Bipartisan ESEA Reauthorization Bill Passed by Senate Committee; Includes Many Improvements for Students with Disabilities

The Senate Health, Education, Labor and Pensions (HELP) Committee unanimously passed a reauthorization bill for the Elementary and Secondary Education Act (ESEA) on April 16. The bill, the Every Child Achieves Act (ECAA) of 2015, was introduced by the Committee Chairman and Ranking Members, Senators Lamar Alexander (R-TN) and Patty Murray (D-WA), to overhaul the last ESEA reauthorization (also known as No Child Left Behind).   During the markup, the Committee considered 57 amendments and approved 29 of them.

The ECAA reduces the federal role in school accountability, but allows the Department of Education to put some conditions on the states.   It would prohibit the Education Department from endorsing or prescribing curriculum, including the Common Core State Standards. The ECAA also would allow, but not require, states to use teacher evaluation systems. The Arc is pleased that the ECAA voted out of committee includes a number of provisions that will benefit students with disabilities, including:

  • Allowing only up to 1% of all students – those who have the most significant cognitive disabilities – to take an Alternate Assessment based on Alternate Achievement Standards (AA-AAS).
  • Ensuring that students in every state who take the AA-AAS are not precluded from attempting to complete the requirements for a regular diploma;
  • Maintaining annual assessments of all students in grades 3-8 and once in high school for reading and math;
  • Including all students with disabilities in state and district-level assessments;
  • Strengthening parental involvement in the decision about whether their child will take an alternate assessment;
  • Providing support to states and school districts to ensure that teachers have the skills and knowledge necessary to instruct diverse learners;
  • Including the “parent right to know” provision, requiring that parents be informed that they may request information regarding qualifications of the student’s classroom teacher; and
  • Asking school districts to describe their plans for limiting the use of restraint and seclusion.

The approved bill will now go to the Senate floor for additional debate and amendments before a vote by the full Senate.

Congress Adjusts Medicare Reimbursement

The Senate overwhelmingly approved a permanent fix to the reimbursement rates for Medicare providers, sending the measure to be signed by President Obama. If Congress had not acted, Medicare health care providers faced a 21% cut to their reimbursement. In addition to permanently fixing the reimbursement problem, the legislation extends the Children’s Health Insurance Program for two years, and extends the therapy cap exceptions process.  Senator Ben Cardin (D-MD) offered an amendment to eliminate the therapy caps. The amendment failed by two votes to reach the 60 vote threshold needed to be included in the legislation.  The bill also permanently extends the Qualified Individual (QI) program under the Medicare program, which helps low-income Medicare beneficiaries pay for premiums and permanently extends the Transitional Medical Assistance (TMA) program, which helps families on Medicaid maintain their coverage for one year as they transition from welfare to work.

Notice of Proposed Rule Making

Last week, the anticipated Notices of Proposed Rule Making (NPRM), as related to implementation of the changes to the Vocational Rehabilitation (VR) program contained in the Workforce Innovation and Opportunity Act, were posted in the Federal Register. Two different NPRMs apply to the VR program, the first related to program changes in several areas, can be accessed here. The second, related to State Supported Employment Services Program, and Limitations on the Use of Subminimum Wage can be found here. Public comments are due June 15, 2015. Comments can be submitted through the Federal eRulemaking Portal or by US Postal Service to: Janet LaBreck, U.S. Department of Education, 400 Maryland Avenue SW., Room 5086 Potomac Center Plaza (PCP), Washington, DC 20202-2800.

Department of Labor Announces Disability Employment Initiative Grants For Individuals with Disabilities Seeking Employment

Last week, the Department of Labor (DOL) announced $15 million in Disability Employment Initiative grants to assist youth and adults with disabilities seeking employment. The Disability Employment Initiative is a joint program of the Labor Department’s Employment and Training Administration and the Office of Disability Employment Policy. DOL anticipates awarding eight grants — ranging from $1.5 to $2.5 million — to be spent in a 42 month period. Funding will be provided to at least one project for each of the following three target populations: adults with disabilities (ages 18 and older); youth with disabilities (ages 14-24); and individuals with significant disabilities (ages 14 and older). Workforce agencies interested in applying for this funding should visit http://www.grants.gov. The deadline to apply is June 11, 2015.

U.S. Supreme Court Rules That Providers Cannot Sue to Enforce Payment Levels

On March 31, in Armstrong v. Exceptional Child Center, Inc., the U.S. Supreme Court decided that the Constitution’s Supremacy Clause cannot be used by private providers of Medicaid-funded community services for people with developmental disabilities to sue the state of Idaho for setting payment rates too low. The providers of habilitation services had sued Idaho for violating a provision of the Medicaid program that requires states to set rates that ensure adequate access to services.  The United States Court of Appeals for the Ninth Circuit upheld the providers’ right to sue Idaho under the Supremacy Clause.

