House Committee Approves Labor-HHS Appropriations Bill

Earlier today, as reported in a Committee press release, the House Appropriations Committee approved the draft fiscal year 2016 Labor, Health and Human Services funding bill on a vote of 30-21.   The draft bill includes “$153 billion in discretionary funding, which is a reduction of $3.7 billion below the fiscal year 2015 enacted level and $14.6 billion below the President’s budget request.”  The bill text is substantially the same as the draft passed out of subcommittee on June 17.  The only changes to the text, as discussed in the press release, include the following amendments:

  • Rep. Cole – The amendment makes technical and non-controversial changes to the bill and report. The amendment was adopted on a voice vote.  
  • Rep. Roybal-Allard – The amendment designates $750,000 in funding within the Children and Families Services Programs account to be used for a Child Poverty Study. The amendment was adopted on a voice vote.
  • Rep. Kilmer – The amendment adds report language urging the Department of Education to provide clear and timely guidance to local school districts on how to calculate tax rates for the purposes of receiving certain types of federal aid. The amendment was adopted on a voice vote.
  • Rep. Harris – The amendment prohibits funding to implement or enforce a National Labor Relations Board ruling that allows certain groups of employees within a larger company to form separate unions. The amendment was adopted on a voice vote.
  • Rep. Kaptur – The amendment adds report language directing the Secretary of HHS, in consultation with the Department of Veterans Affairs (VA), to provide a report on certain prescription drug costs for Medicare, Medicaid, and the VA, as well as comparisons of these costs to other countries. In addition, it directs HHS to review and report on steps taken to competitively reduce prescription drug costs since 2001. The amendment was adopted on a voice vote.

As the bill summary for the draft bill explains, the bill funds the Department of Education at $64.4 billion, which is $2.8 billion below the fiscal year 2015 level and $6.4 billion below the President’s budget request.”  Notably, the bill retains prohibitions on the Department of Education from “moving forward with regulations to establish a college ratings system, place new requirements on teacher preparation, define ‘gainful employment’ and ‘credit hour,’ and dictate how states must license institutions of higher education.”  Rep. Rosa Delauro (D-CT) attempted to remove the spending prohibition related to gainful employment, but her amendment was defeated in a voice vote.

The bill also contains the following elements related to education:

  • Special Education – The bill includes $12 billion for IDEA special education grants to states, an increase of more than $500 million over the fiscal year 2015 enacted level, which will increase the federal share of special education funding to states from 16 percent to 17 percent.
  • Charter Schools Program – The bill includes an increase of $22 million over the fiscal year 2015 enacted level for grants to support the creation of new charter schools, for a total of $275 million.
  • Pell Grants – The maximum Pell Grant award is increased to $5,915, funded by a combination of discretionary and mandatory funds.
  • Impact Aid – The bill provides nearly $1.3 billion for Impact Aid, an increase of $10 million above the current enacted level.

The Senate Appropriations Committee takes up its version of the Labor-HHS appropriations bill tomorrow at 10:00am.  The Senate appropriations subcommittee approved the Labor-HHS appropriations bill on June 22.


Amendment to Remove Gainful Employment Rule Spending Limitation Fails in House Approps Committee

The House Committee on Appropriations is currently considering the draft appropriations bill passed by the House Appropriations Subcommittee on Labor, Health and Human Services, Education, and Related Agencies on June 17.  As mentioned previously, Section 309 of this bill contains a limitation on the use of funds to implement and administer the gainful employment rule.  Rep. Rosa Delauro (D-CT) offered an amendment (at 5:24 in the video) to remove this limitation from the  draft.  Rep. Tom Cole (R-OK) rose to the defense of the provision.  The amendment failed on a voice vote.

Senate Sub Committee Passes Labor-HHS Appropriations Bill; Full Committee Vote Tomorrow

In a markup held yesterday, the U.S. Senate Appropriations subcommittee on Labor, Health and Human Services, Education and Related Agencies (“Labor-HHS”) released a summary statement setting forth the key elements of the a $153.2 billion appropriations bill that passed the sub committee.  The full Senate Committee on Appropriations will take up the draft bill on Thursday.  The House Committee on Appropriations is currently considering the draft bill passed by the House Appropriations Subcommittee on Labor, Health and Human Services, Education, and Related Agencies on June 17.

