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Megan C. Deluhery is a partner at Todd & Weld LLP. Megan concentrates her practice in employment litigation, closely held business disputes, defamation, civil rights litigation, and insurance benefits litigation. She regularly represents clients in federal and state courts and before regulatory bodies.
Megan actively engages with clients to comprehensively understand their goals, explore all available strategies and avenues, and develop a plan designed to achieve the most favorable results.
Represented 50 percent shareholders/directors in closely held business dispute involving freeze-out allegations, complex privilege matters, and years of contested litigation.
Represented majority shareholder in dispute with minority shareholder concerning interpretation of buy-out provision in shareholders' agreement.
Regularly represents majority and minority owners in closely held business disputes, including claims of freeze-out, misuse of corporate funds and mismanagement, and disputes regarding shareholder/limited liability company agreements.
Represents life insurance companies in connection with disputes with claimants and brokers.
Following six days of hearings, obtained arbitration award of substantial contractual severance payment to terminated employee when arbitrator found employee was not properly terminated for cause.
Successfully defended against former employer's effort to obtain overly broad injunction against former employee because the client's continued relationships with customers were permissible, as goodwill belonged to client-employee, not former employer.
Successfully defended against Elizabeth Grady Salon's effort to shut down competing day spa of former employee, where trial court determined non-competition clause was unenforceable to shut down fomer employee's business and it declined to issue requested preliminary injunction. Elizabeth Grady promptly voluntarily dismissed the lawsuit. See Elizabeth Grady Face First, Inc. v. Garabedian, No. 16799D, 33 Mass. L. Rptr. 324 (March 25, 2016).
Represents employers and employees in administrative and court proceedings involving discrimination, wage act, and non-competition and non-solicitation disputes.
Obtained jury verdict for defamation plaintiff against Boston Herald following three-week jury trial, resulting in payment of over $900,000 in damages and interest to client, after defeating two motions for summary judgment and obtaining names of confidential sources. Marinova v. The Boston Herald, Suffolk Superior Court, Civil Action No. 10-1316; see WL 7637805 (Mass. Super. Ct. Aug. 3, 2016) (memorandum and order denying defendant's post-verdict motions); "Woman awarded $563,092 in Herald defamation suit," The Boston Globe, March 20, 2014.
Represented Bill Cosby accuser, Kristina Ruehli, in defamation suit filed in U.S. District Court for the District of Massachusetts. Successfully defeated motion to dismiss and obtained evidence from third-party witness to substantiate Ms. Ruehli's contemporaneous account of the attempted sexual assault by Mr. Cosby.
Obtained federal jury verdict in favor of a male student and his family for breach of contract, judicial order for temporary reinstatement and consent order for permanent reinstatement against a private preparatory school based on its mishandling of a disciplinary matter involving alleged sexual assault. The jury verdict came three months after the expulsion of the student. The case is the first known jury verdict in favor of an improperly expelled male student in the country since the 2011 guidance from the Department of Education.
Defeated a request by Amherst College to dismiss the case of an expelled male student who asserts claims for breach of the student handbook and violations of Title IX based on the school's biased and flawed disciplinary process related to a female student's allegations against him of sexual misconduct. The case involves allegations that the school’s disciplinary process failed to uncover evidence favorable to the male student, and that the male student was incapacitated at the time of the sexual interaction such that he was incapable of committing the offense for which he was expelled.
Represents students expelled from colleges/universities and private secondary schools for alleged violations of sexual assault/harassment policies and/or Title IX.
Obtained favorable summary judgment ruling on behalf of anti-poverty organization asserting civil rights and defamation claims against municipality and town officials. See SMOC v. Framingham, 752 F. Supp. 2d 85 (D. Mass. 2010).
Represented Islamic Society of Boston in case against Boston Herald and related parties asserting defamation and civil rights claims in defense of ISB's efforts to build new mosque in Roxbury neighborhood of Boston.
Obtained preliminary injunction on behalf of regional bank that alleged a large national bank's proposed new trademark infringed on the regional bank's mark, resulting in successful resolution of case for client. See Commerce Bank & Trust Co. v. TD Banknorth, Inc., 554 F. Supp. 2d 77 (D. Mass. 2008).
Persuaded the Massachusetts Supreme Judicial Court to reverse summary judgment on a multi-million dollar quantum meruit claim of her client related to a construction project. The court established new law by ruling that intentional breach of a construction contract does not prohibit pursuit of a quantum meruit claim. (G4S Technology LLC v. Massachusetts Technology Park Corp., --- Mass. --- (2018)).
Persuaded the Massachusetts Supreme Judicial Court to overturn summary judgment for a law firm and grant summary judgment to her client which had sued for legal malpractice. In so doing, the SJC for the first time ruled that a judicial error of law does not bar recovery in a legal malpractice case where the defendant law firm was negligent in failing to prevent or mitigate the legal error. (Kiribati Seafood Co., LLC v. Dechert LLP, 478 Mass. 111 (2017).
Obtained landmark ruling concerning discoverability of attorney-client communications by members of the board of directors of closely-held company. See Chambers v. Gold Medal Bakery, Inc., 464 Mass. 383 (2013).
Acted as appellate counsel in cases where the firm was not trial counsel, including matters involving complex commercial litigation and novel issues of law.
Successfully defended national law firm against allegations that firm attorneys had obtained confirmation of a knowingly defective Chapter 11 bankruptcy plan. See In re High Voltage Eng'g Corp., 360 B.R. 369 (D. Mass (Bank.) 2007).
Megan serves on the Board of Directors for the Transformative Culture Project, a non-profit organization empowering youth in Boston and across the Commonwealth of Massachusetts through education, employment, and opportunities for creative expression.
During law school, Megan worked in the Mandel Legal Aid Clinic's juvenile justice program, where her team submitted a well-received amicus brief to the Illinois Supreme Court arguing a mandatory life sentence for a 15-year-old accessory to a gang-related double homicide was unconstitutional. See Illinois v. Miller, 781 N.E.2d 300 (Ill. 2002).
"Plaintiff's status is germane to any defamation case," Massachusetts Lawyers Weekly, July 17, 2014.

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Published in Business Law News, Issue 1, 2007. Copyright © 2007 by The State Bar of California. Reprinted with permission.
Arbitration clauses are everywhere and profoundly alter the rights of parties to agreements containing them. Often, however, it is not until an actual dispute arises that parties and their counsel first become aware of just how profound an effect these clauses can have.
In the momentum of a deal or settlement closing, the parties often fail to focus on the language of the arbitration clause. And, although the parties may agree to use a specific arbitration provider, little attention generally is given to the rules which will govern an arbitration. Unfortunately, the clauses "recommended" by arbitration providers, and included in many contracts, are extremely broad and often have unexpected, and undesired, consequences. One of the most significant and least anticipated of these consequences is to vest the arbitrator with the power to decide "arbitrability" - whether a claim is subject to arbitration - although this is one of the few issues still traditionally relegated to the courts' jurisdiction.
The impact of these unanticipated consequences is magnified by the strong presumption favoring arbitration. The United States Supreme Court in Buckeye Check Cashing, Inc. v. Cardegna recently explained that even where an agreement containing an arbitration clause is alleged to be illegal as a whole and therefore void ab initio, the arbitration clause is severable and an arbitrator, not a court, decides whether the agreement is in fact illegal. The only exceptions the Supreme Court allowed to this rule are where the arbitration clause itself is challenged, or where the formation of the contract is contested such that no contract exists (e.g. for fraud in the execution of the agreement). Otherwise, arbitration it is.
The Supreme Court's willingness to require arbitration even where an agreement is illegal illustrates the importance of clearly stating in each agreement what the parties are agreeing to arbitrate and who will decide what. Because arbitration clauses take a wide variety of forms, parties' rights can be affected either expressly or implicitly by the language chosen for the clause. The informed and careful selection of an arbitration clause and arbitration provider eliminates unintended and often unwelcome consequences.
The Effect of The Presumption Favoring Arbitration.
To help fulfill parties' intentions and overcome the judicial aversion to arbitration, the Federal Arbitration Act ("FAA" or "the Act") was enacted. Every arbitration agreement affecting interstate commerce is subject to the FAA. Therefore, only if a contract exclusively affects intrastate commerce will California's Arbitration Act apply.
Once a court determines that the making (formation) of an arbitration agreement is not in issue, it will direct the parties to proceed to arbitration in accordance with the terms of the agreement. The role of the courts in reviewing matters subject to arbitration, therefore, is usually limited to determining two issues: 1) whether a valid agreement or obligation to arbitrate exists; and 2) whether one party to the agreement has neglected or refused to arbitrate.
