The DATA Act, FERPA, and Other Data Requirements Steven Spillan, Esq. sspillan@bruman.com WWW.BRUMAN.COM Brustein & Manasevit, PLLC © 2018. All rights reserved.

Agenda DATA Act President’s Management Agenda FERPA Other Data Concerns Brustein & Manasevit, PLLC © 2018. All rights reserved.

What is it and what does it mean for my federal programs? DATA Act What is it and what does it mean for my federal programs? Brustein & Manasevit, PLLC © 2018. All rights reserved.

DATA Act Digital Accountability and Transparency Act Passed in 2014 Passed unanimously by both the House and the Senate Statute lays out clear timeline… Changes are coming…. Brustein & Manasevit, PLLC © 2018. All rights reserved.

DATA Act: Purpose Establishes government-wide financial data standards and increases the availability, accuracy, and usefulness of Federal spending information ‌ Goals include: Establishing Government-wide data standards Simplifying reporting Improving the quality of data Brustein & Manasevit, PLLC © 2018. All rights reserved.

DATA Act: What Happened May 2015 – Initial DATA Act pilot announced Open for public comment Ongoing for two years May 2016 DATA Act Information Model Schema (DAIMS) finalized OMB publishes memo on DATA Act guidance Brustein & Manasevit, PLLC © 2018. All rights reserved.

DATA Act: What Happened (cont.) April 2017 – Federal agencies submitted data to Treasury using DAIMS v.1 May 2017 – Treasury revised www.USAspending.gov August 2017 – OMB report to Congress on pilot September 2018 – OMB Memo on DATA Act https://www.whitehouse.gov/wp-content/uploads/2018/09/M-18-24.pdf October 2018 – OMB Memo on Federal Data Strategy https://www.whitehouse.gov/wp-content/uploads/2018/10/M-19-01.pdf Brustein & Manasevit, PLLC © 2018. All rights reserved.

DATA Act: Pilot To develop recommendations for: standardized reporting elements across the Federal Government; the elimination of unnecessary duplication in financial reporting; and the reduction of compliance costs for recipients of Federal awards Brustein & Manasevit, PLLC © 2018. All rights reserved.

DATA Act: September 2018 memo Lessons learned from DATA Act pilot Also references President’s Management Agenda https://www.performance.gov/CAP/CAP_goal_8.html Lays out specific requirements for the federal awarding agencies Brustein & Manasevit, PLLC © 2018. All rights reserved.

September 2018 OMB memo Federal agencies must: Review data standards Align all agency grant-related reform initiatives with PMA and CAP 8 Use government-wide data standards to modify/design new systems Work with other agencies Assess existing policies and processes to identify further opportunities to reduce reporting burden Brustein & Manasevit, PLLC © 2018. All rights reserved.

OMB Guidance Government-wide core grants management data standards are expected to be finalized by the Grants Management Federal Integrated Business Framework (FIBF) by September 30, 2018. Still not completed: https://www.ussm.gov/fibf- gm/#business_use_cases By April 30, 2019, each agency must submit a plan to OMB that describes its strategy for integrating the new data standards into current and/or future grant systems, to include plans to migrate to shared services. Plans must also reflect the agency's projected implementation timelines. Brustein & Manasevit, PLLC © 2018. All rights reserved.

President’s Management Agenda “[L]ays the foundation needed to address the critical challenges where government as a whole still operates in the past.” Brustein & Manasevit, PLLC © 2018. All rights reserved.

3 Sections Modern information technology (IT) will function as the backbone of how Government serves the public in ways that meet their expectations and keep sensitive data and systems secure. Data, accountability, and transparency will provide the tools to deliver visibly better results to the public and hold agencies accountable to taxpayers. A modern workforce that builds on the Administration’s proposed civil service reforms to empower senior leaders and front-line managers to align staff skills with evolving mission needs. Brustein & Manasevit, PLLC © 2018. All rights reserved.

4 Data Strategies Enterprise Data Governance Access, Use, and Augmentation Decision-Making and Accountability Commercialization, Innovation, and Public Use Brustein & Manasevit, PLLC © 2018. All rights reserved.

