,442,927	-0.34%	$1,534,981	-2.10%
2012-13	$14,516,457	0.51%	$1,519,997	-0.98%
2013-14	$13,760,219	-5.21%	$1,415,336	-6.89%
The deflator used above is the price index for state and local government expenditures for K-12 Education published by the Bureau of Economic Analysis (BEA, see National Income and Product Account Table 3.15.4, "Price Indexes for Government Consumption Expenditures and Gross Investment by Function," revised Sept. 10, 2012, at http://www.bea.gov). These deflators are applied on a calendar year basis, applying the deflator for the second year of each school year to the funding levels (i.e., applying the calendar year 2010 deflator to the 2009-10 school year funding). As of April 2013, this BEA deflator is available only through (calendar year) 2011. For years beyond 2011, the 2011 index number is multiplied by the actual or projected rate of increase in the general Gross Domestic Product deflator as published by the Congressional Budget Office. Source of appropriation figures is Thompson Information Services archives, derived originally from U.S. Department of Education tables.

Target Population

Of course, inflation is only one factor of many that can erode the purchasing power of a federal program's budget. One of the most significant of the other impacts is an increase in the target population. But there are no national statistics on the precise size of Title I’s target population: low-performing children in high-poverty school attendance areas.

A common, although crude, proxy is the number of children under age 18 in families with incomes below the poverty level. According to the Census Bureau, there were approximately 14.7 million children in poverty in 1965 and 16.1 million in 2011 (the most recent available data; see Table 3, “Historical Poverty Data – People,” available at http://www.census.gov/hhes/www/poverty/data/historical/people.html). This represents a 10 percent increase over 45 years (although there were significant fluctuations during this time span).

In theory, then, one might contrast this figure with the 40 percent increase in buying power since the program’s 1965 inception, and consider this an improvement overall in the program’s resources. However, definitional changes make such contrasts unreliable. Further, any inflation adjustment cannot take into account the structural changes in education over time: In 1965, schools did not need to equip kids with laptops.

And, of course, knowledge that other folks had it worse in the Reagan administration does little to assuage the immediate pain of the 2013 cuts.

The 2011 Budget Control Act that drove this year’s cuts actually permits small annual increases overall in federal funding for non-defense discretionary spending beginning in 2014, at a level designed to match increases in the Consumer Price Index (assumed to be roughly 2 percent). However, these increases will be based on the shrunken 2013 base, and education will have to compete with other domestic programs, ranging from housing to scientific research.

Further compounding the competition is the expiration of previously employed one-time budget gimmicks and the existence of structural pressures to increase funding for other high-priority domestic programs, such as veterans’ health care. According to Richard Kogan, an expert with the Center for Budget and Policy Priorities, “the fact that the [budget] caps will rise from year to year in nominal terms is very little consolation.”

Title I in particular must struggle for funds against other education programs, such as Race to the Top. It is no secret that the Obama administration prefers to use competitive programs like RTT to implement its agenda. “The U.S. Department of Education and Congress are shifting dollars into those programs and not using Title I to drive innovation/reform,” noted David DeSchryver, vice president of education policy at Whiteboard Advisors.

All in all, it seems unlikely that the 2014 funding bills now being shaped in Congress will bear good news for Title I or other education programs. Austerity may be a long-term condition.

April 29, 2013
Final FY 2013 ED Budget Tables Posted, Preliminary Title I Allocations Due

The U.S. Department of Education (ED) has just posted its final tables for the fiscal year 2013 appropriation bill signed into law March 25.

Although the measure was enacted over a month ago, it took this long to determine the actual amount that would be available for each “program, project and activity” in the federal budget. Instead of setting specific line items for many federal activities, Congress based its 2013 funding levels on the 2012 appropriation bill, subject to a variety of adjustments resulting in a roughly 5.23 percent cut for domestic discretionary programs. The complex calculations required to develop precise, program-by-program figures were overseen by the Office of Management and Budget, with a one-month deadline. OMB signed off on the calculations last Friday.

The funds for ED state formula grant programs will become available July 1 for the 2013-14 school year.

Staffers at the Student Achievement and School Accountability office have “calculated the preliminary FY 2013 Title I LEA allocations and are working on getting internal ED clearance before releasing,” according to spokesperson Jo Ann Webb. The preliminary allocations are just working estimates. Final Title I allocations always come out later in the spring because they depend partly on state-reported counts of students in institutions for neglected or delinquent children and children in foster care. These data come in later than the other data used in the Title I formula.

