Within the Scope

Blogging on Administrative Law and the Public Sector

Thursday, March 26, 2009

Mankato Diary, Our Federal Bargain and Some Heretical Ideas

I have had the good fortune to spend the last two days with some of the state’s brightest and most dedicated professionals. Yesterday and today, the Minnesota State University at Mankato has hosted the Third Annual Midwest Regional Special Education Law Conference.

The raison d’être of the Annual Conference is to provide learning and best-practice sharing opportunities for those who are administering our state's special education programs. The conference follows from the premise that understanding the interlocking mechanisms of the Individuals with Disabilities Education Act (known as "IDEA"), and the Act’s accompanying regulations, is an enormous task.

Under current U.S. Supreme Court case law, IDEA is regarded as a “contract” between the federal government and the enrolling states – under which a set of “federally imposed conditions” are accepted “voluntarily and knowingly” by the state recipients of federal special education funds.

Noting also that the federal sovereign is only now covering 20 percent of the costs associated with Minnesota’s delivery of special education services under the Act, the government manager in me wondered: When it comes to delivering special education services, how much is the “complexity premium”?

Would we, for example, actually deliver more resources to disabled students in Minnesota if we: (a) refused federal IDEA funds; (b) made the same state appropriations that we are making today in favor of special education services; and (c) operated under a much simpler set of state rules? Do the costs associated with implementing, training on, reporting under and litigating provisions of the federal statute and regulations exceed the amounts that Minnesota school districts receive from the federal sovereign for the overall costs of special education programs?

Another side benefit “opting out” of the special education “contract, in favor of a set of simpler state special education rules, presumably would be that local school districts would be closer to the source of regulatory guidance. I would wager that the Minnesota Department of Education has a better record of responding to inquiries from local school districts on the meaning of applicable regulations, than, say, the Office of Special Education Programs in Washington, D.C.

Thus, it would be interesting to know: Could Minnesota deliver more and better special education services, with the same money, by going it alone? (Even raising such a question suggests some of the Byzantine complexities that are associated with the federal requirements.)

My very informal survey of state regulators at the Conference cast doubt on such a heretical idea; but raised a still more interesting question. While it was agreed that there is a “complexity premium” associated with the Act, the costs of this federal complexity are guessed to be smaller than the 20 percent of the state’s special education costs now underwritten by the federal government. Thus, it is calculated that refusing federal funds would actually do more harm than good to local special education programs.

Accordingly, it is likewise predicted that the current system will remain in place, even after next year’s reauthorization of the Act, so long as the federal government transmits more money than is expended by the states to administer the federal Act -- the federal government has never covered Minnesota’s costs of complying with the Act. And in this way, stave off such heretical ideas....

Sunday, March 22, 2009

Thanks for Being Patient

I am scheduled to make a presentation at the American Bar Association's 4th Annual State and Local Procurement Symposium in May, and, as noted immediately below, suspended my blogging for a few weeks so that I could complete the article requested by the symposium organizers.

What I addressed in the article is a set of recent upgrades to federal procurement rules that oblige mid-size and large federal contractors to have robust ethics compliance systems. In the monograph, I describe: (1) how the federal government is using the new ethics rules to manage growing portfolios of contract risk; (2) how applying the new ethics regimens to state and local contractors will likely be the next frontier for government regulators; and (3) how contractors of all sizes can begin to think through some of the difficult issues prompted by these new rules.

While the article is fairly lengthy (certainly by blog post standards), I would be grateful for any feedback that the readers of these pages had for me on this piece; which is accessible here.

And thanks for sticking with me….