Congress and White House Continue Budget Debate

The Budget debate raged on last month, and both Congress and the President traded remarks regarding the fight over fiscal year 2008 (FY08) appropriations. While the Senate took a week-long break, House leaders continued commenting on the current standoff with some asking for a budget summit while others levied threats regarding other White House initiatives. When the Senate comes back next week, there will still be a lot for work to do, and not very much time to do it.

On October 7 at the National Fallen Firefighters Memorial in Emmitsburg, Maryland, House Majority Leader Steny Hoyer (D-MD) spoke with the President regarding the appropriations problem. Both agreed that a government shutdown would be bad policy, but the White House continues to assert its stance that Congress should not exceed the spending limits proposed in the President’s Budget. The President has also stated his opposition to any sort of budget summit before Congress passes any of its spending bills. Instead, he has continued to call for Congress to conference on the twelve different spending bills and send them to his desk.

Meanwhile, House Budget Chairman John Spratt (D-SC), speaking at the National Press Club on Tuesday, said that House Democratic leaders might hold up passing an emergency appropriations bill for the Iraq War until next year in order to gain “leverage” with the White House in fiscal 2008 spending negotiations. Another option, for the sake of finishing work on appropriations before Christmas, Democrats may be willing to lower their spending now, only to restore that funding in next year’s war supplemental, a bill that the President is very unlikely to veto.

Senate Majority Leader Harry Reid (D-NV) has stated his intention to send at least one spending bill to the President before the beginning of November. Senate Labor-HHS-Education Appropriations Subcommittee Chairman Tom Harkin (D-IA) suggested that his subcommittee’s bill might be the first to reach the President’s desk. Next week, after finishing work on the Commerce spending bill, the Senate plans to move on to the Labor-HHS-Education bill. Harkin expects a quick conference, and wants to send the bill to the President by November 1. Once the President signs the bill, or follows through on his veto threat, Congress will have a clearer picture of what direction they need to go in order to get their spending priorities past the President’s desk.

Resources:
George Cahlink, “Spratt: House Democrats Could Delay War Supplemental to Gain Spending Talks Leverage,” Congress Now, October 9, 2007.
Alan K. Ota and David Clarke, “White House Dashes Talk of Budget Summit,” CQ Today, October 10, 2007.
Author: SAS

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OCFO Reorganization in Effect

On October 2, the Office of the Chief Financial Officer (OCFO) at the U.S. Department of Education (ED) put into effect a realignment that the office began working towards recently. Among other things, the new reorganization has:


• Created the Financial Management Operations (FMO) Reporting and Analysis Group, combining the functions of the Grants Management Improvement Team with those of the financial and performance reporting functions already in FMO;
• Established four new organizational subcomponents in FMO to more closely follow OCFO’s business processes, including creating a Receivables Group, which combines the work of the Debt Management Group with the accounts receivables staff;
• Created the Grants Initiatives and Support Staff in Financial Systems Operations (FSO), to work with systems staff to evaluate the impact of government-wide grant policy on their systems, and to manage the Application Control Center;
• Combined the travel policy team with the travel system functional team in FSO;
• Moved the functions of the Financial Transaction, Payments Processing and Reporting Group from FMO to the Financial Systems Transaction Group in FSO;
• Created a single organization to oversee the agency's audit resolution activities by migrating the Internal Control Evaluation Staff (ICES) staff to Financial Improvement and Post Audit Operations (FIPAO).
• Finally, the grants policy analysis and training functions are now part of the newly created Risk Management Service in the Office of the Secretary.

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Supreme Court Hears Oral Argument on IDEA Private Placement Right to FAPE

On Monday, October 1, 2007, the U.S. Supreme Court heard oral arguments in New York City Board of Education v. Tom F., on Behalf of Gilbert F., a Minor Child. The Supreme Court will decide whether children with disabilities who are placed in private schools by their parents, without first attending public school, are entitled to tuition reimbursement when the public school can not provide a free and appropriate education (FAPE).

Under the Individuals With Disabilities Education Act (IDEA), “[i]f the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private preschool, elementary school, or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate.” 34 C.F.R. § 300.148(c) (emphasis added).

Tom F. received tuition reimbursement for his son’s private school placement for two years because the school district was unable to provide his son a FAPE. Later, when the school district determined it could provide a FAPE in a public school, Tom F. requested a due process hearing. Tom F. challenged the appropriateness of the individualized education program (IEP) and placement, contending that the IEP was inappropriate and continued private placement was necessary.

A hearing officer found that the public placement was inappropriate and granted Tom F.'s request for tuition reimbursement. On appeal, a state review officer affirmed the hearing officer's decision. The school district appealed again and the U. S. District court reversed the decisions of the impartial hearing officer and state review officer, and held that IDEA does not require a school district to reimburse a parent if the child has never been enrolled in public school. The U.S. Court of Appeals for the Second Circuit vacated and remanded the decision. The Second Circuit held that the IDEA was not meant to deny reimbursement to students who have never been enrolled in public school.