“While the measure is $3.6 billion below the FY2015 spending level,” the summary statement notes, “the subcommittee increased funding for the National Institutes of Health, Community Health Centers, Head Start and the Child Care and Development Block Grant. ”  Of note, the bill would increase the maximum Pell Grant award from $5,775 in the 2015-16 school year to an estimated $5,915 for the 2016-17 school year.  In addition, the bill “prohibits the Department [of Education] from moving forward with regulations or policies to develop or implement a college ratings system, define gainful employment, establish requirements for the State authorization of higher education programs, define credit hour, and establish a new accountability framework for teacher preparation programs.”  Notably, Sections 309-313 of the House version (also see the draft conference report) of the appropriations bill has a similar limitation.

The other highlights for the Department of Education, as set forth in the summary, include:

  • The bill funds the Department of Education at $65.5 billion, a $1.7 billion decrease from FY2015.
  • Title I Grants to LEAs – $14.560 billion, a $150 million increase above FY2015. Title I provides basic and flexible funding to low-income school districts, that allows States, local school districts, and schools to decide how to best use limited resources improve student outcomes.
  • Individuals with Disabilities Education Act (IDEA) Grants to States $12.415 billion for grants to States under part B and C of the IDEA, a $125 million increase above FY2015, including preschool grants and grants for infants and families. These programs support special education services for children with disabilities from birth through age 21.
  • Charter Schools – $273 million, an increase of $20 million above FY2015. This program supports school choice through the planning, design, initial implementation, and expansion of successful charter schools.
  • Impact Aid – $1.289 billion, level with FY2015. The Committee recommendation maintains support for the Impact Aid program which provides flexible support to local school districts impacted by the presence of federally owned land and activities, such as military bases. The Committee rejects the administration’s proposed elimination of the Federal property program.
  • Supporting Effective Educator Development (SEED) program – The Committee increases the SEED set-aside within the Teacher Quality State Grants program from 2.3 percent to 5 percent. This program supports evidence-based approaches for recruiting, training, or providing professional enhancement activities for teachers and school leaders, particularly for high-need schools most likely to face shortages in these areas.
  • Supports State and Local Flexibility in Education – The Committee recommendation includes a new general provision affirming that the Federal government cannot mandate or incentivize in any way the adoption of any specific standards or assessments, including Common Core.

It is notable that Senate Democrats intend to block all appropriations bills in an attempt to force negotiations that will end domestic spending caps under the Budget Control Act.

Welcome to the Blog

We wanted to extend a very warm welcome to those of you who are new to the Higher Ed Law Blog.  We try to cover all things higher education and ed tech here – although we certainly stray into K-12 and education reform issues, like charter schools, education savings accounts and other tools to create school choice for parents.

Please check out our “About Us” page to learn more about the firm and the folks writing on the blog.  Our “higher ed resources” page attempts to list common higher ed web site and some links to key guidance documents and regulations.  While our calendar is a work in progress, we are hoping to list as many higher ed and ed tech conferences as we can – whether or not we are speaking or attending the conference.  Please send us your event and we will be happy to add it.

Of course, your suggestions are very welcome.  While we don’t allow comments on the site, we do welcome your thoughts.  Please feel free to send your comments to Dennis Cariello at   This goes for comments of a technical nature, as well as comments related to the views expressed on this site.

So, thanks again for stopping by.  We really hope you like the blog.

DC Court Upholds Gainful Employment Rule

Earlier today, the District Court for the District of Columbia held that the US Department of Education’s (“Department”)”‘gainful employment‘ regulations—including the current debt-to-earnings test and disclosure, reporting, and certification requirements—survive this court challenge in their entirety.”  [JUNE 24 UPDATE – here are the Chronicle of Higher Education and Inside Higher Ed reports on the decision.] [ANOTHER JUNE 24 UPDATE – here are the statements from Department Secretary Arne Duncan and  APSCU’s General Counsel Sally Stroup.]  This follows a disappointing decision from the Southern District of New York also upholding the validity of the Department’s Gainful Employment Rule (“GE Rule”) published by the .  In so doing, the Court dealt an important win to the Department, although the effort does not seem to have concluded.  Not only may plaintiff Association of Private Sector Colleges and Universities (“APSCU”) appeal this decision, but the currently pending spending limitations in the Labor HHS appropriations bill preventing the Department of Education from using federal funds to “implement, administer, or enforce” the gainful employment rule (see page 119).

