WHAT ESEA TITLE I REQUIREMENTS REMAIN IN LIGHT OF THE WAIVER? 1 Leigh M. Manasevit, Esq....

WHAT ESEA TITLE I REQUIREMENTS REMAIN IN LIGHT OF THE WAIVER?

1

Leigh M. Manasevit, Esq.lmanasevit@bruman.com

Brustein & Manasevit, PLLCFall Forum 2013

Brus

tein

& M

anas

evit,

PLL

C

Waiver Resources

•Statute – NCLB, Section 9401

•Guidance – •Title I, Part A – July 2009

•Maintenance of Effort – See program statutes

2

Brus

tein

& M

anas

evit,

PLL

C

NCLB – What can be waived?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

3

Brus

tein

& M

anas

evit,

PLL

C

NCLB – What can be waived?The Secretary may grant a waiver of any ESEA statutory or regulatory provision EXCEPT:

•Civil rights•Maintenance of Effort•Charter School requirements•Use of funds for religion 4

Brus

tein

& M

anas

evit,

PLL

C

June 28, 2011 Congressional Research Service (CRS) Report on Secretary of Education’s Waiver Authority1.ED has the authority to waive accountability provisions of Title I, Part A2.It is unclear if the Secretary can condition a waiver on other action(s) not required by law

5

Brus

tein

& M

anas

evit,

PLL

C

ED Announcementon Waivers

6

Brus

tein

& M

anas

evit,

PLL

C

Waivers • ED makes the announcement• September 23, 2011 Letter to Chiefs•NCLB became a barrier to reform•Opportunity to request flexibility• State• LEA• Schoolshttp://www2.ed.gov/policy/gen/guid/

secletter/110923.html 7

Brus

tein

& M

anas

evit,

PLL

C

Letter•Flexibility in exchange for rigorous and comprehensive State plans• Improve educational outcomes•Close achievement gaps• Increase equity• Improve instruction

8

Brus

tein

& M

anas

evit,

PLL

C

“ESEA Flexibility” September 23, 2011

• 10 provisions subject to waiver1. 2013-2014 timeline –

Develop new ambitious AMO’s2. 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

9

Brus

tein

& M

anas

evit,

PLL

C

Waivers5. Schoolwide

Operate as schoolwide regardless of 40% poverty threshold if• SEA identified as a priority or focus school with

interventions consistent with turnaround principles6. 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

10

Brus

tein

& M

anas

evit,

PLL

C

Waivers8. 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

11

Brus

tein

& M

anas

evit,

PLL

C

Waivers

9. Transferability• Up to 100%, same programs

10. SIG• 1003g awards for any priority school

12

Brus

tein

& M

anas

evit,

PLL

C

Waivers

•Optional #11•21st Century Community Learning Centers support expanded learning time during school day

13

Brus

tein

& M

anas

evit,

PLL

C

New Waiver #12

•No AYP determination for LEAs or Schools

14

Brus

tein

& M

anas

evit,

PLL

C

New Waiver #13

•LEA may serve Title I eligible priority high school with graduation rate under 60% without regard for rank and serve???

15

Brus

tein

& M

anas

evit,

PLL

C

New Waiver #14

•New optional waiver from March 2013 FAQ Addendum•SEAs and LEAs would no longer have to make AYP determinations•http://www2.ed.gov/policy/eseaflex/faqaddendum.doc 16

Brus

tein

& M

anas

evit,

PLL

C

Newest New Waiver

• Double Testing due to roll out of new assessments

• June 2013• Administer either

a) Existing Assessment orb) Field Test of New

Brus

tein

& M

anas

evit,

PLL

C

17

“In Exchange for…”Must meet 4 principles

1. College and Career Ready Standards – Develop and Implement:• Reading/Language Arts• Math• Aligned assessments measuring

growth• ELP assessment aligned to #1 18

Brus

tein

& M

anas

evit,

PLL

C

“In Exchange for…”

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

19

Brus

tein

& M

anas

evit,

PLL

C

• School Performance over time•New AMOs (ambitious)• State LEAs• Schools• Subgroups

• Incentives and recognitions•Dramatic systemic changes in lowest

performing schools20

Brus

tein

& M

anas

evit,

PLL

C

“In Exchange for…”

3. Effective Instruction/Leadership• Commit to develop/adopt pilot and

implement• Teacher/principal evaluation

systems• Student Growth = “Significant

Factor” 21

Brus

tein

& M

anas

evit,

PLL

C

“In Exchange for…”

4. Reduce duplication and unnecessary burden

22

Brus

tein

& M

anas

evit,

PLL

C

Waiver States• 42 States, Puerto Rico, the District

of Columbia, CORE districts in California

• Alabama, Alaska, Arkansas, Arizona, Colorado, Connecticut, District of Columbia, Delaware, Florida, Georgia, Hawaii, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, Wisconsin

