21ST CENTURY COMMUNITY LEARNING CENTERS AND

NON-TRADITIONAL PROVIDERS

Brette Kaplan, Esq.bkaplan@bruman.comBrustein & Manasevit, PLLCSpring 2012 Forum

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Agenda21st Century Community Learning Centers (21st CCLC)

ResourcesSelecting SubgranteesSubgrant v. Contract21st CCLC Program OverviewGeneral Fiscal RulesEquitable ServicesProgram Evaluation Common Monitoring Findings

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21st CCLC Resources

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• ED’s Website: http://www.ed.gov/programs/21stcclc/index.html

• 21st CCLC Statute: http://www.ed.gov/policy/elsec/leg/esea02/pg55.html

• 21st CCLC Guidance: http://www.ed.gov/programs/21stcclc/guidance2003.doc

• Regulations on the Participation of Faith-Based and Community Organizations in Department Programs: http://www.ed.gov/policy/fund/reg/fbci-reg.html

• EDGAR: http://www.ed.gov/policy/fund/reg/edgarReg/edgar.html

• OMB Circulars: http://www.whitehouse.gov/omb/circulars/

Legal Structure of Federal Programs

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Selecting Subgrantees

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Subgrantee Selection Requirements• Eligible organizations

• Any public or private organization• Ex: non-profits, city or county government agencies,

FBOs, IHEs, and for-profit corporations• Consortium of 2 or more entities

• Awards can only be made to responsible subgrantees and contractors possessing the ability to perform successfully under the terms and conditions of the proposed grant or contract.• EDGAR, Section 80.36(b)(8)

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What must be included in a local organization’s application? (Guidance, F-3)• Before- & after-school, summer &

other non-school time activities;• How students will travel to/from

center and home;• How organization will disseminate

information about the center;• How activities are expected to

improve student achievement;• Federal, state, & local programs

that will coordinate with proposed program for effective use of public resources

• How program will meet principles of effectiveness

• Partnership between LEA, CBO, & other public or private organization (if appropriate);

• Evaluation of community needs & available resources, and description of how program addresses those needs

• Organization’s experience, or promise of success, in providing educational & related activities to enhance the student’s academic performance

• How applicant will use qualified seniors as volunteers (if applicable)

• Required assurances

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Subgrant v. Contract

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What is a subgrant?• Federal law dictates what a subgrant is and when it is

allowed• Subgrantees (also known as subrecipients) must carry out

responsibilities of the federal program• SEA must monitor subgrantees’ compliance with all

federal program and fiscal requirements

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What is a contract?• A contract provides goods or services as needed by the

program• Contractors (vendors) are NOT responsible for carrying

out the responsibilities of the federal program• Contractors must carry out the terms of their contracts• The educational agency must have a contract

administration system to ensure contractors are complying with the terms of their contracts

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Subgrant v. ContractHow to Distinguish Between Them• A subgrantee:

• Determines who is eligible to participate in the federal program

• Measures performance against objectives of the federal program

• Is responsible for programmatic decision making• Is responsible for complying with federal program

requirements• Uses federal funds to carry out the program (not just

provide specific goods/services)

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Subgrant v. Contract (continued)How to Distinguish Between Them• A contractor:

• Provides goods/services within normal business operations

• Provides similar goods/services to different purchasers• Operates in a competitive environment• Provides goods/services ancillary to operation of the

federal program• Is NOT subject to compliance requirements of the

federal program

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Subgrant v. Contract (continued)How to Distinguish Between Them• Agency’s designation as a contract or a subgrant is not

binding• Auditors are required to use their professional judgment

to determine the true nature of a document based on the previous criteria

• Use proper terminology• Minimizes confusion• Ensures compliance with appropriate federal regulations• Helps facilitate an effective audit

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Nature of Funding

• Subgrant (e.g., pass-through funds from state administered program)• Allowable activities based on applicable statute, local plan, state rules

• Management rules:• EDGAR• OMB Circulars• State law, applicable policies and procedures

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Nature of Funding (continued)

• Contract• Allowable activities based on terms and conditions of contract

• Management rules• Terms of the contract• State contract law

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21st CCLC Program Overview

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What is the purpose?• To establish or expand community learning centers that provide students with:• Academic enrichment opportunities along with activities

designed to complement the students’ regular academic program

• Must also offer families of

eligible students literacy

and related educational

development

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What is a Community Learning Center?