The target for clearance of the preliminary allocations is the end of this week, but the tables are not always immediately available to the public because protocol requires that they first be delivered to senators and representatives on Capitol Hill and to chief state school officers. The tables will be posted on Thompson’s Education Compliance Expert funding page when available.
April 25, 2013
Final FY 2013 ED Figures Delayed, But Preliminary Title I Allocations Due Soon

Under the continuing resolution for 2013 signed into law March 25, the Office of Management and Budget was supposed to send Congress an “operating plan” showing the exact amount each “program, project and activity” was to receive as a result of the law. The operating plan was due today, but the U.S. Department of Education indicated that OMB has not yet cleared the ED budget and there was no timeline for approval.

An operating plan is necessary because Congress did not set specific line items for many federal activities, but instead based its 2013 funding levels on the 2012 appropriation bill, subject to a variety of adjustments resulting in a roughly 5.2 percent cut for domestic discretionary programs. The complex calculations required to come up with the precise, program-by-program figures were deferred to OMB, with a one-month deadline.

The tables will hold “no surprises,” according to ED spokesperson Jim Bradshaw, meaning that projections circulating around Washington are generally reliable (see the Committee for Education Funding’s projections). However, state and local officials look forward to the official figures to provide a definitive basis for planning.

The delay in OMB approval did not prevent the Office of Special Education Programs from sending out final allocation tables for the Part B, Part C and preschool state formula grant programs under the Individuals with Disabilities Education Act. As with most ED formula programs, the FY 2013 funds will be available starting July 1 for school year 2013-14.

For its part, staffers at the Student Achievement and School Accountability office have “calculated the preliminary FY 2013 Title I LEA allocations and are working on getting internal ED clearance before releasing,” according to spokesperson Jo Ann Webb. “They hope to have the LEA allocations cleared for release by the end of next week. “

Title I allocations always come out later in the spring because they depend partly on state-reported counts of children in institutions for neglected or delinquent children and children in foster care. These data come in later than the other data used in the Title I formula.

Both the ED operating plan and preliminary allocations will be posted on Thompson's Education Compliance Expert when released.

Section 504 News

May 16, 2013

Despite Duncan’s Assertion, Federal Appeals Courts Can Review Certain ED Decisions

Federal appeals courts have jurisdiction to review certain U.S. Department of Education decisions, despite department claims to the contrary, the 4th U.S. Circuit Court of Appeals ruled in South Carolina Department of Education v. Duncan, No. 12–1764 (4th Cir. April 26, 2013).

When ED denied South Carolina a hearing that the state believed it was entitled to under the Individuals with Disabilities Act, the state took the department to court. ED protested, saying that IDEA doesn’t give the court permission to get involved.

Facts of the Case

IDEA provides federal funds to states for the education of students with disabilities (see ¶917 of the Handbook). To receive the full amount of federal funding available, each state must contribute funds for the same purpose. Each year, states must match or exceed their contribution from the previous year (¶918).

If a state falls short of this “maintenance-of-effort” requirement, the Secretary of Education has to reduce federal funding to the state by the amount of the shortfall. He has the option, however, to grant a waiver of the MOE condition if the shortfall was “due to exceptional or uncontrollable circumstances such as a natural disaster or a precipitous and unforeseen decline in the financial resources of the State.”

Citing “severe and precipitous” reductions in state tax revenues, South Carolina requested a MOE waiver for about $67.4 million for fiscal year 2010. ED Secretary Arne Duncan granted the waiver in part, withholding only $36.2 million from the state’s federal allocation.

South Carolina requested a hearing on the decision, but Duncan said that IDEA does not provide for such a hearing.

South Carolina petitioned ED’s Office of Hearings and Appeals anyway, but it denied the request. The department explained that while IDEA provides for notice and an opportunity for a hearing “prior to … issuance of the Department’s final agency decision rejecting the eligibility of a State for IDEA grant funding,” the agency’s partial denial of South Carolina’s request was not a decision rejecting eligibility.

Because South Carolina was not challenging the conclusion that it did not meet MOE conditions (only requesting a waiver from the conditions) and because the state was never deemed ineligible for a grant, this was not a case of an agency decision rejecting eligibility, ED said.

South Carolina asked the 4th Circuit to review this decision and ED filed a motion to dismiss, arguing that the court did not have jurisdiction to consider the state’s petition because no eligibility question was involved.