23

Brus

tein

& M

anas

evit,

PLL

C

Waivers Pending• Illinois• Wyoming• Bureau of Indian Education

24

Brus

tein

& M

anas

evit,

PLL

C

Waivers Withdrawn & Rejected

•Rejected:• California• Iowa•Withdrawn: •North Dakota• Vermont

25

Brus

tein

& M

anas

evit,

PLL

C

Non-Waiver States

•Montana & Nebraska have not applied for a waiver

26

Brus

tein

& M

anas

evit,

PLL

C

Center for American ProgressReport on Waivers - July 12, 2012• 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 fundshttp://www.americanprogress.org/wp-content/uploads/

issues/2012/07/pdf/nochildwaivers_intro.pdf 27

Brus

tein

& M

anas

evit,

PLL

C

Center on Education Policy Waiver Report - March 2013• 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.cep-dc.org/cfcontent_file.cfm?Attachment=McMurrerYoshioka%5FReport%5FStatesPerspectivesonWaivers%5F030413%2Epdf

28

Brus

tein

& M

anas

evit,

PLL

C

Alliance for Excellent Education ESEA Waivers Study - February 2013• 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

29

Brus

tein

& M

anas

evit,

PLL

C

ED Monitoring

• 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/documents/monitoring-part-a-protocol-acc.doc

30

Brus

tein

& M

anas

evit,

PLL

C

BASIC ESEA TITLE I, PART A REQUIREMENTS NOT SUBJECT TO WAIVER

31

Brus

tein

& M

anas

evit,

PLL

C

Title I, Part A Topics General Program Requirements Ranking and Serving Parental Involvement Set-asides Maintenance of Effort Comparability Supplement Not Supplant SES/Choice Equitable Services

32

Brus

tein

& M

anas

evit,

PLL

C

Title I Basics• 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 33

Brus

tein

& M

anas

evit,

PLL

C

Title I Basics (cont.)

34

•Allocations are based on poverty levels

•Service is based on academic need

Brus

tein

& M

anas

evit,

PLL

C

Program Design

• Two models of Title I, Part A program:1. Targeted Assistance2. Schoolwide

35

Brus

tein

& M

anas

evit,

PLL

C

Targeted Assistance: Focus on Identified Students• Identify “Title I students” and provide

with supplemental services

• Ensure Title I $ solely used to benefit identified students

• For schools ineligible or choose not to operate schoolwide

36

Brus

tein

& M

anas

evit,

PLL

C

Who is a Title I student?

Students identified as failing or at risk of failing State standards: NOT based on poverty!

37

Brus

tein

& M

anas

evit,

PLL

C

Eligible Title I students• 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 38

Brus

tein

& M

anas

evit,

PLL

C

Automatically Eligible 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

39

Brus

tein

& M

anas

evit,

PLL

C

Recordkeeping

• Records must be maintained that document that Part A funds are spent on activities and services for only Title I, Part A participating students

40

Brus

tein

& M

anas

evit,

PLL

C

Schoolwide Programs• 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

41

Brus

tein

& M

anas

evit,

PLL

C

Ranking and Serving Schools Under Section 1113

42

Brus

tein

& M

anas

evit,

PLL

C

Eligible School Attendance Areas•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

43

Brus

tein

& M

anas

evit,

PLL

C

Eligible School Attendance Areas

•Residency Model

OR

•Enrollment Model44

Brus

tein

& M

anas

evit,

PLL

C

Ranking and Serving • Exceeding 75% poverty• Strictly by poverty•Without regard to grade span

•At or below 75% poverty•May rank by grade span

Serve strictly in order of rank! 45

Brus

tein

& M

anas

evit,

PLL

C

Allocation to Schools•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 46

Brus

tein

& M

anas

evit,

PLL

C

Exception: Rank & Serve• “Skip” school, if:

1. Comparability met2. Receiving supplemental State/local

funds used in Title I-like program3. Supp. State/local funds meet or

exceed amount would be received under Title I

• Still count and serve nonpublic in area 47

Brus

tein

& M

anas

evit,

PLL

C

Parental Involvement

48

Brus

tein

& M

anas

evit,

PLL

C

Parental Involvement Overview•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 49

Brus

tein

& M

anas

evit,

PLL

C

Parental Notifications

• 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 50

Brus

tein

& M

anas

evit,

PLL

C

Parental Involvement Policies

• LEA parental involvement policy• School parental involvement policy• School/Parent compact

51

Brus

tein

& M

anas

evit,

PLL

C

Parental Involvement•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

52

Brus

tein

& M

anas

evit,

PLL

C

53

Other LEA Set-Asides;

Maintenance of Effort,

Comparability and Supplement Not

Supplant

Brus

tein

& M

anas

evit,

PLL

C

LEA Reservations of Title I Funds•20% Choice transportation & SES•5% Teacher & paraprofessional

qualifications???? •1% Parental involvement•10% Professional development (if LEA

identified)

54

Brus

tein

& M

anas

evit,

PLL

C

1% Parental Involvement

•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

55

Brus

tein

& M

anas

evit,

PLL

C

10% Professional Development• If the LEA is identified for improvement.• May include any teachers that serve Title I

students at some point during the day

• “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?