In construing an arbitration agreement, as with any other contract, the parties' intentions control, but those intentions are "generously construed as to issues of arbitrability." Any doubts concerning the scope of arbitrable issues generally should be resolved in favor of arbitration. As a general rule, questions of arbitrability must be addressed with "a healthy regard for the federal policy favoring arbitration." In fact, when contracts contain an arbitration provision, "a presumption of arbitrability" arises, such that any doubt about the "scope of arbitrable issues" is to be resolved in favor of arbitration.
When deciding whether the parties agreed to arbitrate a certain matter (including arbitrability), courts generally should apply the same ordinary state law principles that govern the formation of contracts. However, the FAA created a body of federal substantive law of arbitrability, which is applicable to any arbitration agreement within the coverage of the Act. And, because courts commonly decide issues of arbitrability, a substantial body of law has developed interpreting broad arbitration clauses. Even when applying general state-law principles of contract interpretation to the interpretation of an agreement within the scope of the FAA, courts give due regard to the federal policy favoring arbitration, and, typically, any ambiguities as to the scope of the arbitration clause itself are resolved in favor of arbitration.
Who Decides The "Gateway" Issue of Arbitrability?
Just as the arbitrability of the merits of a dispute depends upon whether the parties agreed to arbitrate that dispute, so the question "who has the primary power to decide arbitrability" turns upon what the parties agreed about that matter. Did the parties agree to submit the arbitrability question itself to arbitration?
Parties are free to assign to an arbitrator the question of whether a claim is arbitrable. But, "unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator."
Unfortunately, this critical presumption favoring the court's authority to decide issues of arbitrability is often unintentionally extinguished: (1) by adopting a standard, broad arbitration clause "recommended" by an arbitration provider; and/or (2) by failing to carefully consider which arbitration provider is selected. Either way, a client may subsequently come to believe that he or she did not get what was bargained for, which is why careful attention should be paid to arbitration clauses.
Arbitration Clauses Commonly Eliminate the Presumption That Courts Will Decide Issues of Arbitrability.
Any dispute arising out of or relating to this contract, including the breach, termination or validity thereof, shall be finally resolved by arbitration in accordance with the International Institute for Conflict Prevention and Resolution Rules . . . .
All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce. . .
In construing arbitration clauses, courts have at times distinguished between ‘broad' clauses that purport to refer all disputes out of a contract to arbitration and ‘narrow' clauses that limit arbitration to specific types of disputes. If a court concludes that a clause is a broad one, then it will order arbitration and any subsequent construction of the contract and of the parties' rights and obligations under it are within the jurisdiction of the arbitrator.
Courts have explained that an objective reading of an arbitration clause that refers "[a]ny and all controversies" to arbitration leads to the conclusion that the parties intended to arbitrate issues of arbitrability. In other words, the referral to arbitration of "all disputes ... concerning or arising out of" an agreement evinces a "clear and unmistakable intent to submit questions of arbitrability to arbitration." This view is bolstered by the policy against dividing disputes into substantive and procedural aspects to be determined partly by arbitrators and partly by the courts. Some courts have held that such language does not clearly and unmistakably demonstrate the requisite intention of the parties to arbitrate arbitrability. However, the general trend appears to be to interpret broad arbitration clauses consistent with the general policy favoring arbitration and to relegate to the arbitrator all questions of arbitrability.
Therefore, by adopting commonly used or recommended language in an arbitration clause, clients may have unknowingly agreed to give up their right to have the courts decide the scope of their arbitration agreement and the extent of the arbitrator's jurisdiction. Doing so can significantly impact a client's rights because arbitrators' decisions are well insulated from review, and the courts have no ability to rectify any subsequent errors in law or contract interpretation. Making informed decisions about the language of an arbitration clause and carefully considering the rules of the selected arbitration provider can help clients avoid unwelcome surprises should future disputes ever develop.
Arbitration clauses commonly state that the parties agree to be bound by the rules of the arbitration provider they select. Often, the parties specifically incorporate the rules of a particular arbitration provider into their agreement. Even if the agreement does not expressly incorporate the provider's rules, the rules themselves often state that merely by agreeing to arbitrate with the specified provider, the arbitration rules are deemed to be incorporated into the parties' agreement.
These simple acts can have unintended consequences. Unless care is taken to understand the effect of the referenced rules, and their potential effect in the future, the clients' legal rights can be altered. By routinely incorporating a certain provider's rules into an agreement, the parties may unknowingly agree to have the arbitrator determine the scope of his or her own authority. In fact, most arbitration rules contain specific provisions divesting the courts of jurisdiction to decide gateway issues of arbitrability.
The AAA's Commercial Arbitration Rules provide at R-7(a) that: "The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement." The National Arbitration Forum Rules state at Rule 20(F): "An Arbitrator shall have the power to rule on all issues, claims, responses and objections regarding the existence, scope, and validity of the arbitration agreement, including all objections relating to jurisdiction, . . .."
Likewise, the CPR Rules expressly provide that "The Tribunal shall have the power to hear and determine challenges to its jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement." The CPR states, as to Rule 8: "This should allow arbitrators to decide all issues, including arbitrability questions, without the necessity for court intervention." In its "Commentary on Individual Rules," the CPR explains that Rule 8 is meant to express principles consistent with the U.S. Supreme Court's decision in First Options of Chicago v. Kaplan, and thus, pursuant to Rule 8, it is up to the arbitrator(s) to decide whether the arbitration will proceed in the face of a jurisdictional challenge.
The courts have affirmed that language such as that quoted above eliminates the First Options presumption and vests the arbitrator with the authority to determine all challenges to his or her jurisdiction, as well as the scope of the arbitration agreement. In Lifescan, Inc. v. Premier Diabetic Services, Inc., a case arising out of a contract for the sale of medical devices and supplies, the Ninth Circuit concluded that by referring to the AAA's rules in their arbitration clause, the parties incorporated the AAA Rules into their agreement and those rules, "in turn, recognize the arbitrators' discretion to interpret the scope of their authority."
Despite the similarity of this language to AAA's rule, the two courts to address the JAMS rule have split on whether the incorporation of the JAMS Rule expresses a clear and unmistakable intent to submit the issue of arbitrability to arbitration.
The effect of incorporating an arbitration provider's rules into an agreement is not based solely on the FAA. State law contract principles also regularly apply the rule of incorporation by reference to enforce arbitration rules referred to in an arbitration clause. For instance, Delaware has a long history of enforcing parties' intentions of incorporating by reference documents referred to within an agreement.
As is clear from First Options, parties may, of course, expressly not agree to be bound by certain of the arbitration provider's rules. They also may expressly state that, notwithstanding their agreement to be bound by the provider's rules, they do not agree, nor intend, to divest the court of its jurisdiction to decide issues of arbitrability and jurisdiction and expressly do not agree to have such issues determined by the arbitrator. However, be sure to review the arbitration provider's rules to see if doing so jeopardizes the enforceability of the arbitration clause. For example, the National Arbitration Forum's Rule 48(E) provides that the Forum or the arbitrator may decline to arbitrate "where the agreement of the Parties has substantially modified a material portion of the Code."
Another option is just not to select a specific arbitration provider at the time the agreement is signed and to clearly state in the agreement: (1) the specific claims and types of disputes the parties intend to arbitrate and (2) that the parties intend the court to decide all issues of arbitrability, including the scope of the arbitrator's jurisdiction and/or the applicable statute of limitations. The parties can further agree to the method and deadline for selecting an arbitrator, thus insuring that no party's rights have been unintentionally waived or altered.
The National Arbitration Forum's "Code of Procedure", Rule 1(C) provides: "Arbitrations will be conducted in accord with the applicable Code of Procedure in effect at the time the Claim is filed, unless the law or the agreement of the Parties provides otherwise." The ICC Rules of Arbitration state: "Where the parties have agreed to submit to arbitration under the Rules, they shall be deemed to have submitted ipso facto to the Rules in effect on the date of commencement of the arbitration proceedings, unless they have agreed to submit to the Rules in effect on the date of their arbitration agreement." CPR Rule 1.1 requires: "Unless the parties otherwise agree, these Rules, and any amendment adopted by CPR shall apply in the form in effect at the time the arbitration is commenced."
Thus, by incorporating an arbitration provider's rules into an agreement, or by agreeing to be bound by the rules, the parties may be agreeing to be bound by rules the arbitration provider may modify or create in the future. As a result, the parties may be subjected to future arbitrations governed by rules very different than existed, and that the parties intended to apply, at the time they executed the agreement. For instance, even if an arbitration provider's rules do not now vest the arbitrator with the power to decide issues of arbitrability, by the time future disputes develop, new rules may have divested the court of any authority over such disputes, even if the parties did not so intend when the agreement was signed. By expressly adopting an arbitration provider's rules, and failing to make any exception to them, or by failing to specify that a specific version will govern the parties' disputes, the parties will most likely be deemed to be bound by rules they did not even know of at the time the agreement was signed.