ED said that its waiver decision was a final agency action subject to review only in a district court under the Administrative Procedure Act, not in a court of appeals under IDEA.

4th Circuit

The court said it had two questions to answer: (1) whether the court has jurisdiction to consider South Carolina’s petition for review, and (2) whether South Carolina is entitled to an opportunity for a hearing on ED’s determinations.

Jurisdiction

Arguing that the federal courts of appeal do have jurisdiction over ED decisions, South Carolina pointed out that IDEA authorizes a state to file a petition for review in a court of appeals when the “State is dissatisfied with the Secretary’s action with respect to the eligibility of the State.” (emphasis added) (20 U.S.C. §1416(e)(8)(A))

The question, then, said the court, is whether the MOE waiver determination was an action regarding eligibility.

South Carolina argued that MOE is one of several eligibility requirements for federal funding and therefore, by not waiving the MOE condition, ED found South Carolina ineligible for a grant.

ED disagreed, arguing that South Carolina was not ineligible for a grant under IDEA because, had it been ineligible, it would not have received any funding.

The court ultimately agreed with the state’s arguments, pointing out that South Carolina requested a waiver under IDEA’s §1412, a section titled “state eligibility.” ED’s waiver determination was, therefore, a decision on whether to remove an eligibility condition.

Because removing an eligibility condition is an “action with respect to the eligibility of the State,” the 4th Circuit determined that federal appeals courts have jurisdiction to consider states’ petitions for review.

Waiver Review

After finding that it had jurisdiction to review the matter, the 4th Circuit then considered whether IDEA allows South Carolina to seek a hearing to review ED’s waiver determination.

IDEA states that “[t]he Secretary shall not make a final determination that a State is not eligible to receive a grant under this subchapter until after providing the State (A) with reasonable notice; and (B) with an opportunity for a hearing.” (emphasis added) (20 U.S.C. §1412(d)(2)) This notice and hearing opportunity must take place “[p]rior to withholding any funds under this section.” (20 U.S.C. §1416(e)(4)(A))

Like the jurisdiction ruling, this question turned on whether ED was considering a state’s eligibility.

The court said it was. The partial denial of the MOE waiver “not only provides us with jurisdiction … but also amounts to a ‘determination that a State is not eligible’ for funding,” the court said.

Therefore, South Carolina is entitled to notice and an opportunity for a hearing before a final determination is made, the court concluded, citing 20 U.S.C. §1412(d)(2).

Funding

While South Carolina is entitled to a hearing on the merits of its waiver request, the court said it couldn’t complete the review itself. “Because we conclude that South Carolina is entitled to an opportunity for a hearing on the waiver determination, it is premature for us to address its challenge to the Secretary’s decision to deny a full waiver,” the court said.

It did note, however, that because the decision could not be final until the state received an opportunity for a hearing, South Carolina remains eligible for its full funding until a final decision is made. This also means that ED cannot distribute the funds earmarked for South Carolina to other states until the decision is final.

ED, however, has already made the cuts. But according to South Carolina’s department of education, schools were not affected because the state legislature made up the difference while the department pursued legal action.

ED now must provide South Carolina with an opportunity for a hearing. But even if the funding cuts ultimately stand, the reductions only will be in place for as long as the state failed to meet its MOE requirements. The cuts would have been permanent but Congress prohibited this would-be “perpetual penalty” during appropriations earlier this year, according to the state’s department of education. See sidebar, Congress Puts an End to ED’s Permanent IDEA Penalty Controversy, for more information.

Congress Puts an End to ED’s Permanent IDEA Penalty Controversy

In allocating funding for special education earlier this year, Congress put an end to controversy about permanent funding penalties the U.S. Department of Education says it can impose on states that fail to meet “maintenance-of-effort” requirements.

IDEA provides federal funds to states for the education of students with disabilities. To receive the full amount of federal funds available, each state must contribute funds for the same purpose. Each year, states must match or exceed their previous year’s contribution.

If a state fails to at least match its contribution from the previous year, the department must reduce its own contribution by that much, or grant a waiver. Any cuts made would remain forever, regardless of whether the state stepped up its contribution in following years.

Congress has now put an end to this permanent penalty. States that fall short of the MOE requirement once will suffer cuts only once, legislators made clear in this year’s funding legislation. Once states return to their original funding level, so will ED.