We will have a complete analysis of the decision in short order.    On a first read, however, it was interesting that the court accepted the Department’s argument that the clause “in a recognized occupation” in the phrase “gainful employment in a recognized occupation” sufficiently modified “gainful employment’ to make the phrase ambiguous enough to allow the Department to impose a debt-to-income metric.  Whatever the merits of the the GE Rule or the other merits of the decision, this seems pretty tenuous.  Indeed, the plain meaning of that phrase “recognized occupation” would seem to referred to something like Standards of Occupational Classification Codes.

Also interesting is that the Court disregarded the prior administrative rulings in cases like In re Academy for Jewish Education, where the Department argued that the program did not lead to gainful employment because the education did not provide skills to the student that would enable to them to hold a job.  This APSCU Court found that the because the training in question did not lead to any employment, “the Department had little reason to settle on a more nuanced definition for the full ‘gainful employment’ provision.”  This seems to miss the mark – the point is that the Department’s position in that case (and other administrative cases like it) was the Department’s interpretation of the whole phrase. Continue reading “DC Court Upholds Gainful Employment Rule”

Update to Comment Period on Student Loan Discharge Data Collection

On June 11, 2015, we discussed the issue of student loan discharge by virtue of the student having a state law cause of action against the school (pursuant to 34 C.F.R. § 685.206(c)(1)).  We also reported that “on June 10, the Department published a notice in the Federal Register seeking comment on a proposed “emergency collection” that would “facilitate the collection of information for borrowers who believe they have cause to invoke the borrower defenses against repayment of a loan.” (It does not look like there is a comment period specified).”  On June 16, the Department published a correction to the June 10 Federal Register Notice providing for a 60-day comment period for this collection. As a result, all comments must be due by August 17, 2015.

Jeanne Allen Takes Politico To Task for Calling Florida Education Reforms “Risky”

Here’s an interesting critique of a recent Politico piece (“Bush’s Risky Education Vision”) related to Governor Jeb Bush’s education reform record from one of the leaders of education reform, Jeane Allen.  On her blog,  Ms. Allen takes Politico to task for everything from getting the history of education reform wrong, as well as the idea that Governor Jeb Bush’s reforms were risky:

As Governor, Jeb Bush took on an unwieldy system and returned power to parents and citizens who had lost faith in public schools and whose own individual preferences and needs had long been ignored.  Students with special needs who had fought for services for their children obtained the right to choose schools to meet those needs. Thousands more families would benefit from scholarships aimed at ensuring they have the same opportunities afforded those who find themselves with more advantages. . . . Today over 615 charter schools serve more than 230,000 Florida students for whom traditional schools were not working.  . . . When Bush entered office, in 1999, more than sixty per cent of minority and low-income fourth graders couldn’t read at a basic level, which doomed them to failure in future grades. Barely half of Florida’s high-school seniors were graduating.

After Bush’s programs were enacted, Florida’s gains in math and reading, according to the federally funded Nation’s Report Card, were larger than they were anywhere else in the country—save Washington, D.C.  Florida’s graduation rate has improved twenty-five per cent, and is at an all-time high. This reversal came about because Bush measured results, held schools accountable, and exposed them to competition. Even as adults vested in the system protested, student achievement accelerated.  On top of that, higher education has exploded, improving life and economic conditions for scores more individuals at all levels of life.

She raises some good points.  No matter your views on the presidential candidates, it is difficult to describe any of the reform efforts undertaken by Governor Jeb Bush as “risky.”  Indeed, given that in 1983 we learned we were a “Nation At Risk” due to its poor education system, the status quo may have been the riskiest move of all.

(Note, I am a board member of the Center for Education Reform, a group started by Ms. Allen).

Feeling Lost Given the Multitude of Ed Tech Conferences? This May Help.

If you are like me, you attend a number of education conferences each year.  I Think its important to keep up on what’s going on in the industry, what educators and edupreneurs are thinking, and where the policy debate needs to go as we fight for better outcomes for students in both lower (K-12) and higher education.  That said, if you are also like me, you get lost when it comes to figuring out where/when the conferences are and which ones to attend.  Although I hope our calendar feature on this blog will help, Betsy Cocoran of developed a very handy chart of ed tech conferences.   She’s even labelled the conferences by the intended audience: educators; business of ed tech (funders and edupreneurs); and other specialty groups.