California's Court of Appeal recently spoke to the issue with respect to JAMS' arbitration rules in Evans v. Centerstone Development Co. The parties agreed to settle disputes arising from the operation of the real estate development company by resort to JAMS "Streamlined Rules." Among these was Rule 3 of the 2000 rules which stated that "JAMS may amend these Rules without notice. The Rules in effect on the date of the commencement of an Arbitration . . . will apply . . . unless the Parties have specified that another version of the Rules will apply." The court held that the arbitrator did not exceed his authority by applying the 2002 Rules, although the parties' agreement was executed when the 2000 Rules were in effect.
There is no reason for clients to agree to be bound by future, unknown arbitration rules, some of which may profoundly affect their rights. The Rules of most arbitration providers acknowledge that the parties may want to agree that prior, or specific, versions of their rules will govern arbitrations. Why not do so? That way, clients will receive precisely what they bargained for.
A number of recent cases confirm California's similarly strong presumption favoring arbitration. However, these California courts have also abided a number of contract and statutory principles that affect the interpretation of arbitration clauses, and the breadth of the FAA.
In California Correctional Peace Officers Assn. v. State of California, the Correctional Peace Officers Association sought to compel an arbitration to determine their rights under various agreements to have supervisory employees observe rank-and-file members' negotiations with the California Department of Personnel Administration, and vice versa. The Department took the position that such observations were precluded by the Government Code, and that because the relief sought in the arbitration is illegal, arbitration should not be compelled. The trial court bought the argument, but the Court of Appeal reversed, holding that "nothing in the statutes or the case law suggests that arbitrators cannot also interpret statutes. On the contrary, the body of case law governing arbitration has recognized repeatedly that arbitrators may be presented with issues of statutory interpretation and are entitled to resolve those issues--at least in the first instance." The Court went on to explain that, "the presence of a potentially dispositive statutory issue is not recognized as a defense to arbitration under Code of Civil Procedure section 1281.2."
While this argument has a sort of "no harm, no foul" appeal, it is unreasonable to rely on an arbitration clause in a nonexistent policy to deny plaintiffs the right to a jury trial. As the drafter of the preliminary report, Chicago Title was in the best position to avoid this problem: it could have simply included an arbitration clause in the report itself.
In another twist on contract interpretation, the California Supreme Court has recognized parties' rights to opt out of the FAA in favor of the California Arbitration Act (CAA). As is explained above, the Supremacy Clause imposes the FAA on parties whose contracts affect interstate commerce. However, the Supreme Court explained in Cronus Investments, Inc. v. Concierge Services that "the language of the arbitration clause in this case, calling for the application of the FAA ‘if it would be applicable,' should not be read to preclude the application of 1281.2(c), because it does not conflict with the applicable provisions of the FAA and does not undermine or frustrate the FAA's substantive policy favoring arbitration." While clearer language could have been used to identify disputes that were (and were not) subject to the FAA and the CAA, Cronus expresses a willingness to have courts make a factual determination whether the CAA or the FAA applies as a procedural matter, to be decided by the Court and not the arbitrator.
In Ferrer v. Preston, the Court of Appeal held that parties will not be compelled to arbitrate where a statute rests exclusive jurisdiction with the Labor Commissioner to decide an issue at the heart of the claim, there, whether someone was a talent agent within the meaning of The Talent Agencies Act.
Exercise Caution in Deciding what Claims to Arbitrate, and Who Will Arbitrate Them Because of the Extremely Limited Review Available in the Courts.
Parties to a deal often believe that even if an arbitrator gets it wrong, the courts will serve as a backstop to correct errors of law. But, aside from limited statutory grounds such as demonstrable bias, arbitrators' decisions are commonly reviewed only for a manifest disregard of the law. This is because of the presumption that where the parties have authorized the arbitrator to give meaning to the language of the agreement, a court should not reject an award on the ground that the arbitrator misread the contract. The Ninth Circuit Court of Appeals recently reiterated that a court's review of an arbitration panel's decision interpreting a contract is "extremely narrow." "If, on its face, the award represents a plausible interpretation of the contract, judicial inquiry ceases and the award must be enforced."
A simple error in reasoning by the arbitrator does not provide an opportunity to review the merits of the arbitrator's conclusion. "[A]s long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision."
For one court, the mere reference to the contract as a basis for the decision was enough to reject the argument that the arbitrator manifestly disregarded the law. "A ‘misinterpretation of [a] contract[ ] will not, in itself, vitiate the award.' As long as the arbitrators did not disregard the language of the contract in their interpretation of it, their decision is not manifest disregard of the law. Here, the arbitrators explicitly stated that they reached their decision by construing the language of the contract. Therefore, the Court rules against Plaintiffs on this ground as well."
The parties in this case contracted only for a binding arbitration in which the arbitrator applied California law. This is what they received. There is no suggestion in the record that the arbitrator purported to apply any law other than that of California. It is simply claimed that he did not do so correctly. Like the Pacific Gas & Electric and Marsch courts, we cannot endorse such an end run around the clear limitations set out in Moncharsh.
Based upon this reasoning, the Blaize Court refused to review the arbitrator's award for errors of law, and affirmed the arbitration award.
This limitation was reiterated in Cable Connection, Inc. v. DirecTV where the Court of Appeal recently held that the trial court may not review an arbitration award for errors of law even where the parties' arbitration clause specified that there was to be judicial review of errors of law. The Court explained that the parties could not, by agreement, confer jurisdiction on the trial court for a type of review not specified by the California Arbitration Act.
The FAA creates a strong presumption in favor of arbitration. Arbitration providers suggest, and parties commonly adopt, arbitration clauses that confer on the arbitrators the power to decide even those issues ordinarily decided by the courts. And, judicial review of arbitration awards is so limited that even blatant errors of law cannot be remedied by the courts. As a result, parties who are dissatisfied by an arbitral award are left with few, if any, options but to comply with the award.
Therefore, parties should carefully consider the breadth of the matters they agree to arbitrate, and carefully exclude from arbitration those matters for which they want to preserve their rights to trial and appeal in the courts. Careful consideration should be given to the language of the arbitration clause and equal consideration should be given to whether to specifically select an ADR provider or not. If an ADR provider is selected, the rules of the arbitration provider should be carefully reviewed and the parties should not only agree to use a specific version of the rules, they should agree to any rule modifications which might be appropriate. Most importantly, however, when drafting an agreement which includes an arbitration clause, be sure to fully investigate and explain the nature of the arbitration provisions to clients so that they know precisely what has been agreed to and what to expect in the future. Do not leave it up to the arbitrator to decide his or her own jurisdiction - it should be the clients who make that choice.


I was contacted by a Vet seeking to readjudicate an old award pre-Bradley that entailed the same or similar circumstances. To review, Bradley was awarded TDIU for one, single disability as the predicate for the total disability rating. Nevertheless, he had additional ratings that added up to 60% (or more) which ostensibly entitled him to VA’s Special Monthly Compensation ‘S’ worth about $300+ back then. He took Kenny the Carpenter up to the Fed. Circus and finally made VA read 38 USC §1114(s) exactly as it was written-not the way Dr. Peake insisted it was intended. Jim Buie did much the same and refined it further by adding up his disabilities not in the order received, but in the amount of percentages. Once one rating was granted at totally disabling (100% schedular), he merely moved the old, less-than 100% TDIU rating over into the SMC column to attain his SMC-S. VA doesn’t cotton to you playing their 3 card Monte game as they do. They fought him long and hard but to no avail.
Importantly, though, I came across a little-known panel decision from 2006 that illuminates another old ploy of VA’s to deny us “substantially housebound” status which I am currently seeking. It, too, was repped by the Kenster. In a nutshell, VA said I was totally disabled (100%) by a secondary disease (Porphyria Cutanea Tarda) yet they low balled me at 10%. After a DRO review, they zeroed out the DC 7815 Porphyria rating and substituted DC 7704 for 40% for phlebotomies. This was clearly and unmistakably erroneous (CUE). A total disability is just that-total. What Diagnostic Code they choose to use is immaterial.
The focus of the argument is twofold. I maintained prior to this that I was “substantially housebound in fact”. I lacked the requisite additional 60% rating or ratings above and beyond the 100% schedular or, in the alternative, a TDIU rating based on one single disability. VA regularly uses an odd means test if you can call it that. Their conceptualization is that if you can make it to the CBOC (community based outpatient clinic) or VAMC without an ambulance, they you must not be very “housebound”. Hell, for all we know, the ambulance is not even a viable excuse. Your mere presence at a VA medical facility argues against the fact that you are at home- ergo you aren’t housebound. Game. Set. Match.