Senator Tom Harkin, D-Iowa, added the provision to Congress’ 2013 continuing appropriations resolution.

South Carolina Superintendent of Education Mick Zais called the move “common sense,” in a press release. The legislation “repeals the absurd perpetual penalty that withheld $36,202,909 in funds used to provide services to students with disabilities,” he said, referring to cuts his state suffered when it failed to meet MOE requirements (see Despite Duncan’s Assertion, Federal Appeals Courts Can Review Certain ED Decision, above).

May 9, 2013
New Architectural Barrier Complaint Form Available for Public Review

A form that will be used for accessibility complaints about federally funded facilities is available for public review and comment, according to the U.S. Architectural and Transportation Barriers Compliance Board.

The online form will be used to receive complaints about potential Architectural Barriers Act violations. ABA, which is enforced by the board, requires accessibility in federally funded facilities, such as public housing (see ¶449 of the Handbook).

According to the board, the new online complaint form will make it easier for individuals to file complaints and improve the board’s process for tracking them.

The complaint form is available for review and comment until June 3.

Comments must be sent to Lisa Fairhall, deputy general counsel, Access Board, 1331 F Street NW., Suite 1000, Washington, DC 20004 or Fairhall@access-board.gov. Email is preferred.
May 8, 2013
Feds: Wellness Programs Must Accommodate Workers’ Disabilities

Employers must make accommodations to allow employees with disabilities to participate in their wellness programs, the U.S. Equal Employment Opportunity Commission said in a recently released informal discussion letter.

The letter was written in response to an employer’s question about a special program for employees with diabetes.

The employer wanted to waive its annual health insurance deductible for diabetic employees who met certain requirements. Specifically, eligible employees would have to enroll in a disease management program or comply with a doctor’s exercise and medication recommendations to receive the incentive.

Voluntariness

First, employers must ensure that their wellness programs are completely voluntary.

When wellness programs require that employees disclose a health condition, the law considers this a disability-related inquiry which the Americans with Disabilities Act strictly limits, EEOC explained. Disability-related inquiries and medical examinations are permitted as part of a voluntary wellness program as long as an employer neither requires participation nor penalizes employees who do not participate (see ¶633 of the Handbook).

The commission said that the employer’s diabetes plan seemed to meet ADA’s requirement that wellness programs be voluntary.

Accommodation

The commission reminded the employer, however, that if an employee’s disability prevents him or her from participating, the employer must determine whether there are any reasonable accommodations that could allow the individual to participate, such as waiving certain rules (see ¶500). “If a wellness program is voluntary and an employer requires participants to meet certain health outcomes or to engage in certain activities in order to remain in the program or to earn rewards, it must provide reasonable accommodation, absent undue hardship, to those individuals who are unable to meet the outcomes or engage in specific activities due to a disability,” EEOC wrote, citing 42 U.S.C. §12112(b)(5)(A).

The company also inquired about requiring that participants have a medication possession ratio greater than 80 percent, which identifies the extent to which an individual is taking prescribed medication.

“Assuming the program is voluntary and an employee is unable to meet the MPR because of a disability, the employer would need to provide a reasonable accommodation to allow the individual to participate in the plan and to earn whatever reward is available,” the commission responded.

For example, if an employee also had a disability that caused him to forget to take his medication, the employer could not bar him from participating as it could with an employee who was merely forgetful or noncompliant.

Incentives

EEOC declined, however, to comment on whether wellness program incentives amount to punishments for those who do not or cannot participate. The commission only noted that it “has not taken a position on whether and to what extent a reward amounts to a requirement to participate, or whether withholding of the reward from non-participants constitutes a penalty, thus rendering the program involuntary.”

The commission has said that wellness program incentives do not violate the Genetic Information Nondiscrimination Act but has repeatedly failed to say whether they are legal under the ADA. See EEOC Confirms That Wellness Incentives Do Not Violate GINA But Fails To Take a Position on ADA for more information.

EEOC letters are informal discussions and are not official opinions of the commission.
May 3, 2013
Call Center Complainant Advances ADA, FMLA Retaliation Claims

Most courts recognize that desperate employees fearful of losing their jobs sometimes make discrimination complaints in order to intimidate their employer and prevent termination. However, many courts also recognize that the Americans with Disabilities Act: (1) protects employees who have reason to believe that their disabled peers have been harassed and subsequently report the infraction to their employer; and (2) permits claims of a hostile work environment based on that harassment under ADA.