• Located in elementary or secondary schools, or other similarly accessible facilities

• Provides a wide range of services to support student learning and development, including: • Tutoring Community service opportunities• Mentoring Character Education Programs• Homework help Drug & violence prevention• Academic enrichment Music, technology, arts, sports &• Counseling cultural activities

• Operates during non-school hours• Before or after school, summer, holidays, weekends, etc.• Flexibility waiver exception!

• Assists students in meeting state and local academic achievement standards in core academic subjects

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ESEA Flexibility• ED allowing SEAs to request flexibility through waivers of

10 provisions of the ESEA• ED allowing an optional 11th waiver to permit community

learning centers to use 21st CCLC funds to support expanded learning time during the school day in addition to activities during non-school hours or periods when school is not in session (i.e., before and after school or during summer recess)• ESEA Flexibility Guidance, p.2 (September 23, 2011)• http://www.ed.gov/esea/flexibility

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Eligibility Requirements• Who can participate?

• Students• Adult family members of participating students• Younger children who will become students at the

school being served

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How to Ensure Funds are Spent Properly

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Allowability under 21st CCLC• Is the proposed cost consistent with the applicable OMB

Circular?• A-21 Educational Institutions• A-87 State, Local & Indian Tribal Governments• A-122 Non-Profit Organizations• 48 CFR part 31 For-Profit Organizations

• Is the proposed cost allowable under the 21st CCLC program?

• Is the proposed cost consistent with 21st CCLC specific fiscal rules?

• Is the proposed cost consistent with EDGAR?

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OMB Circular A-87 & A-122 Federal Cost PrinciplesAll costs must be:

1.Necessary

2.Reasonable

3.Allocable

4.Legal under state and local law

5.Conform with federal laws & grant terms

6.Consistently treated

7.Generally Accepted Accounting Principles

8.Not included as match

9.Net of applicable credits

10.Adequately documented

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Watch for Allowability Differences

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OMB Circular A-87 OMB Circular A-122

43 Select Items of Costs General Government ExpensesMaintenance, Operation and Repairs

52 Select Items of Costs Housing and personal living expenses Labor Relations costs Losses on other sponsored agreements or contracts Organization costs Page charges in professional journals Participant support costs Recruiting costs Relocation costs Specialized service facilities Transportation costs Trustees

21st CCLC Program Allowability RulesLocal Use of Funds

Remedial education activities and academic enrichment learning programs

• Recreational activities• Tutoring services and mentoring programs

• chess clubs (foster critical thinking skills, persistence)• poetry contests and slams (encourage reading, writing and

speaking)• Mathematics and science education activities

• woodworking programs (encourage planning, measurement, estimation)

• cooking programs (foster application of math and science skills)• Arts and music education activities

• theatre programs (encourage reading, speaking, teamwork)

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21st CCLC Program Allowability RulesLocal Use of Funds • Programs for Limited English Proficient students that

emphasize language skills and academic achievement• Expanded library service hours• Programs that promote parental involvement and family

literacy• Book clubs (encourage reading and writing for pleasure)

• Telecommunications and technology education programs• Computer clubs or newspaper publishing (promote writing, editing

and knowledge of, and comfort with, technology)

• Programs that assist truant, suspended, or expelled students to improve their academic achievement

• Drug and violence prevention programs, counseling programs, and character education programs

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21st CCLC Program Allowability RulesPrinciples of Effectiveness• Programs or activities must be based on:

• Needs assessment of objective data• An established set of performance measures aimed at

ensuring high quality academic enrichment opportunities; and

• Scientifically based research that provides evidence that the program or activity will help students meet the state and local academic achievement standards (as appropriate)

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21st CCLC Program Fiscal Rules

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21st CCLC Fiscal Rules:Supplement Not Supplant

• 21st CCLC funds can be used to supplement, but in no case supplant, federal, state, local funds, or other non-federal funds.

