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.


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.

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”

Court Upholds Validity of Gainful Employment Rule

In a decision issued earlier today, the federal court sitting in the Southern District of New York upheld the Department of Education’s gainful employment rule and dismissed the challenge brought by the NY Association of Proprietary Colleges (APC).   The APC put out a statement disagreeing with the ruling and noting they “will be looking quite closely at all options.”

We are still reviewing this decision, but wish to note that there is still a pending lawsuit in the DC federal court being brought by the Association of Private Sector Colleges and Universities.  Argument was held in that matter on May 20, 2015.  Although the Court in DC will likely need to address the points raised by the APC court (especially if the DC court disagrees with the APC Court), the APC Court decision is not dispositive on the matter and the DC Court is free to rule as it sees fit.

MAY 28, 2015 UPDATE: Here’s Inside Higher Ed‘s report on the decision.