As a recent case illustrates, even if the employee’s retaliation claim under ADA“ hangs by the slenderest of threads,” what may pass for “workplace negativity warranting termination” also may constitute protected activity under ADA and other state discrimination laws. So ruled the U.S. District Court for the District of Massachusetts as it allowed a former call center employee’s retaliation claims to proceed to jury trial. The case is Surprise v. The Innovation Group, Inc., 2013 WL 59326 (D. Mass., Feb. 14. 2013).

Facts of the Case

Andrew Surprise worked for three years as a customer service representative and quality assurance associate at First Notice Systems, Inc., a clearinghouse for insurance claims, in Springfield, Mass.

According to Surprise, on at least five occasions, he watched two call center managers make unprofessional and discriminatory comments about a speech-impaired security guard. During an April 2010 group meeting, Surprise openly objected to the derogatory treatment of the security guard and told his department manager that he believed the other managers had discriminated against the guard because of her speech impediment.

In August 2010, Surprise complained in an anonymous, online company survey that: (1) his department’s understaffing required him to answer phones; (2) he observed mistreatment of a security guard; and (3) he witnessed customer service reps improperly dispose of private health information in regular waste bins (which, if Surprise’s allegations are true, violates the HIPAA privacy protections).

One month after taking the survey, Surprise requested a meeting with Terry Ronan, the company’s new senior vice president. In the one-and-one discussion, Surprise raised several issues and handed a copy of his survey responses to Ronan, which they together reviewed.

According to Surprise, he also complained to Ronan about not getting time off for chiropractic treatment and informed him that he soon would be applying for leave under the Family and Medical Leave Act. In response to these complaints, Surprise contended in court that Ronan became agitated.

After his discussion with Ronan, Surprise texted with a colleague and told him that Ronan said he would be announcing major departmental changes in a scheduled meeting the next day. The text messages set off a series of internal discussions and what the court called “the creation of disruptive rumors.”

In response to the rumor mill “stir” that Surprise had caused, Ronan consulted with Human Resources and inquired about Surprise’s personnel file to see if he had lawful grounds for dismissal. Satisfied that Surprise’s recent actions would support a cause for termination, he fired Surprise for negativity in the workplace (a violation of company policy) and insubordination. In turn, Surprise filed charges against First Notice alleging (1) retaliation for reporting discrimination in violation of both ADA and Massachusetts law; (2) refusal to grant FMLA leave and retaliation for request for FMLA leave; and (3) wrongful termination in violation of public policy for reporting HIPAA violations to First Notice management. He also filed a claim against Ronan for retaliation under Mass. Gen. Laws ch. 151B.

Court Weighs in

Although Surprise had put forth “scant” evidence to suggest his termination was somehow related to his protected ADA complaint, the district court denied summary judgment for First Notice. The court found that the “situation may present a so-called ‘mixed-motive’ case…where sufficient evidence is presented that an employer considered both a proscribed factor…and one or more legitimate factors…in making an adverse employment decision.”

Tellingly, the district court treated the claim of a hostile work environment based on harassment as actionable under ADA and Massachusetts law. The court said that it informed this opinion in concurrence with several circuit court decisions even though the 1st U.S. Circuit Court of Appeals, in which it sits, has not yet weighed in on the issue.

In addition, the district court ruled in favor of First Notice on Surprise’s FMLA interference claim, but denied the defendant summary judgment on the plaintiff’s FMLA retaliation claim. The company was within its right to deny his FMLA request, the court said, because Surprise had never submitted a medical certification.

Surprise testified, however, that he had informed his direct supervisor that he was ready to submit the completed medical certification only hours before he was suspended. Considering this evidence, the court found that “a reasonable juror could conclude that the proffered reason for plaintiff’s termination was pretextual.”

Finally, with regard to Surprise’s HIPAA-based claims, the court found in favor of First Notice, partly because of evidence that “he had lodged the very same HIPAA complaints months earlier and suffered no adverse action as a consequence.”

Employer Takeaways

This case has implications for employers regarding ADA and FMLA compliance.

ADA

ADA’s anti-retaliation provision prohibits employers from taking adverse employment action against an individual for engaging in protected conduct; for example, reporting discriminatory actions made against a disabled coworker.

Surprise showed that the plaintiff need only have a “reasonable belief” that the alleged victim of discrimination (in this case, the security guard) was disabled and that the observed treatment (insulting and mocking comments mostly done outside the guard’s presence) rose to a level of discrimination as defined by ADA and Massachusetts law.

