Transcript OAASFEP Fall Coordinators Conference Columbus, OH October

Brustein & Manasevit, PLLC
WHAT TITLE I
REQUIREMENTS REMAIN IN
THE LAND OF THE WAIVER
INITIATIVE?
Leigh M. Manasevit, Esq.
[email protected]
Brustein & Manasevit, PLLC
www.bruman.com
Spring Forum 2013
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Waiver Resources
•Guidance –
•Title I, Part A – July 2009
•Maintenance of Effort – See
program statutes
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•Statute – NCLB Section 9401
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The Secretary may grant a waiver of any ESEA
statutory or regulatory provision EXCEPT:
• Allocation or distribution of funds to SEAs,
LEAs, or other recipients of ESEA funds
• Comparability
• Supplement not supplant
• Equitable services to private school students
• Parent involvement
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NCLB – What can be waived?
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NCLB – What can be waived?
• Civil rights
• Maintenance of Effort
• Charter School requirements
• Use of funds for religion
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The Secretary may grant a waiver of any
ESEA statutory or regulatory provision
EXCEPT:
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June 28, 2011 Congressional Research
Service (CRS) Report on Secretary of
Education’s Waiver Authority
1. ED has the authority to waive
accountability provisions of Title I, Part A
2. It is unclear if the Secretary can condition
a waiver on other action(s) not required
by law
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ED
Announcement
on Waivers
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• ED makes the announcement
• September 23, 2011 Letter to Chiefs
• NCLB became a barrier to reform
• Opportunity to request flexibility
• State
• LEA
• Schools
http://www2.ed.gov/policy/gen/guid/se
cletter/110923.html
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Waivers
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• Flexibility in exchange for rigorous
and comprehensive state plans
• Improve educational outcomes
• Close achievement gaps
• Increase equity
• Improve instruction
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Letter
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“ESEA Flexibility”
September 23, 2011
1. 2013-2014 timeline –
develop new ambitious AMO’s
2. School improvement consequences: LEA not required to
take currently required improvement actions in Title I
Schools
3. LEA improvement identification: Not required to identify
for improvement LEA that fails 2 consecutive years
4. Rural LEAs
• Small Rural School Achievement or Rural and Low
Income program
• Flexibility regardless of AYP status
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• 10 provisions subject to waiver
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5. Schoolwide
Operate as schoolwide regardless of 40% poverty threshold if
• SEA identified as a priority or focus school with
interventions consistent with turnaround principles
6. School Improvement
• 1003a funds to serve any priority or focus school if SEA
determines school in need of support
7. Reward Schools
• Rewards to any reward school if the SEA determines
appropriate
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Waivers
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8. HQT improvement plans
• LEA that does not meet HQT no longer must
develop an improvement plan
• Flexibility in use of Title I and Title II funds
• LEA-SEA develop “more meaningful”
evaluation and support systems which
eventually will satisfy the HQT requirement
• SEA still must ensure poor and minority
children not taught at higher rates by
inexperienced, unqualified or out-of-field
teachers
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Waivers
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9. Transferability
• Up to 100%, same programs
10. SIG
• 1003g awards for any priority school
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Waivers
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• Optional #11
• 21st Century Community Learning
Centers support expanded learning
time during school day
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Waivers
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New Waiver #12
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• No AYP determination
for LEAs or Schools
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New Waiver #13
•LEA may serve Title I
eligible priority high
school with graduation
rate under 60% without
regard for rank and
serve???
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• New optional waiver from March 2013
FAQ Addendum
14) SEAs and LEAs would no longer have
to make AYP determinations
• http://www2.ed.gov/policy/eseaflex/fa
qaddendum.doc
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New Waiver!