As I gave Rick advice on how to combat what I felt was an interesting point of law worthy of review for error, my research led me to Howell v. Nicholson. There I found the argument to defeat these idiotic straw man inventions VA used in 2009 to defeat my request for SMC-S based on a purely “substantially housebound ” reading.
SMC-HB benefits will be paid to a veteran who, “by reason of such veteran’s service-connected disability or disabilities, is permanently housebound.” 38 U.S.C. § 1114(s); see also 38 C.F.R. § 3.350(i)(2). The term “permanently housebound” is further defined as being “substantially confined to such veteran’s house . . . or immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout the veteran’s lifetime.” Id. The term “substantially confined” is not defined by statute or regulation. See id.
The Howell court decided to define what ‘substantially’ finally meant here and this was in 2006. You will find that this didn’t percolate down to the VA judicial branch at the OGC or VBA level. It may have but I doubt they take any of this seriously until called out numerous times.
Because the meaning of the term “substantially confined” is ambiguous and there is no regulatory interpretation, “the Court must determine the meaning” of the term “and the Board’s obligation” thereunder. Thompson v. Brown, 8 Vet.App. 169, 175 (1995); see also Jackson and Cropper, both supra. The Secretary submits that the clear implication of this term is that the requirement that one be “substantially confined” is met when the claimant is restricted to his house except for medical treatment purposes. The Secretary, citing to Senate Report No. 1745 (June 27, 1960), notes that in passing section 1114(s) Congress intended to provide additional compensation for veterans who were unable to overcome their particular disabilities and leave the house in order to earn an income as opposed to an inability to leave the house at all. Mr. Howell does not contest this interpretation.
Having synthesized the essence of the interpretation, the Court proceeds to apply the coup d’ grace on the Veterans Law Judge.
Accordingly, we hold that leaving one’s house for medical purposes cannot, by itself, serve as the basis for finding that one is not substantially confined for purposes of SMC-HB benefits, and the Board’s interpretation of section 1114(s) to preclude the grant of SMC benefits on the basis of Mr. Howell’s leaving his house in order to attend VA medical appointments was erroneous as a matter of law.
That, fellow Veterans, is your can opener when you get hit with something like this. I have read numerous decisions that cite to the fact that the Veteran was able to attend his/her appointments and thus was free to move about the country.
The holding is well-cited and will stand you in good stead when they try to pull the blinders over your eyes. Always remember, Veterans. VA doesn’t know the law any better than your VSO or you. They make stuff up and run with it. If you are lucky enough to catch it or have an astute rainmaker who does, you will prevail. I can’t count how many Vets have come to me over the years and try to quote law to me to show why they lost. If 67% of all VA decisions are overturned, remanded, vacated or set aside for error or incorrect reasons and bases at the CAVC, then the smart money says appeal it. What is remarkable is that only a small number of Vets do so. Go figure.
This entry was posted in SMC and tagged ASKNOD BOOK, asknod.org, asknod@wordpress.com, CAvC/COvA Decisions, Disabled Veteran, DIY vA Claims, Gulf War Claims Help, Gulf War Vets Help, Help with vA Claims, Helping Veterans, Korean War Vets Help, Service Connection, VA claims, Veterans Benefits, Veterans claims help, Vietnam Veterans Claims Help.. Bookmark the permalink.
A CUE was made on TDIU start date, going back 14 years. This took place on 2/22/18 going back to 5/26/04. SMC (s) was not inferred into the claim because the medical evidence was omitted, Veteran was being seen by two VAMC in IL & IN. When the claim was processed the medical evidence in IL was not looked at, which caused the SMC error. Had a DRO hearing yesterday and the VA has to correct the error. The Bradley vs. Peak case and knowing the law, allowed the law to be upheld in the veterans’ claim. It was an honor to be able to uphold the law for the veteran. I am not an attorney or Dr., but I am an educated woman married to the veteran that remained relentless and did my homework to get the VA to correct their error. We will see how the pertinent facts of this error corrects the following claims for A/A, SAH, Hip Replacement – Veteran had to pay for, Lower Extremities C&P Exam that didn’t follow De’luca ruling for joint and spine proper evaluation.
Because he has now announced he does not use a wheelchair at home which means he has not lost the use of his legs-one of the prime prerequisites of SMC-L. Read every sentence in a decision and also run the full docket to view his BVA decision in greater detail.
My understanding of SMC-L (and certainly I could be wrong) is that it can be awarded just because of need for A&A. If you look at the criteria, there is a disjunctive OR in the middle.
Please let me know what I’m missing.
Roger on the disjunctive “or”. I agree but I base my assessment on what the second part says-i.e.” or being permanently bedridden or so helpless as to be in need of regular aid and attendance.”. By his own admission, he has said he is ambulatory which implies he is not bedridden so there goes that part of the disjunctive. Lastly we are left with “or so helpless as to be in need of regular aid and attendance”. He hasn’t made the case for that or at least his wife is busy sandbagging that part. The perfect storm to attain A&A is to truly be helpless. Using the Schizophrenia as the predicate will almost always fail unless you are completely demented. VA is looking for physical disabilities as the rationale for A&A and always will. It’s prejudicial-yes- but what does VA do that is not prejudicial? To win these things almost always requires a trip up to 625 Wagonburner Lane NW to get the CAVC to refresh their memory. Most are not inclined to pursue it. VA law is very young in judicial time. Many facets of 38 USC have yet to be tested. The unscalable A&A cliff is finally being ascended. SMC S got an even better assessment on this double header.
Thanks for the reply. I somewhat agree about the physical aspect of A&A. I’ve dealt almost exclusively with Pension claims (literally thousands). Here is what the VA does for the older vets (WW2, Korea, Vietnam) that apply for NSCP. If they have dementia or alzheimer’s, the VA will rate them medically eligible for A&A. But unless they are paying for physical assistance with ADL’s, the VA won’t count the cost of an an assisted living facility or independent living facility. This results in excessive income and a denial.
The irony of A&A v. HB is that A&A is actually easier to get rated for (the VA basically rates no one HB in pension claims; if there is a rating it’s virtually always for A&A). And yet A&A pays more than HB. In SMC claims, I believe you only need the one disability rating for SMC-L (A&A), but at least two disability ratings for SMC-S (HB). That also some like a tougher rating to get, yet it pays less.
Sometimes just filing an appeal can get you a win even if you have no new evidence. I don’t recommend this but it works at times. The main thing is to appeal. I appealed a 0% rating for coronary artery disease and I got a 60% rating on appeal. I had some new evidence but it was not that overwhelming. The DRO granted 60% and based on that awared I got SMC “S”, so it was worth it. I used Bradley V Peake and I had to ask for it. The VA cued themselves for not granting it 2 years earlier. Now I am thinking about an EED for a decision made in 2002 that granted me 70% up from 30% that had been on appeal for 6 years. My ED was 2002 based on “new” evidence. I always thought your ED was based on the date you filed your claim, and not on the date of a C&P exam or a letter the VA got 6 years later from a doctor.
Most excellent and valuable information. For many years you have found the key that Vet’s can use to win claims and encourages them to push on and not give up. Thank You.


text:
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matches: V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V.


b. Except as otherwise provided herein, by statute, or by precedent, all appropriations to the Department of Education shall be calculated using March 31 ADM unadjusted for half-day kindergarten programs, estimated at 1,243,100.49 the first year and 1,248,935.53 1,247,836.85 the second year. March 31 ADM for half-day kindergarten shall be adjusted at 85 percent.
4.a. "Composite Index of Local Ability-to-Pay" - An index figure computed for each locality. The composite index is the sum of 2/3 of the index of wealth per pupil in unadjusted March 31 ADM reported for the first seven (7) months of the 2013-2014 school year and 1/3 of the index of wealth per capita (population estimates for 2013 as determined by the Weldon Cooper Center for Public Service of the University of Virginia) multiplied by the local nominal share of the costs of the Standards of Quality of 0.45 in each year. The indices of wealth are determined by combining the following constituent index elements with the indicated weighting: (1) true values of real estate and public service corporations as reported by the State Department of Taxation for the calendar year 2013 - 50 percent; (2) adjusted gross income for the calendar year 2013 as reported by the State Department of Taxation - 40 percent; (3) the sales for the calendar year 2013 which are subject to the state general sales and use tax, as reported by the State Department of Taxation - 10 percent. Each constituent index element for a locality is its sum per March 31 ADM, or per capita, expressed as a percentage of the state average per March 31 ADM, or per capita, for the same element. A locality whose composite index exceeds 0.8000 shall be considered as having an index of 0.8000 for purposes of distributing all payments based on the composite index of local ability-to-pay. Each constituent index element for a locality used to determine the composite index of local ability-to-pay for the current biennium shall be the latest available data for the specified official base year provided to the Department of Education by the responsible source agencies no later than November 15, 2015.
b. For any locality whose total calendar year 2013 Virginia Adjusted Gross Income is comprised of at least 3 percent or more by nonresidents of Virginia, such nonresident income shall be excluded in computing the composite index of ability-to-pay. The Department of Education shall compute the composite index for such localities by using adjusted gross income data which exclude nonresident income, but shall not adjust the composite index of any other localities. The Department of Taxation shall furnish to the Department of Education such data as are necessary to implement this provision.
d. When it is determined that a substantial error exists in a constituent index element, the Department of Education will make adjustments in funding for the current school year only in the division where the error occurred, except in the case of Roanoke County for the 2017-2018 school year. The composite index of any other locality shall not be changed as a result of the adjustment. No adjustment during the biennium will be made as a result of updating of data used in a constituent index element.