The company contended that the guard’s missing teeth and unusual manner of speaking did not rise to the level of a speech impediment. But that uncertainty (and difference in opinion) of how ADA defines “disability” is what could get a company in trouble, particularly when your employee regards as “disabled” a victimized co-worker because of a physical or mental impairment.

FMLA

An employer has the right under FMLA to require that the employee support his request for leave with medical certification issued by the employee’s health care provider. When an employee fails to provide certification, “the employer may deny the taking of FMLA leave.” 29 C.F.R. 825.305(a)(d).

However, here’s the caveat: When an employee tells you that he or she intends to request FMLA leave, he or she has the right not to suffer adverse action as a result of that disclosure, even if he or she does not submit the necessary certification before the adverse action is taken against him or her.
April 29, 2013
Feds Warn Educators about Retaliating Against Students, Teachers

Educators must not retaliate against individuals who oppose discrimination, the U.S. Department of Education’s Office for Civil rights reminded school districts and colleges in new guidance issued April 24.

The guidance, which came in the form of a “dear colleague” letter, is the first of its kind. Guidance on the issue was needed now because “a significant portion of the complaints filed with OCR in recent years have included retaliation claims,” the department said.

The letter explains that educators andother recipients of the agency’s funds are prohibited from retaliating against students, parents, teachers, coaches and any other individuals who oppose discrimination.

For example, if an individual brings concerns about possible civil rights problems to a school’s attention, it is unlawful for a school to retaliate against that individual for doing so, OCR explained. Likewise, if an individual complains, testifies or participates in an OCR investigation or proceeding, it is unlawful for a school to retaliate against the individual. Retaliation can include intimidation, threats, coercion or discrimination.

“Individuals should be commended when they raise concerns about compliance with the Federal civil rights laws, not punished for doing so,” OCR said.

OCR warned educators that it will “vigorously enforce” its prohibition on retaliation (see ¶952 of the Handbook).

Enforcement begins with OCR attempting to enter into a voluntary agreement with the school. Such agreements usually contain a promise to refrain from the retaliation identified, an agreement to train employees on retaliation and monetary relief, among other things.

If a voluntary agreement can’t be reached, OCR said it may discontinue financial assistance to the school. The department said it also can refer the cases to the U.S. Department of Justice for judicial proceedings.

OCR enforces laws prohibiting discrimination based race, color, national origin, sex, age and disability. It also enforces those laws’ retaliation provisions.

The full letter, written by ED’s acting assistant secretary for civil rights, Seth M. Galanter, is available here.
April 23, 2013
Random Alcohol Testing for Probationary Employees Does Not Violate ADA, Court Rules

An employer’s random alcohol testing of probationary employees did not violate the Americans with Disabilities Act, despite federal agency guidance to the contrary, a federal district court has ruled.

U.S. Steel was able to show that its testing was job-related and consistent with business necessity, earning summary judgment for a lawsuit filed by the U.S. Equal Employment Opportunity Commission (Equal Employment Opportunity Commission v. United States Steel Corp., No. 10–12 (W.D. Penn. Feb. 20, 2013)).

EEOC sued on behalf of a class of employees, arguing that the testing amounted to a medical examination that was not consistent with business necessity, which would violate ADA (see ¶636 of the Handbook).

EEOC also alleged that the employer was violating the law by testing employees without a reasonable belief that they were under the influence of alcohol, citing its own guidance requiring such suspicion before testing.

Job-related and Consistent With Business Necessity

In considering the first allegation, the U.S. District Court for the Western District of Pennsylvania turned to the statute’s text, which states that a covered entity:

Shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity. (42 U.S.C. §12112(d)(4)(A))

U.S. Steel argued that its employees must be completely alert since they work at dangerous heights with large machinery and handle hot, toxic and combustible materials.

When a problem with drunken employees surfaced at U.S. Steel’s Gary, Ind. plant, the company and its union jointly developed a random testing plan for probationary employees.

The testing policy is job-related and consistent with business necessity because it enables the company to detect alcohol impairment on the job, eliminating hazards in the workplace, U.S. Steel argued.

The court agreed, noting that “there is no question that maintaining workplace safety is a legitimate and vital business necessity.” Whether conducting random testing only on probationary employees sufficiently served that safety rationale, however, is a separate question, the court said.