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1. College and Career Ready Standards –
Develop and Implement:
• Reading/Language Arts
• Math
• Aligned assessments measuring
growth
• ELP assessment aligned to #1
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“In Exchange for…”
Must meet 4 principles
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2. State Developed Differentiated Recognition,
Accountability and Support
• Must develop system of Differentiated
Recognition, Accountability and Support
• All LEAs
• All Title I Schools
• Must consider Reading, Language Arts, and
Math
• All students
• All subgroups
• Graduation Rates
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“In Exchange for…”
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• School Performance over time
• New AMOs (ambitious)
• State LEAs
• Schools
• Subgroups
• Incentives and recognitions
• Dramatic systemic changes in lowest
performing schools
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3. Effective Instruction/Leadership
• Commit to develop/adopt pilot and
implement
• Teacher/principal evaluation
systems
• Student Growth = “Significant
Factor”
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“In Exchange for…”
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4. Reduce duplication
and unnecessary
burden
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“In Exchange for…”
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• 34 States and the District of
Columbia
• Arkansas, Arizona, Colorado,
Connecticut, District of
Columbia, Delaware, Florida,
Georgia, Idaho, Indiana, Kansas,
Kentucky, Louisiana, Maryland,
Massachusetts, Michigan,
Minnesota, Mississippi,
Missouri, Nevada, New Jersey,
New Mexico, New York, North
Carolina, Ohio, Oklahoma,
Oregon, Rhode Island, South
Carolina, South Dakota,
Tennessee, Utah, Virginia,
Washington, Wisconsin
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Waiver States
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• Alabama
• Alaska
• Hawaii
• Illinois
• Maine
• New Hampshire
• Pennsylvania
• Texas
• West Virginia
• Wyoming
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Waivers Pending
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Waivers Withdrawn & Rejected
• California
• Iowa
• Withdrawn:
• North Dakota
• Vermont
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• Rejected:
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Non-Waiver States
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• Montana & Nebraska have not
applied for a waiver
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• Did not stimulate new innovations (except
accountability)
• Did stimulate comprehensive plans for
improvement
• Some interesting ideas
• Few States have plans to reduce duplication and
unnecessary burden
• Creative sources of funds
http://www.americanprogress.org/wpcontent/uploads/issues/2012/07/pdf/nochildwaivers_intro.
pdf
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Center for American Progress
Report on Waivers - July 12, 2012
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• Report found that States are supportive of the waivers because of the
relief from some of the burdensome requirements of ESEA
• States were concerned with the effect of ESEA reauthorization on
waivers including confusion and additional costs of implementing
accountability systems and developing new teacher evaluation systems
• 24 of 38 States identified that costs could be greater under ESEA
waivers
• 11 of 34 States and D.C. that have received waivers have needed to
revise or implement new teacher and principal evaluations
• One State official commented on ED’s quantity of revisions to their
application as “erred on the side of ridiculous”
http://www.cepdc.org/cfcontent_file.cfm?Attachment=McMurrerYoshioka%5FReport%5
FStatesPerspectivesonWaivers%5F030413%2Epdf
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Center on Education Policy
Waiver Report - March 2013
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• Study concluded that a majority of waiver States have
ignored federal regulations to promote accountability with
high school graduation rates
• 2008 – ED regulations required States to measure high
school graduation rates as an accountability measure, a
four-year cohort rate
• 23 waiver States were permitted to use an accountability
system inconsistent with the regulations by including GED
certificates and drop out rates
• 12 States decreased the weight of graduation rates to less
than 25%
• http://www.all4ed.org/files/ESEAWaivers.pdf
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Alliance for Excellent Education ESEA
Waivers Study-February 2013
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• ED to monitor State Waivers SY 2012-2013
• 3 components: “Part A”- ongoing to include
technical assistance and implementation of
waiver components; “Parts B & C” TBA
• Flexibility Monitoring Part A Protocol:
http://www.ed.gov/esea/flexibility/docume
nts/monitoring-part-a-protocol-acc.doc
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ED Monitoring
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BASIC
ESEA TITLE I, PART A
REQUIREMENTS NOT
SUBJECT TO WAIVER
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General Program Requirements
Ranking and Serving
Parental Involvement
Set-asides
Maintenance of Effort
Comparability
Supplement Not Supplant
SES/Choice
Equitable Services
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Title I, Part A Topics
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• Title I, Part A is a State-administered
program
• ED grants funds to States based on
statutory formulas
• State grants funds to LEAs based on
statutory formula
• LEA allocates funds to schools based
on ranking and serving
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Title I Basics
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• Allocations are based on
poverty levels
• Service is based on
academic need
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Title I Basics (cont.)
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• Two models of Title I, Part A program:
1. Targeted Assistance
2. Schoolwide
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Program Design
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Targeted Assistance:
Focus on Identified Students
• Ensure Title I $ solely used to benefit
identified students
• For schools ineligible or choose not to
operate schoolwide
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• Identify “Title I students” and provide
with supplemental services
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Who is a Title I student?
identified
as failing or at risk
of failing State
standards: NOT
based on poverty!