9. Entitlements under this Item that use school-level or division-level Free Lunch eligibility percentages to determine the entitlement amounts are based on the most recent data available as of the biennial rebenchmarking calculations made for the current biennium. However, October 2013 Free Lunch eligibility data is used in the case of schools that participate in the Community Eligibility Provision program.
18. To provide additional flexibility, notwithstanding the provisions of § 22.1-79.1, Code of Virginia, any school division that was granted a waiver regarding the opening date of the school year for the 2011-12 school year under the good cause requirements shall continue to be granted a waiver for the 2016-17 school year and the 2017-2018 school year.
20. Notwithstanding § 58.1-638 D., Code of Virginia, and other language in this Item, the Department of Education shall, for purposes of calculating the state and local shares of the Standards of Quality, apportion state sales and use tax dedicated to public education and those sales tax revenues transferred to the general fund from the Public Education Standards of Quality/ Local Real Estate Property Tax Relief Fund in the first year based on the July 1, 2014, estimate of school age population provided by the Weldon Cooper Center for Public Service and, in the second year, based on the July 1, 2015, estimate of school age population provided by the Weldon Cooper Center for Public Service.
Notwithstanding § 58.1-638 D., Code of Virginia, and other language in this Item, the State Comptroller shall distribute the state sales and use tax revenues dedicated to public education and those sales tax revenues transferred to the general fund from the Public Education Standards of Quality/ Local Real Estate Property Tax Relief Fund in the first year based on the July 1, 2014, estimate of school age population provided by the Weldon Cooper Center for Public Service and, in the second year, based on the July 1, 2015, estimate of school age population provided by the Weldon Cooper Center for Public Service.
22. This Item includes appropriations totaling an estimated $608,581,144 the first year and $546,495,789 $598,478,743 the second year from the revenues deposited to the Lottery Proceeds Fund. These amounts are appropriated for distribution to counties, cities, and towns to support public education programs pursuant to Article X, Section 7-A Constitution of Virginia. Any county, city, or town which accepts a distribution from this fund shall provide its portion of the cost of maintaining an educational program meeting the Standards of Quality pursuant to Section 2 of Article VIII of the Constitution without the use of distributions from the fund.
24.a. Any locality that has met its required local effort for the Standards of Quality accounts for FY 2017 and that has met its required local match for incentive or Lottery-funded programs in which the locality elected to participate in FY 2017 may carry over into FY 2018 any remaining state Direct Aid to Public Education fund balances available to help minimize any FY 2018 revenue adjustments that may occur in state funding to that locality. Localities electing to carry forward such unspent state funds must appropriate the funds to the school division for expenditure in FY 2018.
b. Any locality that has met its required local effort for the Standards of Quality accounts for FY 2018 and that has met its required local match for incentive or Lottery-funded programs in which the locality elected to participate in FY 2018 may carry over into FY 2019 any remaining state Direct Aid to Public Education fund balances available to help minimize any FY 2019 revenue adjustments that may occur in state funding to that locality. Localities electing to carry forward such unspent state funds must appropriate the funds to the school division for expenditure in FY 2019.
b. Appropriations for contributions in paragraphs 2 and 3 above include payments from funds derived from the principal of the Literary Fund in accordance with Article VIII, Section 8, of the Constitution of Virginia. The amounts set aside from the Literary Fund for these purposes shall not exceed $199,347,523 the first year and $181,349,570 the second year.
1) The appropriation in this Item includes $12,159,059 the first year and $76,599,186 $76,553,533 the second year from the general fund and $64,250,653 the first year from the Lottery Proceeds Fund as the state's share of the cost of textbooks based on a per pupil amount of $109.78 the first year and $109.78 the second year. A school division shall appropriate these funds for textbooks or any other public education instructional expenditure by the school division. The state's distributions for textbooks shall be based on adjusted March 31 ADM. These funds shall be matched by the local government, based on the composite index of local ability-to-pay.
4) Any funds provided to school divisions for textbook costs that are unexpended as of June 30, 2017, or June 30, 2018, shall be carried on the books of the locality to be appropriated to the school division the following year to be used for same purpose. School divisions are permitted to carry forward any remaining balance of textbook funds until the funds are expensed for a qualifying purpose.
h. The appropriation for the Standards of Quality for Public Education (SOQ) includes amounts estimated at $365,400,000 the first year and $374,280,780 $379,100,000 the second year from the amounts transferred to the general fund from the Public Education Standards of Quality/Local Real Estate Property Tax Relief Fund pursuant to Part 3 of this act which are derived from the 0.375 cent increase in the state sales and use tax levied pursuant to § 58.1-638, Code of Virginia. These additional funds are provided to local school divisions and local governments in order to relieve the financial pressure education programs place on local real estate taxes.
i. From the total amounts in paragraph h. above, an amount estimated at $243,600,000 the first year and $249,487,190 $252,700,000 the second year (approximately 1/4 cent of sales and use tax) is appropriated to support a portion of the cost of the state's share of the following revisions to the Standards of Quality pursuant to Chapters 939 & 955 of the Acts of Assembly of 2004: five elementary resource teachers per 1,000 students; one support and one instructional technology position per 1,000 students; a full daily planning period for teachers at the middle and high school levels in order to relieve the pressure on local real estate taxes and shall be taken into account by the governing body of the county, city, or town in setting real estate tax rates.
j. From the total amounts in paragraph h. above, an amount estimated at $121,800,000 the first year and $124,793,590 $126,400,000 the second year (approximately 1/8 cent of sales and use tax) is appropriated in this Item to distribute the remainder of the revenues collected and deposited into the Public Education Standards of Quality/Local Real Estate Property Tax Relief Fund on the basis of the latest yearly estimate of school age population provided by the Weldon Cooper Center for Public Service as specified in this Item.
b. An amount estimated at $110,555,414 the first year and $110,801,754 $110,798,639 the second year from the general fund included in Basic Aid Payments relates to vocational education programs in support of the Standards of Quality.
a. An additional payment estimated at $113,782,747 the first year and $113,821,446 $113,569,762 the second year from the general fund shall be disbursed by the Department of Education to support the Board of Education's Standards of Quality Prevention, Intervention, and Remediation program adopted in June 2003.
2) An addition to the add-on, based on the concentration of children qualifying for the federal Free Lunch Program. Based on its percentage of Free Lunch participants, each school division will receive between 1.0 and 13.0 percent in additional basic aid per Free Lunch participant. These funds shall be matched by the local government, based on the composite index of local ability-to-pay.
b) To receive these funds, each school division shall certify to the Department of Education that the state and local share of the at-risk payment will be used to support approved programs for students who are educationally at risk. These programs may include: Dropout Prevention, community and school-based truancy officer programs, Advancement Via Individual Determination (AVID), Project Discovery, Reading Recovery, programs for students who speak English as a second language, or programs related to increasing the success of disadvantaged students in completing a high school degree and providing opportunities to encourage further education and training. Further, each school division shall report to the Department, in the manner prescribed and date set by the Department, the uses of (i) increased funds in fiscal year 2017 above the levels in fiscal year 2016, as well as (ii) the uses of the base level of these funds. The Department shall compile the responses and provide them to the Chairmen of Senate Finance and House Appropriations Committees no later than the first day of the 2017 Session.
1) An additional state payment of $8,528,727 the first year and $8,639,782 the second year from the Lottery Proceeds Fund shall be disbursed for Regional Alternative Education programs. Such programs shall be for the purpose of educating certain expelled students and, as appropriate, students who have received suspensions from public schools and students returned to the community from the Department of Juvenile Justice.