PMA: Data Strategy 2 Access, Use, and Augmentation “Build on work like the DAIMS open data standard that powers websites like USAspending.gov and private sector sites like InsideGov.com and OpenTheBooks.com that show how the Government spends taxpayers’ money. “ Brustein & Manasevit, PLLC © 2018. All rights reserved.

PMA: Data Strategy 3 Decision-Making and Accountability Improve use of data for decision-making process, including: Providing high quality and timely info to inform evidence-based decisions Facilitating external research on program effectiveness Foster public accountability through accurate and timely spending info, performance metrics, and other data Brustein & Manasevit, PLLC © 2018. All rights reserved.

PMA: CAP Goal 8 Result-Oriented Accountability for Grants Rebalance compliance efforts with focus on results Standardize grant reporting data and improve collection Measure progress and share lessons/best practices https://grantsfeedback.cfo.gov/data-elements.html Brustein & Manasevit, PLLC © 2018. All rights reserved.

Protecting data is not just an issue for Facebook FERPA Protecting data is not just an issue for Facebook Brustein & Manasevit, PLLC © 2018. All rights reserved.

Family Education Rights & Privacy Act Regulations: 34 CFR Part 99 Protecting personal identifiable information in student records Annual notifications: Consent to disclosures of PII contained in the student's education records, except to the extent that the Act and §99.31 authorize disclosure without consent Data studies and third parties Brustein & Manasevit, PLLC © 2018. All rights reserved.

3rd Party Disclosures Prior consent not required when disclosure is to organizations conducting studies for, or on behalf of, educational agencies or institutions to: Develop, validate, or administer predictive tests; Administer student aid programs; or Improve instruction. The study must be conducted in a manner that does not permit PII of parents and students to individuals other than those with legitimate interests in the information. Info must be destroyed when no longer needed for the purposes for which the study was conducted. Brustein & Manasevit, PLLC © 2018. All rights reserved.

3rd Party disclosures (cont.) Written agreement must— Specify purpose, scope, and duration of the study and the info to be disclosed; Require the organization to use PII from education records only to meet the purpose or purposes of the study in the written agreement; Require the organization to conduct the study in a manner that does not permit PII to anyone other than representatives of the organization with legitimate interests; and Require the organization to destroy all PII when no longer needed for the purposes for which the study was conducted and specifies the time period in which the information must be destroyed. Brustein & Manasevit, PLLC © 2018. All rights reserved.

Other Data Issues Brustein & Manasevit, PLLC © 2018. All rights reserved.

GREAT Act Grant Reporting Efficiency and Agreements Transparency Act of 2018 Creates data structure covering all data elements reported by recipients of federal awards Within one year: Establish government-wide data standards for information related to federal awards reported by recipients of federal awards Within two years: Issue guidance to grantmaking agencies on how to leverage new technologies and implement the new data standards into existing reporting practices with minimum disruption Brustein & Manasevit, PLLC © 2018. All rights reserved.

GONE ACt Grants Oversight and New Efficiency (GONE) Act – passed in 2016 OMB instructs each agency to submit to Congress and HHS by December 31, 2017 a report that: Lists each federal grant award held by such agency Provides the total number of federal grant awards, including the number of grants by time period of expiration, the number with zero dollar balances, and the number with undisbursed balances Describes the challenges leading to delays in grant closeout Explains, for the 30 oldest federal grant awards, why each has not been closed out Brustein & Manasevit, PLLC © 2018. All rights reserved.

Legal Disclaimer This presentation is intended solely to provide general information and does not constitute legal advice or a legal service.  This presentation does not create a client-lawyer relationship with Brustein & Manasevit, PLLC and, therefore, carries none of the protections under the D.C. Rules of Professional Conduct.  Attendance at this presentation, a later review of any printed or electronic materials, or any follow-up questions or communications arising out of this presentation with any attorney at Brustein & Manasevit, PLLC does not create an attorney-client relationship with Brustein & Manasevit, PLLC.  You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances. Brustein & Manasevit, PLLC © 2018. All rights reserved.