If the Supreme Court affirms the decision by the Second Circuit, parents will have the right to obtain reimbursement from the public school even if the child was never enrolled in a public school special education program. Parents, however, will still be required to show that the district's proposed program was inappropriate and that the private special education program they chose is appropriate, consistent with the established tuition reimbursement remedy authorized by the IDEA.

Source: http://www.wrightslaw.com/news/07/nyc.tomf.htm
Author: TRW

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Congressional Staffers Discuss NCLB High School Proposals

Thursday, October 4, the Alliance for Excellent Education hosted a forum where local, state, and national education leaders convened to discuss federal strategies for improving the achievement of the nation’s struggling high school students. The first session of the forum involved a discussion regarding High Schools and No Child Left Behind.

Panelists included:
• Jill Morningstar, House Education and Labor Committee – Majority Staff;
• Kirsten Duncan, House Education and Labor Committee – Minority Staff;
• Melissa Rohrbach, Senate Health, Education, Labor and Pensions Committee – Majority Staff; and
• Lindsay Hunsicker, Senate Health, Education, Labor and Pensions Committee – Minority Staff.

According to the Senate staff members, a Senate draft will likely include a second¬ary-school program modeled after Sen. Jeff Bingaman’s (D-NM) Graduation Promise Act, which will direct $2.5 billion for low-per¬forming high schools to implement comprehen¬sive improvement strategies. The Senate is also contemplat¬ing an investment parallel to Title I, specifically directed to secondary schools. In addition, the Senate may be looking at teacher preparation and profes¬sional development as a possible answer to rais¬ing high school curriculum to a level that’s more applicable to college and the workforce.

On the House side, majority policy adviser Jill Morningstar delivered good news to middle school advocates, saying the com¬mittee is looking forward to receiving Rep. Raúl Grijalva’s (D-AZ) Success in the Middle Act, H.R. 3406, as an amendment to the draft NCLB bill, once the committee moves forward with a mark up. Morningstar said the legislation will provide resources to the middle schools that feed into some of the lowest-performing high schools around the country. She was unable to provide a specific schedule for when House Education and Labor Committee Chairman George Miller (D-CA) would finally move forward with the bill, but hinted that a markup may be held sooner than later.

Resources:
Kris Kitto, “Senate Eyes High School Reform in New Law,” Education Daily, October 5, 2007.
Author: SAS

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House Passes Inspectors General Reform Bill

H.R. 928, the Improving Government Accountability Act, passed the House on Wednesday, October 3, by a vote of 404-11. The bill will give inspectors general (IGs) more autonomy with the agencies they oversee. The bill would set seven-year terms for the more than 60 IGs and would restrict the circumstances under which an inspector general could be fired. The legislation would give IGs greater budgetary independence and would create an independent council intended “to increase the professionalism and effectiveness” of those serving in the post.

A number of amendments were adopted on the House floor, including one that requires IGs to notify Congress if their budget requests are inadequate, balancing the need for IGs’ independence with the need for streamlined budget authority. Another amendment requires annual inspector general reports on program redundancy within federal agencies. Once again, the hope is that these provisions will help keep IGs independent, but will still require that Congress hold them accountable.

Although the bill passed by an overwhelming majority, the President has discussed a possible veto threat against the bill. The White House argued in a statement of administration policy that the bill would improperly diminish presidential control over budgets and interfere with presidents’ constitutional authority to remove inspectors general when warranted. However, the odds of holding to such a threat in the face of such overwhelming support for the bill is unlikely. When asked about the large amount of minority support, House Majority Leader Steny Hoyer (D-MD) speculated that Republicans were “hard-pressed to vote against an effort to prevent waste, fraud and abuse.”

Sen. Claire McCaskill (D-MO) plans to combine S. 1723, her own IG reform bill, with legislation from Sen. Susan Collins (R-ME) that seeks to increase oversight of federal contracting. The Senate hopes that the larger package will be up for markup sometime in November. However, as is the case with most pending legislation, the bill is subject to the frantic end of the year schedule that Congress works through.

Resources:
Kathleen Hunter, “House Passes Provisions for Enhanced Independence of Inspectors General,” CQ Today, October 3, 2007.
Author: SAS

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House Republicans Introduce WIA Bill

Thursday, October 4, Republican members of the U.S. House Committee on Education and Labor introduced H.R. 3747, the Workforce Investment Improvement Act. The legislation builds upon reforms proposed by Republicans in recent years to strengthen and improve America’s job training system. The bill constitutes the first significant step Congress is taking towards reauthorizing the Workforce Investment Act (WIA). However, future steps will be impeded by the waning Congressional schedule and the focus on fiscal year 2008 appropriations and other higher priority issues.

The Workforce Investment Improvement Act would help improve job training opportunities for Americans striving to get back to work by streamlining unnecessary bureaucracy, increasing cooperation among workforce development partners, allowing faith-based service providers to participate in the job training system, and promoting the development of regional strategies to foster economic development, expand employment and advancement opportunities for workers, and promote the creation of high-skill and high-wage opportunities.