1) This appropriation includes $24,687,389 the first year and $25,785,842 $23,836,129 the second year from the general fund for the state's share of Remedial Summer School Programs. These funds are available to school divisions for the operation of programs designed to remediate students who are required to attend such programs during a summer school session or during an intersession in the case of year-round schools. These funds may be used in conjunction with other sources of state funding for remediation or intervention. School divisions shall have maximum flexibility with respect to the use of these funds and the types of remediation programs offered; however, in exercising this flexibility, students attending these programs shall not be charged tuition and no high school credit may be awarded to students who participate in this program.
3) From the amounts provided for Remedial Summer School, there is hereby appropriated $300,000 the second year from the general fund to support pilot public-private partnerships between local school divisions and the Greater Richmond and Central Virginia affiliates of the Virginia Alliance of YMCAs to expand student participation opportunities in existing summer Power Scholars Academies in such partnered school divisions. The Virginia Alliance of YMCAs shall prepare and submit an evaluation report for such pilot partnerships between the school divisions and the Greater Richmond and Central Virginia YMCA affiliates to the Chairmen of House Appropriations and Senate Finance Committees no later than October 31, 2018.
a. An additional payment estimated at $123,321,155 the first year and $128,583,847 $121,269,427 the second year from the Lottery Proceeds Fund shall be disbursed by the Department of Education as an incentive for reducing class sizes in the primary grades.
b. The Department of Education shall authorize amounts estimated at $11,618,250 the first year from the Literary Fund to provide debt service payments for the education technology grant program conducted through the Virginia Public School Authority in 2012.
c. The Department of Education shall authorize amounts estimated at $12,127,750 the first year and $12,132,750 the second year from the Literary Fund to provide debt service payments for the education technology grant program conducted through the Virginia Public School Authority in 2013.
d. 1) The Department of Education shall authorize amounts estimated at $13,248,500 the first year and $13,246,250 the second year from the Literary Fund to provide debt service payments for the education technology grant program conducted through the Virginia Public School Authority in 2014.
2) It is the intent of the General Assembly to authorize sufficient Literary Fund revenues to pay debt service on the Virginia Public School Authority bonds or notes authorized for this program. In developing the proposed 2018-2020 biennial budget for public education, the Department of Education shall include a recommendation to the Governor to authorize sufficient Literary Fund revenues to make debt service payments for this program in fiscal year 2019.
e. 1) The Department of Education shall authorize amounts estimated at $13,808,000 the first year and $13,805,000 the second year from the Literary Fund to provide debt service payments for the education technology grant program conducted through the Virginia Public School Authority in 2015.
2) It is the intent of the General Assembly to authorize sufficient Literary Fund revenues to pay debt service on the Virginia Public School Authority bonds or notes authorized for this program. In developing the proposed 2018-2020 biennial budget for public education, the Department of Education shall include a recommendation to the Governor to authorize sufficient Literary Fund revenues to make debt service payments for this program in fiscal years 2019 and 2020.
f. 1) The Department of Education shall authorize amounts estimated at $13,753,517 the first year and $13,753,750 the second year from the Literary Fund to provide debt service payments for the education technology grant program conducted through the Virginia Public School Authority in 2016.
2) It is the intent of the General Assembly to authorize sufficient Literary Fund revenues to pay debt service on the Virginia Public School Authority bonds or notes authorized for this program. In developing the proposed 2018-2020 and 2020-2022 biennial budget for public education, the Department of Education shall include a recommendation to the Governor to authorize sufficient Literary Fund revenues to make debt service payments for this program in fiscal years 2019, 2020, and 2021.
g. 1) An education technology grant program shall be conducted through the Virginia Public School Authority, through the issuance of equipment notes in an amount estimated at $67,138,400 in fiscal year 2017 and $69,169,200 $58,735,300 in fiscal year 2018. Proceeds of the notes will be used to establish a computer-based instructional and testing system for the Standards of Learning (SOL) and to develop the capability for high speed Internet connectivity at high schools followed by middle schools followed by elementary schools. School divisions shall use these funds first to develop and maintain the capability to support the administration of online SOL testing for all students with the exception of students with a documented need for a paper SOL test.
2) The Department of Education shall authorize amounts estimated at $14,351,594 $13,950,086 the second year from the Literary Fund to provide debt service payments for the education technology grant program conducted through the Virginia Public School Authority in 2017.
3) It is the intent of the General Assembly to authorize sufficient Literary Fund revenues to pay debt service on the Virginia Public School Authority bonds or notes authorized for education technology grant programs in fiscal year 2017 and in fiscal year 2018. In developing the proposed 2018-2020, 2020-2022, and 2022-2024 biennial budgets for public education, the Department of Education shall include a recommendation to the Governor to authorize sufficient Literary Fund revenues to make debt service payments for these programs in fiscal years 2019, 2020, 2021, 2022, and 2023.
4) Grant funds from the issuance of $67,138,400 in fiscal year 2017 and $69,169,200 $58,735,300 in fiscal year 2018 in equipment notes are based on a grant of $26,000 per school and $50,000 per school division. For purposes of this grant program, eligible schools shall include schools that are subject to state accreditation and reporting membership in grades K through 12 as of September 30, 2016, for the fiscal year 2017 issuance, and September 30, 2017, for the fiscal year 2018 issuance, as well as regional vocational centers, special education centers, alternative education centers, regular school year Governor's Schools, and the School for the Deaf and the Blind. Schools that serve only pre-kindergarten students shall not be eligible for this grant.
5. a.) Supplemental grants shall be allocated to eligible divisions to support schools that are not fully accredited in accordance with this paragraph. Schools that include a ninth grade that administer SOL tests in Spring 2016 and that are not fully accredited for the second consecutive year, based on school accreditation ratings in effect for fiscal year 2016 and fiscal year 2017 will qualify to participate in the Virginia e-Learning Backpack Initiative in fiscal year 2017 and receive: (1) a supplemental grant of $400 per student reported in ninth grade fall membership in a qualifying school for the purchase of a laptop or tablet for that student and (2) a supplemental grant of $2,400 per qualifying school to purchase two content creation packages for teachers. Schools eligible to receive this supplemental grant in fiscal year 2017 shall continue to receive the grant for the number of subsequent years equaling the number of grades 9 through 12 in the qualifying school up to a maximum of four years. Schools that administer SOL tests in Spring 2017 and that are not fully accredited for the second consecutive year based on school accreditation ratings in effect for fiscal year 2017 and fiscal year 2018 will qualify to participate in the initiative in fiscal year 2018. Schools eligible for the supplemental grants in previous fiscal years shall continue to be eligible for the remaining years of their grant award. Schools eligible to receive this supplemental grant in fiscal year 2018 shall continue to receive the grant for the number of subsequent years equaling the number of grades 9 through 12 in the qualifying school up to a maximum of four years. Grants awarded to qualifying schools that do not have grades 10, 11, or 12 may transition with the students to the primary receiving school for all years subsequent to grade 9. Schools are eligible to receive these grants for a period of up to four years beginning in fiscal year 2014 and shall not be eligible to receive a separate award in the future once the original award period has concluded. Schools that are fully accredited or that are new schools with conditional accreditation in their first year shall not be eligible to receive this supplemental grant.
i. 1) In the event that, on any scheduled payment date of bonds or notes of the Virginia Public School Authority (VPSA) issued for the purpose described in § 22.1-166.2, Code of Virginia, and not benefiting from the provisions of either § 22.1-168 (iii), (iv) and (v), Code of Virginia, or § 22.1-168.1, Code of Virginia, the available moneys in the Literary Fund are less than the amounts authorized for debt service due on such bonds or notes of the VPSA on such date, there is hereby appropriated to the VPSA from the general fund a sum equal to such deficiency.
j. Unobligated proceeds of the notes, including investment income derived from the proceeds of the notes may be used to pay interest on, or to decrease principal of the notes or to fund a portion of such other educational technology grants as authorized by the General Assembly.
k. 1) For the purposes of § 56-232, Code of Virginia, "Contracts of Telephone Companies with State Government" and for the purposes of § 56-234 "Contracts for Service Rendered by a Telephone Company for the State Government" shall be deemed to include communications lines into public schools which are used for educational technology. The rate structure for such lines shall be negotiated by the Superintendent of Public Instruction and the Chief Information Officer of the Virginia Information Technologies Agency. Further, the Superintendent and Director are authorized to encourage the development of "by-pass" infrastructure in localities where it fails to obtain competitive prices or prices consistent with the best rates obtained in other parts of the state.
1) A security equipment grant program shall be conducted through the Virginia Public School Authority, through the issuance of equipment notes in an amount estimated at up to $6,000,000 in fiscal year 2017 and $6,000,000 in fiscal year 2018 in conjunction with the Virginia Public School Authority technology notes program authorized in C.12. of this Item. Proceeds of the notes will be used to help offset the related costs associated with the purchase of appropriate security equipment that will improve and help ensure the safety of students attending public schools in Virginia.
