steven spillan, esq. sspillan@bruman.com brustein & manasevit, pllc fall forum 2014

Steven Spillan, Esq.sspillan@bruman.comBrustein & Manasevit, PLLCFall Forum 2014

AgendaCurrent RulesOmni-Circular RulesPossible Pushback by Agencies

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OMB A-87: Attachment B, Section 27, 42, and 43OMB A-21: Attachment A, Section J, Items 32, 51, and 53

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Current Law: A-87 / A-21Costs of meals and travel are

allowable if primary purpose of meeting / conference is dissemination of technical information

The cost of training provided for employee development is allowable

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Training and Education (200.472)The cost of training and education provided

for employee development is allowable

Expanded definition to include “education.”OIG concerned the category is too “open

ended”

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Conferences (200.432)Conference defined as:

A meeting, retreat, seminar, symposium, workshop or event

Whose primary purposes is the dissemination of technical information beyond the non-federal entity and

Is necessary and reasonable for successful performance under the Federal award

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Conferences (cont.)Allowable conference costs may include:

Rental of facilitiesSpeakers’ feesCosts of meals and refreshments*Local transportationOther items incidental to such conferences

unless restricted by terms of federal award

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Conferences – Dependent CareCosts of identifying, but not providing, locally

available dependent-care resources are allowable.

Part of OMB’s new “family-friendly” policiesMeant to better enable employees of non-

federal entities with dependent care responsibilities to progress in their careers

Essential for advancing the careers of women in STEM fields

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Conferences (cont.)Conference hosts/sponsors must exercise

discretion and judgment in ensuring that conference costs are appropriate, necessary and managed in a manner that minimizes costs to the federal award.

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Travel Costs (200.474)Defined: Expenses for transportation,

lodging, subsistence, and related items incurred by employees who are on travel for official business.

May be charged:On a per diem or mileage basis;Actual Costs; or,A combination of the two—provided the method

used is applied to an entire trip and not to selected days of the trip.

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Travel (cont.)To charge to Federal award, must show:

Participation of the individual is necessary to the federal award; AND

The costs are reasonable and consistent with the entity’s written travel policy (new requirement).

In the absence of established policy, the rates established under 5 U.S.C. 5701-11, by GSA, or by the President must apply to travel under Federal awards

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Travel (cont.)May only pay for the “basic least expensive

unrestricted accommodations class offered by commercial airlines”, UNLESS:Requires circuitous routing;Requires travel during unreasonable hours;Excessively prolongs travel;Results in additional costs that would offset the

transportation savings; or,Not reasonably adequate for traveler’s medical

needs.Must justify and document these conditions on

a case-by-case basis in order for the use of first-class or business-class airfare to be allowable.

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Travel – Family FriendlyDependent care costs above and beyond

regular dependent care that directly result from travel to conferences are allowable provided the costs are:Direct result of the individual’s travel for the Federal award;Consistent with entity’s documented travel policy;Temporary during the travel period.

Travel costs for dependents are unallowable, except for travel of duration of six months or more with prior approval.

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OIG Concerns – Summer 2014OIGs have found conferences held

by recipients where per-person cost of daily catering was between 189% and 400% of applicable location’s federal per diem for meals and incidental expenses

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OIG Concerns (cont.)OMB should limit meal costs to

federal per diem rates and document a cost comparison of at least three sites to determine most cost-advantageous location

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ESEA Title II, Part A FAQ ‘Guidance’Issued May 2013 via e-mailAvailable on-line:

http://www2.ed.gov/policy/fund/guid/gposbul/faqs-grantee-conferences-may-2013.doc

ED Effort to take “greater care in enforcing and monitoring” these costs

Title II, Part A office is responsible for the largest amount of grant funds related to professional development

Very high burden of proof to show that paying for food is necessary

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Title II, Part A ‘Guidance’ (cont.)Q&A #3: Consider whether hosting a

meeting or conference is the most effective or efficient way to achieve the desired result.

Q&A #6: When hosting a meeting, structure the agenda

so there is time for participants to purchase their own food, beverages, or snacks.

Consider a location in which participants have easy access to food and beverages.

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Title II, Part A ‘Guidance’ (cont.)Q&A #7: In virtually all cases, using grant funds

to pay for food and beverages for receptions and “networking” sessions is not justified

Q&As #8, 9: Beware of ‘free’ food and beverages embedded in a contract for meeting space; ask hotel to ‘back out’ such costs.

Q&A #13: May offer meeting participants the option of paying for food and beverages and arrange for items to be available at the meeting.

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Weight of this Guidance?Does not meet standard of “Good Guidance”

(OMB Bulletin No. 07-02)SASA Deputy Director clarified applicability

of this guidance in June 2013:This new guidance is generally intended to apply to

professional meetings, including those that you may have with LEA staff, and not to school-based events such as a Title I parent meeting. As a result, as long as there is a connection to a programmatic purpose and the cost is reasonable, an LEA may continue to provide food at Title I parent meetings.

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ED Office of General CounselNational Association of State Title I

Directors, February 2014Very high burden of proof to show that

paying for food and beverages with federal funds is necessary to meet the goals and objectives of a federal grant.Structure agenda to allow participants time to

purchase their own foodConsider a location with easy access to food

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ED OGC (cont.)“Working Lunch” may be allowable. Factors

to consider:1. Is a working lunch necessary?2. Is the portion of the agenda to be carried out

during lunch substantive and integral to the overall purpose of the meeting?

3. Is there a genuine time constraint that requires the working lunch?

4. If a working lunch is necessary, is the cost of the working lunch reasonable?

5. Has the SEA or LEA carefully documented that a working lunch is both reasonable and necessary?

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DISCLAIMERThis 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.

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