56

Brus

tein

& M

anas

evit,

PLL

C

LEA Reservations (cont.)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”

57

Brus

tein

& M

anas

evit,

PLL

C

If No % Specified• “Necessary and reasonable” amount• Example: Administration•Government Accountability Office

found national average is around 10%• Example: Homeless• Shelter counts•Match McKinney-Vento subgrant

58

Brus

tein

& M

anas

evit,

PLL

C

Maintenance of Effort

•Most Directly Affected by Declining Budgets

59

Brus

tein

& M

anas

evit,

PLL

C

MOE• The combined fiscal effort per student or

the aggregate expenditures of the LEA

• From State and local funds

• From preceding year must not be less than 90% of the second preceding year

60

Brus

tein

& M

anas

evit,

PLL

C

MOE: Preceding Fiscal Year•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 2006-07 school year

61

Brus

tein

& M

anas

evit,

PLL

C

MOE: Failure under NCLB

62

• SEA must reduce amount of allocation in the exact proportion by which LEA fails to maintain effort below 90%

•Reduce all applicable NCLB programs, not just Title I

Brus

tein

& M

anas

evit,

PLL

C

MOE: Waiver•USDE Secretary may waive if:•Exceptional or uncontrollable circumstances, such as natural disaster

OR•Precipitous decline in financial resources of the LEA 63

Brus

tein

& M

anas

evit,

PLL

C

ED Waivers

•To State to Grant to LEAs

64

Brus

tein

& M

anas

evit,

PLL

C

Comparability •How is this calculated and why does it matter?

Legal Authority:Title I Statute: §1120A(c)

65

Brus

tein

& M

anas

evit,

PLL

C

General Rule - §1120A(c)•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.” 66

Brus

tein

& M

anas

evit,

PLL

C

Timing Issues

• Guidance: Must be annual determination

• 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 67

Brus

tein

& M

anas

evit,

PLL

C

Supplement Not Supplant

•Surprisingly Not Greatly Affected by Declining Budgets!

68

Brus

tein

& M

anas

evit,

PLL

C

Supplement Not Supplant

•Federal funds must be used to supplement, and in no case supplant, State and local resources

69

Brus

tein

& M

anas

evit,

PLL

C

“What would have happened in the absence of the Federal funds???”

70

Brus

tein

& M

anas

evit,

PLL

C

Auditors’ Tests for Supplanting

•OMB Circular A-133 Compliance Supplement

71

Brus

tein

& M

anas

evit,

PLL

C

Auditors presume supplanting occurs if Federal funds were used to provide services . . .

•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 72

Brus

tein

& M

anas

evit,

PLL

C

School Choice and Supplemental Educational

Services (SES)

73

Brus

tein

& M

anas

evit,

PLL

C

74

Equitable Services for Private School Students

Brus

tein

& M

anas

evit,

PLL

C

Consultation• 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 75

Brus

tein

& M

anas

evit,

PLL

C

Consultation (cont.)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 services4. 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 services6. 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!

76

Brus

tein

& M

anas

evit,

PLL

C

Consultation must include: (cont.)

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 decision77

Brus

tein

& M

anas

evit,

PLL

C

Consultation: Written Affirmation• 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

Example in Guidance78

Brus

tein

& M

anas

evit,

PLL

C

Deriving Instructional Allocation

General Formula:• Based on number of:

1. Private school students 2. From low-income families3. Who reside in Title I-participating

public school attendance areas

79

Brus

tein

& M

anas

evit,

PLL

C

Private school students also must get equitable share of some set-asides:

•Off the top for districtwide instruction•Off the top for parental involvement•Off the top for professional

development

80

Brus

tein

& M

anas

evit,

PLL

C

Administrative Costs• 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 costs81

Brus

tein

& M

anas

evit,

PLL

C

Agostini: Safeguards• 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

82

Brus

tein

& M

anas

evit,

PLL

C

QUESTIONS??? 83

Brus

tein

& M

anas

evit,

PLL

C

DisclaimerThis 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.

84

Brus

tein

& M

anas

evit,

PLL

C