Department of Education Issues Reminder About State Authorization Rule

On June 19, the U.S. Department of Education (“Department”) published a Dear Colleague Letter (“June 19 DCL”) to “remind[] postsecondary institutions of the requirement to have certain types of State oversight and approvals in place to participate in the Title IV” programs.   As part of the program integrity regulations, the Department published revisions to 34 CFR 600.9 that required, for Title IV compliance purposes, “an institution [ ] be legally authorized by a State to provide a postsecondary education program, and the State must have a process to review and act upon student complaints about that institution.”  to that end, the Department requires that states must (1) have some process of actively approving/licensing institutions within their jurisdiction and (2) have a process “to review and appropriately act on complaints” about institutions of higher education.

NOTE: This rule and the June 19 DCL applies to on-ground programs only — the Department published a rule related to online programs as part of the program integrity rule package which was overturned by a court decision and a subsequent attempt at rule making has not yet produced a published rule for online programs.   There are, however, certain disclosure requirements for online programs operating in a state (for example, providing notice of the office in that state to which student complaints may be directed).

Staring with the Preamble to the state authorization rule, and in repeated publications, the Department delayed enforcement of the rule until July 1, 2015.  The June 19 DCL makes clear that no new extensions will be granted, although it seems that the Department will be taking a light touch to enforcement of this rule, preferring to work with states that do not meet the requirements (thus putting the states in their jurisdiction at risk for loss of Title IV eligibility).  Indeed, the Department provides that “States and postsecondary institutions that have not yet done so [met to discuss compliance with this rule] should work together to ensure compliance with the regulatory requirements at 34 CFR 600.9(a) and (b).”  It seems the Department is unlikely to take significant action if a state has a non-complaint process for recognition or complaint review process, but the Department will rather focus on efforts to fix the situation with that particular state.

For institutions, you need to understand (if you haven’t already) how and why you are approved by your state and whether there is a complaint process that applies to your institution.  For example, while some institutions may  be exempted from State approval or licensure based on accreditation or years in operation, others institution types may not use this exemption.  Also, there needs to be a compliant process for handling complaints – and you should be directing your students (as part of your required consumer disclosures – 34 CFR 668.43) to the agency that receives such complaints..  If you have any questions, feel free to contact us to help you work through the process.

Recap of Day 1 of the Global Education Conference

Day one of the Global Education Conference 2015 was thought provoking and featured a number of interesting discussions – both on the dais and off. For me, i was looking forward to the first and last sessions, on Credentialing 2.0 (I did a recap of this session previously)and Edupreneurship respectively, and they did not disappoint.  One big take away is that I need to read Professor Bob Schwartz’s study on the Swiss system of vocational education.  Also, the lunch session, titled “A Conversation About Educational Access, Opportunity& Leadership” and the session on the Vergara case were also very interesting and thought provoking.

The conference this year  seems much heavier on the academic side than in years past, and that is a welcome evolution – I hope more conference will draw from the faculty expertise – on both theory and practice — in future ed tech and ed policy discussions.  Its a welcome view and creates a fun dynamic when paired with the “edupreneurs” typically featured at the conference.

There seems to be a bit of a consensus that the flipped classroom is what works best.  This was apparent during the lunch session.  For example, Edith Cooper (Global Head of Human Capital Management, Goldman Sachs), discussed how Goldman trains employees through online programs and offers experts in the topic to do 1-on-1 coaching and further instruction.  On the same panel, Jim Ryan (Dean, Harvard Graduate School of Education), offered that the best use of class time is not imparting information through the lectures, but rather applying the information learned previously through project-based learning.  Michael D. Smith (Edgerley Family Dean of the Faculty of Arts and Sciences, Harvard University) offered similar comments.

Surprisingly the same theme came up at the Edupreneurship panel.  Chip Paucek of 2U explained how the MBA program at UNC has a ground based element — that he did not originally support) – but which have proved very popular.  Even more interesting, Aaron Skonnard of Pluralsight talked about how users of the online program have physically gotten together with other users to form groups to study and work though problems.  Maybe flipped/hybrid learning is not not only supported by Goldman and the educators at Harvard, but people may intuitively be creating such environments.

The session on Vergara v. State of California was also a highlight. For those that don’t know, Vergara is a case that successfully challenged the tenure and teacher rights laws in California.  Suffice to say, the laws in California make firing a tenured teacher for performance based reasons extraordinarily difficult,  The lawyers involved in the case presented a summary of their arguments, and a panel of two of the expert witnesses involved in the case, together with former U.S. Department of Education Deputy Secretary James Shelton, discussed the implications of the case.  While I can’t say there were any resolutions of these issues, it was useful hearing the arguments – and we all should be watching the case as it winds its way through the appellate system

In all, its been a great start to the conference.