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Auditors Presume Supplanting in Two Situations1. Required to be made available under other federal,

state or local laws.

2. Provided with non-federal funds in prior year

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Presumption Rebutted!

• If able to demonstrate would not

have provided services

if the federal funds were

not available• NO non-federal resources

available this year!

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What Documentation is Needed?• Fiscal or programmatic documentation to confirm that, in

the absence of Federal funds, would have eliminated staff or other services in question

• State or local legislative action• Budget histories and information

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21st Century Fiscal Rules (continued)What else can be charged to the 21st CCLC Grant?•Indirect Costs

• If you have an approved rate that can distinguish costs for each program

• Restricted Indirect Cost Rate•Pre-award costs (if have written approval)

• If charge after award notice but before the effective date, costs may be charged to the extent they would have been allowable if incurred after the award date• If, prior to receiving notice of the grant, the local

organization incurs financial obligations -- it is doing so at its own risk

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Charge a Fee?

YES, however:•Must offer a sliding scale of fees and scholarships for those who cannot afford the program•Income collected from fees must be used to fund program activities specified in the grant application

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21st CCLC Carryover• SEA has discretion

• If grantee making substantial progress:• SEA may not redistribute 21st CCLC funds that remain

unobligated if doing so would reduce the total amount of funds available to the grantee from a given fiscal year’s appropriation below $50,000

• If grantee is NOT making substantial progress:• SEA decides not to award a second or third year 21st

CCLC grant continuation• SEA may redistribute any unobligated funds, even if

doing so would reduce the funds available below $50,000

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Equitable Services to Private School Students

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Equitable Services

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• 21st CCLC participants receiving funds must provide equitable services to private schools

(§ 9501)

• Title IX, Part E Uniform Provisions Subpart 1 – Private Schools: http://www.ed.gov/policy/elsec/guid/equitableserguidance.doc

• Code of Federal Regulations (CFR), Title 34, Part 299, Subpart E -- Services to Private School Students and Teachers: http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?TITLE=34&PART=299&SECTION=6&YEAR=2000&TYPE=TEXT

Equitable ServicesPurpose is that the educational agency:•Spends an equal amount of funds to serve similar public and private school students;•Provides services and benefits that are equitable in comparison to the services and benefits provided to public school students;•Addresses the specific needs and educational programs of public and private school students on a comparable basis;•Provides, in the aggregate, approximately the same amount of services;•Provides equal opportunities to participate; and•Provides services that meet private school students’ specific needs.

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Consultation• The educational agency must provide “timely and

meaningful” consultation• Timely

• Before LEA makes any decisions• Meaningful

• Genuine opportunity for parties to

express their views• Views seriously considered

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Consultation• Consultation must include:

• How private school students’ needs will be identified• What services will be offered• How, where, and by whom the services will be provided• How the services will be assessed,

and how the results of the

assessment will be used to

improve services• The size and scope of the services• How and when the agency will make

decisions about the delivery of services

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Program Evaluation

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Program Evaluation

• Conduct a periodic evaluation of the program to assess progress towards achieving the goal of providing high quality opportunities for academic enrichment

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• Use the results of the evaluation to refine, improve and strengthen the program, and to refine the performance measures

• Notify the public of the right to review the results of the evaluation and allow such review upon request

Common Findings

• Common 21st CCLC monitoring findings:• Peer review process• Awards between 3 to 5 years• Applicants describe how the community learning center

will continue after 21st CCLC funding ends• Outreach efforts to inform eligible entities about grant

competition• SEA monitoring subgrantees• Reporting complete, accurate, and reliable data

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Questions

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Disclaimer

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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