2) The Department of Education shall authorize amounts estimated at $4,924,392 the first year and $6,203,522 $6,163,368 the second year from the Literary Fund to provide debt service payments for the security equipment grant programs conducted through the Virginia Public School Authority in fiscal years 2013, 2014, 2015, 2016, and 2017.
3) It is the intent of the General Assembly to authorize sufficient Literary Fund revenues to pay debt service on the Virginia Public School Authority bonds or notes authorized for this program. In developing the proposed 2018-2020, and 2020-2022, and 2022-2024 biennial budgets for public education, the Department of Education shall include a recommendation to the Governor to authorize sufficient Literary Fund revenues to make debt service payments for these programs in fiscal years 2019, 2020, 2021, 2022, and 2023.
6) Grant award funds from the issuance of up to $6,000,000 in fiscal year 2017 and $6,000,000 in fiscal year 2018 in equipment notes shall be distributed to eligible school divisions. The grant awards will be based on a competitive grant basis of up to $100,000 per school division. School divisions will be permitted to apply annually for grant funding. For purposes of this program, eligible schools shall include schools that are subject to state accreditation and reporting membership in grades K through 12 as of September 30, 2016, for the fiscal year 2017 issuance, and September 30, 2017, for the fiscal year 2018 issuance, as well as regional vocational centers, special education centers, alternative education centers, regular school year Governor's Schools, and the Virginia School for the Deaf and the Blind.
a.1) It is the intent of the General Assembly that a payment estimated at $69,351,713 the first year and $70,950,500 $69,097,338 the second year from the Lottery Proceeds Fund shall be disbursed by the Department of Education to schools and community-based organizations to provide quality preschool programs for at-risk four-year-olds who are residents of Virginia and unserved by Head Start program funding. In no event shall distributions from the Lottery Proceeds Fund be made directly to community-based or private providers.
3) A local match, based on the composite index of local ability-to-pay, shall be required. For purposes of meeting the local match, localities may use local expenditures for existing qualifying programs, however, at least seventy-five percent of the local match will be cash and no more than twenty-five percent will be in-kind. In-kind contributions are defined as cash outlays that are made by the locality that benefit the program but are not directly charged to the program. The value of fixed assets cannot be considered as an in-kind contribution. Localities shall also continue to pursue and coordinate other funding sources, including child care subsidies. Funds received through this program must be used to supplement, not supplant, any funds currently provided for programs within the locality. However, in the event a locality is prohibited from continuing the previous level of support to programs for at-risk four-year-olds from Title I of the federal Elementary and Secondary Education Act (ESEA), the state and local funds provided in this grants program may be used to continue services to these Title I students. Such prohibition may occur due to amendments to the allocation formula in the reauthorization of ESEA as the No Child Left Behind Act of 2001 or due to a percentage reduction in a locality's Title I allocation in 2016-2017 or 2017-2018. Any locality so affected shall provide written evidence to the Superintendent of Public Instruction and request his approval to continue the services to Title I students.
d.1) Local plans must indicate the number of at-risk four-year-old children to be served, and the eligibility criteria for participation in this program shall be consistent with the economic and educational risk factors stated in the 2015-2016 programs guidelines that are specific to: (i) family income at or below 200 percent of poverty, (ii) homelessness, (iii) student's parents or guardians are school dropouts, or (iv) family income is less than 350 percent of federal poverty guidelines in the case of students with special needs or disabilities. Up to 15 percent of a division's slots may be filled based on locally established eligibility criteria so as to meet the unique needs of at-risk children in the community.
2) The Department of Education is directed to compile from each school division the aggregated information as to the number of enrolled students whose families are (i) at or below 130 percent of poverty, and (ii) above 130 percent but below 200 percent of poverty. The Department shall report this information annually, after the application and fall participation reports are submitted to the Department from the school divisions, to the Chairmen of House Appropriations and Senate Finance Committees. In addition, the Department will post and maintain the summary information by division on the Department's website in keeping with current student privacy policies.
e.1) The Department of Education and the Council on Child Day Care and Early Childhood Programs shall provide technical assistance for the administration of this grant program to provide assistance to localities in developing a comprehensive, coordinated, quality preschool program for serving at-risk four-year-old children.
a. An additional payment of $20,057,840 the first year and $20,098,089 $22,635,044 the second year from the Lottery Proceeds Fund shall be disbursed by the Department of Education to local school divisions for the purposes of providing early reading intervention services to students in grades kindergarten through 3 who demonstrate deficiencies based on their individual performance on diagnostic tests which have been approved by the Department of Education. The Department of Education shall review the tests of any local school board which requests authority to use a test other than the state-provided test to ensure that such local test uses criteria for the early diagnosis of reading deficiencies which are similar to those criteria used in the state-provided test. The Department of Education shall make the state-provided diagnostic test used in this program available to local school divisions. School divisions shall report the results of the diagnostic tests to the Department of Education on an annual basis at a time to be determined by the Superintendent of Public Instruction.
a. An additional payment of $12,968,589 the first year and $12,775,341 $12,828,757 the second year from the Lottery Proceeds Fund shall be disbursed by the Department of Education to local school divisions for the purposes of providing math intervention services to students in grades 6, 7, 8 and 9 who are at-risk of failing the Algebra I end-of-course test, as demonstrated by their individual performance on diagnostic tests which have been approved by the Department of Education. In the second year, this reflects $199,992 apportioned to each school division to account for the cost of the diagnostic test. The Department of Education shall review the tests to ensure that such local test uses state-provided criteria for diagnosis of math deficiencies which are similar to those criteria used in the state-provided test. The Department of Education shall make the state-provided diagnostic test used in this program available to local school divisions. School divisions shall report the results of the diagnostic tests to the Department of Education on an annual basis at a time to be determined by the Superintendent of Public Instruction.
A payment of $53,267,521 the first year from the Lottery Proceeds Fund and $55,594,856 $57,167,836 the second year from the general fund shall be disbursed by the Department of Education to local school divisions to support the state share of 17 professional instructional positions per 1,000 students for whom English is a second language. Local school divisions shall provide a local match based on the composite index of local ability-to-pay.
b. Out of the appropriations in this Item, the Department of Education shall make available, subject to implementation by the Superintendent of Public Instruction, an amount estimated at $84,678,643 the first year and $32,680,039 from the general fund and $54,898,940 $92,162,325 from the Lottery Proceeds Fund the second year for the purpose of the state's share of the tuition rates for approved public school regional programs. Notwithstanding any contrary provision of law, the state's share of the tuition rates shall be based on the composite index of local ability-to-pay.
c. Out of the amounts for Financial Assistance for Categorical Programs, $34,904,851 the first year and $35,588,024 $34,706,297 the second year from the general fund is appropriated to permit the Department of Education to enter into agreements with selected local school boards for the provision of educational services to children residing in certain hospitals, clinics, and detention homes by employees of the local school boards. The portion of these funds provided for educational services to children residing in local or regional detention homes shall only be determined on the basis of children detained in such facilities through a court order issued by a court of the Commonwealth. The selection and employment of instructional and administrative personnel under such agreements will be the responsibility of the local school board in accordance with procedures as prescribed by the local school board. State payments for the first year to the local school boards operating these programs will be based on certified expenditures from the fourth quarter of FY 2016 and the first three quarters of FY 2017. State payments for the second year to the local school boards operating these programs will be based on certified expenditures from the fourth quarter of FY 2017 and the first three quarters of FY 2018.
b. This appropriation includes $2,774,478 the first year and $1,387,240 $1,387,387 the second year from the Lottery Proceeds Fund to support Project Graduation and any associated administrative and contractual service expenditures related to this initiative.
b. This appropriation includes $498,000 the first year and $498,000 the second year from the general fund to expand the Virtual Virginia full-time pilot program to 200 students in grades nine through 12.
c. This appropriation includes $260,000 the first year and $330,000 the second year from the general fund to expand the virtual mathematics outreach pilot program to offer additional mathematics courses.
b. This appropriation provides $9,198,359 the first year and $9,595,565 $10,228,314 the second year from the Lottery Proceeds Fund to support children attending public school who have been placed in foster care or other such custodial care across jurisdictional lines, as provided by subsections A and B of § 22.1-101.1, Code of Virginia. To the extent these funds are not adequate to cover the full costs specified therein, the Department is authorized to expend unobligated balances in this Item for this support.
2) Out of the amounts for Governor's School Payments, $93,000 the first year and $41,000 the second year is provided to support the Hanover Regional Summer Governor's School for Career and Technical Advancement, which was established pursuant to Chapter 425, 2014 Acts of Assembly, and Chapter 665, 2015 Acts of Assembly.