Although the Republicans made a big production over the bill’s introduction, the committee is neck deep in No Child Left Behind reauthorization at the moment. As such, movement on this bill is unlikely to come any time soon. Another factor in the bill’s movement is whether Democrats, and specifically Committee Chairman George Miller (D-CA), will support the bill. While the Democrats have not come out with their own detailed proposal, they will likely want to introduce their own bill. As such, H.R. 3747 will act as a platform for Republicans to push their own job training priorities, possibly working provisions from the bill into whatever legislation the Democrats introduce.

Resources:
House Education and Labor Minority Press Release: http://republicans.edlabor.house.gov/PRArticle.aspx?NewsID=264
Author: SAS

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President Vetoes SCHIP, CMS Rule Now Faces Uncertainty

Wednesday, October 3, the President vetoed H.R. 976, a bill to reauthorize the State Children’s Health Insurance Program (SCHIP). The President pointed to the increased spending and tax hikes that Congress passed in order to pay for what he claims would lead to socialized health care. The bill expands the SCHIP program by $35 billion over five years by raising taxes on tobacco products to an even $1. The President originally proposed a $5 billion expansion, but lawmakers say that, due to inflation, such a small expansion will not even cover the same number of children that are already covered under the program.

The biggest impact the veto has on the education community concerns an amendment to the bill that addresses the Center for Medicare and Medicaid Services’ (CMS) cut in funding for reimbursements for administrative and transportation costs for students with disabilities. The amendment places a moratorium on the authority of the Secretary of Health and Human Services to take any action that would limit Medicaid payments to school districts. According to Section 616 of the conference report:

The Secretary of Health and Human Services shall not, prior to May 28, 2008, take any action […] to restrict coverage or payment under title XIX of the Social Security Act for rehabilitation services, or school-based administration, transportation, or medical services if such restrictions are more restrictive in any aspect than those applied to such coverage or payment as of July 1, 2007.

While the moratorium would only extend until May 28, 2008, it would represent a considerable victory for school districts and states that are resisting the recent regulatory actions by the Center for Medicare and Medicaid Services (CMS) to cut Medicaid funding by reducing school-based and rehabilitative services for children with disabilities. The threatened veto, however, places that victory in jeopardy. There is little likelihood that the Democratic majority can secure enough votes in the House and Senate at this point.

The Senate has the 67 votes necessary to override the veto, but the House has to act first, and presently it is shy of the 250 votes needed. House Majority Leader Steny Hoyer (D-MD) scheduled the override vote for October 18, giving Democrats two weeks to try and sway more Republicans to vote their way. Meanwhile, Republican leaders claim they will still sustain the veto and that Congress should move on to trying to pass a new SCHIP bill that the President will sign. In the meantime, assuming the override fails, the CMS amendment will need to find a new vehicle for passage.

Resources:
Stephen Langel, “Republicans Confident Bush Veto of SCHIP Will Be Upheld,” Congress Now, October 3, 2007.
Author: SAS

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Senate Appropriators Ask For Help From Advocates

The Senate Labor-HHS-Education Appropriations Subcommittee staff held a “stakeholder’s meeting” on Wednesday, October 3 to discuss the subcommittee’s fiscal year 2008 appropriations bill’s immediate future with health, labor, and education advocates. Throughout the meeting, staffers for Subcommittee Chairman Tom Harkin (D-IA) and Ranking Member Arlen Specter (R-PA) pleaded with advocates to contact members of Congress and the White House, lobbying for final passage of the bill as it currently stands. The bill is tentatively scheduled to come to the Senate floor the week of October 15, when the Senate returns from its week-long Columbus Day recess.

The Senate Labor-HHS-Education appropriations bill provides about $11 billion more than the President requested, making it a prime target for a Presidential veto. Chairman Harkin asked that advocates focus their immediate efforts on helping to ensure that the bill passes through the Senate quickly. There is little doubt that Democrats have the votes necessary to pass the bill, but there is concern over how long it takes to bring the bill to a final vote. Harkin and committee staffers are afraid that an overabundance of amendments will bog down progress on the bill.

Senate leaders are hopeful that they can move the bill through a floor vote in a week, and appropriators expect a quick conference with the House. Sen. Harkin wants to be able to send the bill to the President for the veto showdown by November 1. Unless Congress decides to move the Defense spending bill forward, the Labor-HHS-Education bill should be the first to reach the President’s desk.

If the President follows through on his veto threats, the bill will likely be added to an omnibus bill, which lumps various spending bills together. Harkin and his staff have all but conceded that an omnibus bill, or multiple omnibus bills, are likely unavoidable at this point. However, before then, Democrats will probably try to hold an override vote, more for show than anything else. After the Democrats make their political statement about priorities, Harkin says that Congress will probably have to pass an additional continuing resolution, carrying through into December, to give appropriators enough time to finish work on the omnibus package(s).

Author: SAS

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