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Federal Legislative Report 114-9

Delivered via email: May 13, 2016


The Negotiated Rulemaking Committee concluded its work on April 19. The committee’s task was to review rules proposed by the U.S. Department of Education (USDOE) on assessments and supplement/not supplant. Committee members reached final consensus on all of the identified issues included in the proposed assessment regulations. The committee was unable to achieve consensus on the supplement/not supplant regulations.

What’s next? The USDOE is bound to the agreement on the assessment regulations and will promulgate formal regulations based on the committee’s negotiations. They will also proceed in issuing supplement/not supplant regulations, but since the committee could not reach consensus they are not bound by the negotiations. The failure to reach consensus triggers a specific congressional oversight provision in ESSA, which allows Congress to weigh-in on whatever supplement/not supplant language the USDOE submits as proposed rules. All of the regulations and transcripts of the negotiated rulemaking meetings will be posted on the USDOE website.


As mentioned in the last Federal Legislative Report (114-08), the latest iteration of the Child Nutrition Act (CNR), the Healthy, Hunger-Free Kids Act, expired on Sept. 30, 2015, however the program and its regulations continue as long as Congress continues to appropriate money for it.

Bills to reauthorize the CNR have been introduced in both the House and Senate. The House bill, the Improving Child Nutrition and Education Act (H.R. 5003), was introduced in April and is not bipartisan.   The Senate bill, the Improving Child Nutrition Integrity and Access Act (which has no bill number assigned at this time), is bipartisan and was approved by the Senate Agriculture Committee in January, see Federal Legislative Report (114-08). Both bills take steps to: 1) increase flexibility for school districts, 2) meaningfully increase stakeholder engagement (including school boards), and 3) enhance program integrity provisions.

Both bills also contain provisions with similar, but not identical, language that are controversial, most notably changes to verification requirements and community eligibility. Verification, considered a “program integrity requirement,” has bipartisan support in Congress and is supported by President Obama. The language increases the percentage of applications that school food authorities would verify for eligibility, from the current three percent to as much as 10 percent based on school performance and other factors. Additionally, both bills include a number of options to minimize the increase in verifications (called “drop downs”) to reduce the burden on schools and families. School districts may therefore be required to verify the same or potentially fewer applications than they do currently.

The Community Eligibility Provision (CEP) allows districts with high poverty rates (40 percent or more) to provide free breakfast and lunch to all students. CEP eliminates collecting household applications to determine eligibility for school meals, relying instead on information from other means-tested programs such as the Supplemental Nutrition Assistance Program (SNAP) and Temporary Assistance for Needy Families (TANF). A provision in the House bill (H.R. 5003) that has generated questions would increase the poverty threshold for CEP from 40 percent to 60 percent. There are mitigating factors for the change, including a two-year transition period for schools and districts that do not meet the 60 percent threshold.  In addition, H.R. 5003 would direct savings from the CEP change to a much-needed reimbursement increase for the School Breakfast program.


As mentioned in the last Federal Legislative Report (114-08), the USDOL proposed several months ago to increase the salary threshold for overtime pay requirements. Teachers are exempt from the proposal, but the changes would affect every other staff member. The activation of the rule is imminent, however, a coalition of business and public employer groups have been pushing for a delay or phase-in of the proposal. Congress has also responded in several ways to the proposed rule including conducting oversight hearings and considering legislation to delay or nullify the final rule.


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