4) This appropriation includes an additional $1,223,796 the first year and $1,250,538 $1,243,911 the second year from the general fund to provide the state's share of a 2.5 percent increase in the tuition amount, and the state's share of $50.00 per course per student adjustment added after the 2.5 percent increase. The 2.5 percent increase and the $50.00 per course adjustment shall only be effective for fiscal year 2017 and fiscal year 2018. The local funding contribution of each school division participating in an Academic Year Governor's Schools program in either year of the biennium shall not be reduced on a per pupil basis below the amount in fiscal year 2016.
5) The Department of Education shall review the distribution methodology used to determine the Governor's School tuition payments by November 4, 2016, and submit the findings of the review to the Chairmen of House Appropriations and Senate Finance Committees. The review shall include, but not be limited to, consideration of the length of the academic program day with the intent to determine and provide an equitable distribution of tuition payments based on the actual length of academic program day, the appropriate state and local shares, and the academic model used by Governor's Schools in the configuration of the funding formula.
i. Out of this appropriation, $100,000 the first year from the general fund is available for the Department of Education to develop, in collaboration with the school divisions and community colleges in the Roanoke Valley region, a model proposal that establishes a Regional Career and Technical Governor's School Center.
j. Out of the appropriation included in paragraph 40 of this item, $135,366 $134,841 the second year from the general fund is included in the Academic Year Governor's School funding allocation to increase the per pupil amount the second year as an add-on for a compensation supplement payment equal to 2.0 percent of base pay on February 15, 2018, for Academic Year Governor's School instructional and support positions.
a. Out of this appropriation, $4,887,179 the first year and $5,492,229 $5,722,214 the second year from the Lottery Proceeds Fund is included to continue a state funded incentive program to maximize federal school nutrition revenues and increase student participation in the school breakfast program. These funds are available to any school division as a reimbursement for breakfast meals served that are in excess of the baseline established by the Department of Education. The per meal reimbursement shall be $0.22; however, the department is authorized, but not required to reduce this amount proportionately in the event that the actual number of meals to be reimbursed exceeds the number on which this appropriation is based so that this appropriation is not exceeded.
c.1) Out of this appropriation, $1,074,000 the first year and $1,074,000 the second year from the general fund is provided to fund an elementary school After-the-Bell Model breakfast pilot program available on a voluntary basis only to elementary schools where student eligibility for free or reduced lunch exceeds 45.0 percent for the participating eligible elementary school, and to provide additional reimbursement for eligible meals served in the current traditional school breakfast program at all grade levels in any participating school. The Department of Education is directed to ensure that only eligible elementary schools receive reimbursement funding for participating in the After-the-Bell school breakfast model. The elementary schools participating in the pilot program shall evaluate the educational impact of the models implemented that provide school breakfasts to students after the first bell of the school day, based on the guidelines developed by the Department of Education and submit the required report to the Department of Education no later June 30, 2017 for the 2016-2017 school year and no later than June 30, 2018 for the 2017-2018 school year.
2) The Department of Education shall communicate, through Superintendent's Memo, to school divisions the types of breakfast serving models and the criteria that will meet the requirements for this State reimbursement, which may include, but are not limited to, breakfast in the classroom, grab and go breakfast, or a breakfast after first period. School divisions may determine the breakfast serving model that best applies to its students, so long as it occurs after the instructional day has begun. For the 2016-2017 and 2017-2018 school years, the Department of Education shall monthly transfer to each school division a reimbursement rate of $0.05 per breakfast meal that meets either of the established criteria.
3) No later than July 1, 2016 for the 2016-2017 school year and no later than July 1, 2017 for the 2017-2018 school year, the Department of Education shall provide for a pilot breakfast program application process for school divisions with eligible elementary schools, including guidelines regarding specified required data to be compiled from the prior school year or years and during the one-year pilot. The number of approved applications shall be based on the estimated number of pilot sites that can be accommodated within the approved funding level. The reporting requirements must include: student attendance and tardy arrivals, office discipline referrals, student achievement measures, teachers' responses to the impact of the pilot program before and after implementation, and the financial impact on the division's school food program. The Department of Education shall collect and compile the results of the pilot breakfast program and shall submit the report to the Governor and the Chairmen of the House Appropriations and Senate Finance Committees no later than August 1 following each school year.
a. An additional payment of $1,476,790 the first year and $1,476,790 the second year from the general fund shall be disbursed by the Department of Education to qualifying local school divisions for the purpose of providing a reading specialist for any school with a third grade that has a school-wide pass rate of less than 75 percent on the reading Standards of Learning (SOL) assessments.
b. These payments shall be based on the state's share of the cost of providing one reading specialist per qualifying school. School divisions with schools participating in this program in fiscal year 2016 shall be eligible to receive funding at 100 percent of the state share the first year and 50 percent of the state share the second year for the same schools and such schools are granted a one-year extension of the two-year waiver referenced in subsection c. for a third year in fiscal year 2018. The Department of Education is authorized to disburse additional payments to divisions from any remaining funds each year to support additional qualifying schools and shall give priority to such schools with the lowest SOL pass rates for reading or the greatest number of years accredited with warning in English. Payments to school divisions in support of such additional qualifying schools each year shall be based on 100 percent of the state share of cost.
a. Included in this appropriation is $1,834,538 the first year and $1,834,538 the second year from the general fund in additional payments for reading or math instructional specialists at underperforming schools. From this amount, the state share of one reading or math specialist shall be provided to local school divisions with schools which have been denied accreditation or were accredited with warning for the third consecutive year based on school accreditation ratings for the 2015-2016 school year. Such schools shall be eligible to receive the state share of funding for both years of the biennium. In addition, following the academic review required by § 22.1-253.13:3, Code of Virginia, the Department of Education shall identify up to 20 additional schools to also receive the state share of a reading or math instructional specialist. The schools eligible for such personnel are those which were accredited with warning for the second consecutive year based on school accreditation ratings for the 2014-2015 and 2015-2016 school years and that have shown no or limited improvement in student achievement in the past year. Such schools shall also be eligible to receive the state share of funding for both years of the biennium. If, following certification from a school division that it will not participate in the program, the Department is authorized to identify additional eligible schools.
a. Out of this appropriation, an amount estimated at $36,581,531 the first year and $191,267,718 $191,272,274 the second year from the Lottery Proceeds Fund shall be disbursed by the Department of Education to local school divisions to support the state share of an estimated $52.56 per pupil the first year and $274.12 $274.29 per pupil the second year in adjusted March 31 average daily membership. These per pupil amounts are subject to change for the purpose of payment to school divisions based on the actual March 31 ADM collected each year. No locality shall be required to maintain a per pupil expenditure each year from local funds which is greater than the per pupil amount expended by the locality for such purposes in the year upon which the 2016-18 biennial Standards of Quality expenditure data were based.
c. Any lottery funds provided to school divisions from this item that are unexpended as of June 30, 2017, and June 30, 2018, shall be carried on the books of the locality to be appropriated to the school division in the following year.
a. Notwithstanding § 22.1-290.02, Code of Virginia, out of this appropriation, $550,000 the first year and $437,186 the second year from the general fund is provided for traineeships and program operation grants that shall be awarded to public Virginia institutions of higher education to prepare persons who are employed in the public schools of Virginia, state operated programs, or regional special education centers as special educators with a provisional license and enrolled either part-time or full-time in programs for the education of children with disabilities. Applicants shall be graduates of a regionally accredited college or university.
a.1) The appropriation in this item includes $31,981,550 $31,728,026 the second year from the general fund for the state share of a payment equivalent to a 2.0 percent salary incentive increase, effective February 15, 2018, for funded SOQ instructional and support positions. Funded SOQ instructional positions shall include the teacher, guidance counselor, librarian, instructional aide, principal, and assistant principal positions funded through the SOQ staffing standards for each school division in the biennium. This amount includes $135,366 the second year referenced in paragraph 28. h., for the Academic Year Governor's Schools for a 2.0 percent salary incentive increase, effective February 15, 2018, for instructional and support positions.
2) It is the intent that the instructional and support position salaries be increased in school divisions throughout the state by at least an average of 2.0 percent during the 2016-18 biennium. Sufficient funds are appropriated in this act to finance, on a statewide basis, the state share of a 2.0 percent salary increase for funded SOQ instructional and support positions, effective February 15, 2018, to school divisions which certify to the Department of Education, by June 1, 2017, that salary increases of a minimum average of 2.0 percent have been or will have been provided during the 2016-18 biennium, either in the first year or in the second year or through a combination of the two years, to instructional and support personnel. In certifying that the salary increases have been provided, school divisions may not include any salary increases that were provided in the first year solely to offset the cost of required member contributions to the Virginia Retirement System under § 51.1-144, Code of Virginia.