Disparate application

The court’s controlling appellate court — the 3rd U.S. Circuit Court of Appeals — has held that disparate application of a medical testing policy among similarly situated employees may undercut an employer’s business necessity argument. The court said in Tice v. Centre Area Transp. Auth., 247 F.3d 506, 518 (3rd Cir. 2001):

[J]ust as we routinely hold that evidence of differential treatment among similarly situated employees is probative on the issue of discrimination in Title VII suits, an employer’s differential application of a medical examination requirement is relevant evidence of what is “necessary” to the employer’s business.

To avoid undercutting its business necessity defense, the employer must explain why it implemented the testing for only a subset of employees. Otherwise, a court could find the testing too broad and intrusive to meet ADA’s requirements, the district court explained.

U.S. Steel met that burden by showing that long-time employees have proven they can follow safety requirements but probationary employees have not. “Common sense dictates that new hires would be comparatively less skilled at performing their jobs, are relatively unfamiliar with company rules, and would not have fully internalized the importance of workplace safety,” the court said, agreeing with the employer. And in a place like U.S. Steel’s plant, “[a]ny lapse in concentration can be catastrophic.”

It also is difficult for managers to select new hires who might be under the influence for testing, the court said. It takes time for managers to develop a reference point for the behavior of new hires and probationary employees are not assigned to one particular manager. These barriers are further complicated by the fact that employees wear heavy protective gear that obscures their faces and muffles their speech. “Simply put, probationary employees are not ‘similarly situated’ with regular employees,” the district court said. “It would be entirely consistent with precedent to permit random testing on a group of similarly situated employees who pose an elevated risk to workplace safety.”

Moreover, randomly testing all employees would be inconsistent with ADA’s goal of limiting medical testing. “In order to maintain deterrent value, any expansion in the breadth of a testing program must be accompanied by an increase in the frequency of testing,” the court said. However, expanding the scope and frequency of testing would increase the possibility that an employee’s medical conditions would be revealed. That would violate ADA’s requirement that testing be narrowly tailored rather than broad and intrusive, the court explained.

EEOC’s Guidance Is Not Persuasive

When the court failed to find support for EEOC’s arguments in the statute, the commission offered its own guidance as proof that employers may not test employees without a reasonable belief that they are under the influence of alcohol.

According to EEOC’s Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, “an employer must have objective evidence that an employee either cannot perform the essential functions of the job or poses a direct threat in order to subject the employee to a medical examination or inquiry.” Because a random alcohol breath testing policy cannot supply the requisite individualized, reasonable suspicion of intoxication, such testing must be per se invalid, the commission argued.

The court, however, disagreed. Because nothing in the statute specifically requires employers to possess suspicion, reasonable or otherwise, the court cannot create such a requirement. “EEOC has given no reason to believe that its assertion an employer must possess objective evidence of an employee’s inability to perform prior to invoking the ‘job-related and consistent with business necessity’ defense is tethered to the statutory language,” the court said. Such a standard “defies common sense in circumstances when employers cannot detect evidence of impairment through layers of protective gear,” the court continued.

The guidance’s “insistence on objective evidence of intoxication even when employers cannot obtain such evidence is unpersuasive,” the court concluded, granting summary judgment for the employer.
April 17, 2013
Fifth Circuit: Student Can Continue With Claim That School Failed to Prevent Abuse

A student with a disability can continue with her claim that her school district failed to properly implement her individualized education program that was designed to protect her from sexual abuse, the 5th U.S. Circuit Court of Appeals ruled.

The student presented enough evidence to establish an inference of discrimination, in violation of Section 504 of the Rehabilitation Act of 1973, the court explained in Andricka Stewart v. Waco Independent School District, No. 11–51067, 2013 WL 1091654 (5th Cir. March 14, 2013).

Andricka Stewart, a student in the Waco Independent School District, had mental retardation, a speech impairment and a hearing impairment. After an incident involving sexual contact between her and another student, the school district modified her IEP to require that she be separated from male students and remain under close supervision while at school (see ¶913 of the Handbook).

Despite this plan, she was involved in three more instances of sexual conduct, which she characterized as “abuse.” The school, however, determined that she was complicit in at least two of the incidents and suspended her.

She sued, but the U.S. District Court for the Western District of Texas dismissed her claims.