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 Students
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• Student eligibility is based on:
• Multiple
• Educationally related
• Objective criteria
• Developed by LEA
• If preschool - grade 2, judgment of
teacher, interviews with parents, and
other developmentally appropriate
means
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Eligible Title I students
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 If student in the previous 2 years received services in
 Head Start
 Even Start
 Early Reading First or
 Migrant Part C
If the student is currently eligible under
 Neglected and Delinquent or Homeless
Migrant (not receiving Part C services), IDEA and LEP
students are eligible on the same basis as any other
student
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Automatically Eligible
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• Records must be
maintained that
document that Part A
funds are spent on
activities and services
for only Title I, Part A
participating students
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Recordkeeping
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• Combine Federal, State, and local programs
(sometimes funds) to upgrade the entire
educational program
• However, in most States the SEA must approve
consolidation!
• All students in schoolwide schools
may be served by Title I employees
• Pre-requisite: 40% poverty
• TAS by default, unless this
threshold is met
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Schoolwide Programs
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Ranking and Serving Schools
Under Section 1113
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• Percentage of children from low-income
families who reside in area . . .
AT LEAST AS HIGH AS . . .
• Percentage of children from low-income
families in LEA
• LEA has flexibility to serve any school
attendance area with at least 35% poverty
– even if percentage is lower than average
of LEA
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Eligible School Attendance Areas
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Eligible School Attendance Areas
OR
• Enrollment Model
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• Residency Model
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Ranking and Serving
• At or below 75% poverty
• May rank by grade span
Serve strictly in order of rank!
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• Exceeding 75% poverty
• Strictly by poverty
• Without regard to grade span
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• After set-asides
• Allocate to schools based on total
# of low income residing in area
(including nonpublic)
• Discretion on amount of PPA
• Higher PPAs must be in higher
schools on ranked list
• No regard to SWP or TAS
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Allocation to Schools
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• “Skip” school, if:
1. Comparability met
2. Receiving supplemental State/local
funds used in Title I-like program
3. Supp. State/local funds meet or
exceed amount would be received
under Title I
• Still count and serve nonpublic in area
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Exception: Rank & Serve
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Parental Involvement
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• Annual meeting
• Involvement in planning, review and
improvement of Title I programs
• Provide parents timely information
about Title I programs
• Coordinate with other programs,
parent resource centers
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Parental Involvement Overview
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• Annual LEA report cards
• Parents “right to know” of teacher qualifications
• Highly qualified teacher status
• Achievement levels on State academic assessments
• School improvement status
• School Choice notice as a result of school
improvement status
• Supplemental educational services as a result of
school improvement status
• Schoolwide program authority
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Parental Notifications
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• LEA parental involvement policy
• School parental involvement policy
• School/Parent compact
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Parental Involvement Policies
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• 1% of LEA’s Title I allocation
• 95% of 1% to schools
• LEA may keep anything over 1% for
LEA-level parental involvement
• Private school portion based on
entire amount
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Parental Involvement
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Other LEA Set-Asides;
Maintenance of Effort,
Comparability and
Supplement Not
Supplant
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• 20% Choice transportation & SES
• 5% Teacher & paraprofessional
qualifications????
• 1% Parental involvement
• 10% Professional development (if LEA
identified)
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LEA Reservations of Title I Funds
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• Reserve at least 1%
• 95% of 1% to schools
• If reserve >1%, still only need to
distribute 95% of first 1% to schools
• But ALL reserved subject to equitable
participation for private school
students
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1% Parent Involvement
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10% Professional Development
• “Title I funds cannot be used to pay for
professional development of staff who do not
serve any Title I students at some point during
the school day.”
• Ray Simon guidance letter (2004)
• Question: Include teachers who do not serve
any Title I students if there is no additional cost
to the Title I program?
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• If the LEA is identified for improvement.
• May include any teachers that serve Title I
students at some point during the day
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 No % specified
Administration (public & private)
Private school students
Homeless
To serve students in non-Title I schools
Neglected & Delinquent (N&D)
To serve students in N&D institutions or day
facilities
Incentives to teachers in ID’d schools (< 5%)
Professional development
“Other authorized activities”
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LEA Reservations (cont.)