The issue of provision of adequate rate-setting is a major one for Medicaid beneficiaries, including people with I/DD. Unfortunately, the Supreme Court decided that the Supremacy Clause does not confer a private right of action, and that Medicaid providers cannot sue to enforce the Medicaid provisions requiring states to “assure that payments are consistent with efficiency, economy, and quality of care” while “safeguard[ing] against unnecessary utilization of … care and services”. Some court observers believe that this decision could further narrow the rights of beneficiaries to use other means to protect individual rights. It remains to be seen how this decision will be interpreted in the lower courts and in future Supreme Court decisions.

Updated Report Released on Restraint and Seclusion Laws

An updated report on state laws and regulations related to the prevention of restraints and seclusion in schools has just been published. Jessica Butler, who coordinates Congressional affairs for the Autism National Committee, has been tracking the issue since 2009.   The report includes a highlighted map showing states that have meaningful protections for children. As of this report, only 22 states have such protections for all students, and only 34 provide such protections for students with disabilities.   In February, Representative Don Beyer (D-VA) introduced the Keeping All Students Safe Act (HR 927) to provide minimum federal standards on restraint, seclusion, and aversive interventions.  Get involved in the campaign to prevent restraint and seclusion at http://stophurtingkids.com/.

Workforce Innovation and Opportunity Act (WIOA) notices of proposed rulemaking available for review

Last week, five notices of proposed rulemaking (NPRMs) related to the Workforce Innovation and Opportunity Act (WIOA) were made available for public inspection at https://www.federalregister.gov/public-inspection.

The five NPRMs include:

  1. Joint NPRM—The U.S. Departments of Education (ED) and Labor (DOL) developed a joint NPRM to implement jointly-administered activities under Title I of WIOA regarding Unified and Combined State Plans, performance accountability, and the one-stop system. The joint NPRM applies to all core programs, including the State Vocational Rehabilitation Services and the Adult Education programs.
  1. DOL-only NPRM—This NPRM will implement changes made to the adult, dislocated worker, and youth programs authorized under title I of WIOA.
  2. Adult Education and Family Literacy Act (AEFLA)—This NPRM will implement changes to programs authorized under AEFLA, which is contained in title II of WIOA.

Two NPRMs will implement changes made to the programs authorized under the Rehabilitation Act, which is contained in Title IV of WIOA, as well as new provisions added:

  1. State Vocational Rehabilitation Services program and the State Supported Employment Services program, as well as new provisions in Section 511(Limitations on the Use of Subminimum Wages); and
  2. All other Rehabilitation Act programs administered by ED—Client Assistance, American Indian Vocational Rehabilitation Services, Protection and Advocacy of Individual Rights, Independent Living Services for Older Individuals Who Are Blind programs, and the discretionary grant programs authorized under Title III of the Rehabilitation Act.

The official 60-day comment period will begin once the NPRMs are published in the Federal Register. Once the 60-day public comment period begins, written comments can be submitted through Regulations.gov at: www.regulations.gov. The Arc will be actively engaged in this review and comment process.

Celebrate Fair Housing Month in April!

April is Fair Housing Month, a time to celebrate the Fair Housing Act and raise awareness about this important civil rights law. The Fair Housing Act makes it illegal to discriminate in the sale or rental of housing based on race, color, sex, religion, national origin, familial status or disability. The Department of Housing and Urban Development (HUD) has kicked off Fair Housing Month with the launch of a new national media campaign. This year’s campaign, implemented by HUD in partnership with the National Fair Housing Alliance, highlights the release of a number of new public service announcements and uses the Twitter hashtag #FairHousingMonth. National, state, and local disability advocates are encouraged to participate in this opportunity to enhance awareness of the Fair Housing Act and its important protections for people with disabilities and other covered groups.

News from the Administration on Community Living

Last week, Aaron Bishop, Commissioner for the Administration for Intellectual and Developmental Disabilities (AIDD), published a blog post titled “Toward a More Inclusive Definition of Diversity in the Disability Community.” In it, he outlines how AIDD is actively taking steps to increase the cultural competency of leadership, staff, and decision makers across the developmental disability networks. You can hear more about AIDD’s plans at the Disability Policy Seminar (DPS). On Monday afternoon (April 13th), Commissioner Bishop will be presenting and gathering feedback on this imitative and the next steps in strengthening the self-advocacy movement.