On appeal, she alleged that the district was deliberately indifferent to the abuse and grossly mismanaged her IEP (therefore failing to accommodate her disability), all in violation of Section 504. Moreover, the suspensions deprived her of educational benefits, she said (see ¶915).

Deliberate Indifference

The court first examined Stewart’s deliberate indifference claim — a standard the U.S. Supreme Court defined in its ruling in a case involving Title IX of the Education Amendments of 1972, Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999). (For more on bullying standards, see Allowing Bullying of a Student With a Disability Amounts to Denial of FAPE, District Court Finds.)

The deliberate indifference standard is exceedingly high, the court said, because it requires the plaintiff to show a pattern of similar violations. And a discrimination claim based on student-on-student harassment requires even more: Stewart must provide evidence of harassment that is so severe, pervasive and objectively offensive that it interfered with her education, the court explained. She also must show that the school district’s response to the harassment was clearly unreasonable.

The 5th Circuit determined that Stewart’s complaint fell short of this standard. Even assuming that the abuse denied her equal access to educational opportunities, she failed to demonstrate that district’s responses were “clearly unreasonable” under the circumstances.

After the first incident, the school district modified her IEP to keep such incidents from occurring in the future. She never explained why she found the district’s responses inadequate or why she believed the responses left her susceptible to further abuse.

“We are asked to infer that the District’s responses were clearly unreasonable because it disciplined Stewart and the abuse did not end after the first three incidents,” the court said. But, “the fact that measures designed to stop harassment prove later to be ineffective does not establish that the steps taken were clearly unreasonable in light of the circumstances known by [the district] at the time.”

Although the district’s responses may leave something to be desired, there is no evidence that the responses were so clearly unreasonable as to rise to the level of deliberate indifference to harassment, the 5th Circuit said, dismissing that claim.

IEP Mismanagement and Failure to Accommodate

Stewart provided enough evidence, however, to continue with her claims that mismanagement of her IEP amounted to a failure to accommodate her disability.

While a “failure to accommodate” claim usually would involve an entity that refused to make accommodations, a plaintiff can argue that ineffective accommodations amount to the same failure, the court explained.

Even if the district provided Stewart with reasonable accommodations when it initially modified her IEP, the three subsequent incidents could prove that the modification was ineffective. However appropriate the district’s initial response, “it had an ongoing responsibility to calibrate Stewart’s IEP to effectively address the behaviors it intended to prevent by keeping her separated from males and under close supervision,” the 5th Circuit said. A school’s “continued use of ineffective or inadequate methods when confronted with multiple instances of a specific type of misconduct becomes less defensible over time.”

Given the repeated and specific instances of sexual misconduct, the case needs further consideration, the court determined, reversing the dismissal of her claim and remanding the case for further consideration.

The 5th Circuit cautioned, however, that its opinion should not be read to make school districts insurers of the safety of special-needs students. “We emphasize that courts generally should give deference to the judgments of educational professionals in the operation of their schools. Isolated mistakes made by harried teachers and random bad acts committed by students and other third-parties generally will not support gross-misjudgment claims,” the court explained. However, at this stage, “we cannot say definitively that this case involves only the latter.”

Training

What's New in Title I of the ESEA?

A 15-20 minute overview of recent developments in Title I and President Obama’s “ESEA Flexibility” initiative, by two of the co-authors of the just-published 8th edition of The New Title: The Changing Landscape of Accountability. The speakers address the sweeping Title I changes introduced by ESEA Flexibility waivers as well as other new policy amendments implemented in the two years since the last edition of the book.
Federal Reporting Requirements for Education Grants – “Cloud” Accountability Has Arrived!

Grant recipients have seen a dramatic increase in reporting requirements as part of a push for public transparency. Reporting requirements under the American Recovery and Reinvestment Act (ARRA) and the Federal Financial Accountability and Transparency Act (FFATA) have added new layers of complexity to the numerous financial and performance reporting requirements. In this 90-minute webinar, Bonnie Little of Brustein & Manasevit will help you untangle the complexities surrounding reporting requirements for education grants. Ms. Little will identify the various sources of reporting requirements; discuss current trends in reporting, data collection and data usage; and provide attendees with practical advice on complying with reporting mandates.

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New Architectural Barrier Complaint Form Available for Public Review

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Call Center Complainant Advances ADA, FMLA Retaliation Claims

Feds Warn Educators about Retaliating Against Students, Teachers

Random Alcohol Testing for Probationary Employees Does Not Violate ADA, Court Rules

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