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• “Necessary and reasonable” amount
• Example: Administration
• Government Accountability Office
found national average is around 10%
• Example: Homeless
• Shelter counts
• Match McKinney-Vento subgrant
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If No % Specified
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Maintenance of Effort
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• Most Directly Affected by
Declining Budgets
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MOE
• From State and local funds
• From preceding year must not be less
than 90% of the second preceding year
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• The combined fiscal effort per student or
the aggregate expenditures of the LEA
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• Need to compare final financial data
• Compare “immediately” PFY to
“second” PFY
• EX: To receive funds available July 2009,
compare 2007-08 school year to 200607 school year
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MOE: Preceding Fiscal Year
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MOE: Failure under NCLB
• Reduce all applicable NCLB programs, not
just Title I
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• SEA must reduce amount of allocation in
the exact proportion by which LEA fails to
maintain effort below 90%
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• USDE Secretary may waive if:
• Exceptional or uncontrollable
circumstances, such as natural
disaster
OR
• Precipitous decline in financial
resources of the LEA
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MOE: Waiver
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ED Waivers
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•To State to Grant to LEAs
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Comparability
Legal Authority:
Title I Statute: §1120A(c)
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• How is this calculated and why does
it matter?
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• An LEA may receive Title I, Part A funds
only if it uses State and local funds to
provide services in Title I schools that,
taken as a whole, are at least comparable
to the services provided in non-Title I
schools.
• If all are Title I schools, all must be
“substantially comparable.”
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General Rule - §1120A(c)
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Timing Issues
• YET, LEAs must maintain records that are
updated at least “biennially”
(1120A(c)(3)(B))
• Review for current year and make
adjustments for current year
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• Guidance: Must be annual determination
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Supplement Not Supplant
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•Surprisingly Not Greatly
Affected by Declining Budgets!
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•Federal funds must be used to
supplement, and in no case
supplant, State and local
resources
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Supplement Not Supplant
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“What would have
happened in the absence
of the federal funds??”
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•OMB Circular A-133
Compliance Supplement
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Auditors’ Tests for
Supplanting
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• Required to be made available under
other federal, state, or local laws
• Paid for with non-federal funds in prior
year
• Same service to non-Title I students
with State/local funds
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Auditors presume supplanting occurs
if federal funds were used to provide
services . . .
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School Choice and
Supplemental Educational
Services (SES)
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Equitable Services for
Private School Students
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• LEA must provide “timely and
meaningful” consultation
• Timely
• Before the LEA makes any decisions
• Meaningful
• Genuine opportunity for parties
to express their views
• Views seriously considered
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Consultation
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 Consultation must include:
1. How the LEA will identify the needs of eligible private
school children
2. What services the LEA will offer
3. How and when the LEA will make decisions about the
delivery of services
4. How, where, and by whom the LEA will provide
services
5. How the LEA will assess the services and use the
results of that assessment to improve Title I services
6. The size and scope of the equitable services
7. The method or the sources of poverty data used
8. The services the LEA will provide to teachers and
families of participating private school children
• MUST Document Consultation was timely and
meaningful!
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Consultation (cont.)
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Discussion about use of 3rd Party Providers
• Must consider private school officials’ views
– but LEA decides whether it will use 3rd
Party Providers
• If LEA says no, LEA must provide written
analysis of why officials’ opinion rejected
• Must be a written record if private schools
want to appeal to SEA about LEA decision
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Consultation must include:
(cont.)
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• LEAs must obtain written affirmation from
private school officials stating timely and
meaningful consultation occurred
• Signed by officials from each school
with participating children, or
representative
• Send to SEA and maintain in LEA’s files
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Consultation: Written Affirmation
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Example in Guidance
General Formula:
• Based on number of:
1. Private school students
2. From low-income families
3. Who reside in Title I-participating
public school attendance areas
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Deriving Instructional Allocation
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• Off the top for districtwide instruction
• Off the top for parental involvement
• Off the top for professional
development
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Private school students also must get
equitable share of some set-asides:
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• Off the top!!
• Before public and private school
allocations are calculated
• LEA administrative costs for public and
private school program
• Third party contractors (private
companies) administrative costs
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Administrative Costs
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• Services may be on-site at private school,
with safeguards
• Guidance: Need not remove religious
objects from room
• Must have safeguards in place to
ensure NOT promoting religion
• Neutral, secular and non-ideological
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Agostini: Safeguards
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QUESTIONS???
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This presentation is intended solely to provide general
information and does not constitute legal
advice. Attendance at the presentation or later review of
these printed materials 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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Disclaimer
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