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

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

Brustein & Manasevit, PLLCFall Forum 2013

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Waiver Resources

•Statute – NCLB, Section 9401

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

•Maintenance of Effort – See program statutes

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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

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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

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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

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ED Announcementon Waivers

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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

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

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“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

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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

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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

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Waivers

9. Transferability• Up to 100%, same programs

10. SIG• 1003g awards for any priority school

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Waivers

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

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New Waiver #12

•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 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

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Newest New Waiver

• Double Testing due to roll out of new assessments

• June 2013• Administer either

a) Existing Assessment orb) Field Test of New

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“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

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“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

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

• Incentives and recognitions•Dramatic systemic changes in lowest

performing schools20

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“In Exchange for…”

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

implement• Teacher/principal evaluation

systems• Student Growth = “Significant

Factor” 21

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“In Exchange for…”

4. Reduce duplication and unnecessary burden

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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

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Waivers Pending• Illinois• Wyoming• Bureau of Indian Education

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Waivers Withdrawn & Rejected

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

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Non-Waiver States

•Montana & Nebraska have not applied for a waiver

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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

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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

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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

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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

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

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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

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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

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Title I Basics (cont.)

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•Allocations are based on poverty levels

•Service is based on academic need

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Program Design

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

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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

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Who is a Title I student?

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

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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

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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

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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

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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

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Ranking and Serving Schools Under Section 1113

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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

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Eligible School Attendance Areas

•Residency Model

OR

•Enrollment Model44

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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

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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

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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

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Parental Involvement

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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

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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

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Parental Involvement Policies

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

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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

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Other LEA Set-Asides;

Maintenance of Effort,

Comparability and Supplement Not

Supplant

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

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

identified)

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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

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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?

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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”

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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

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Maintenance of Effort

•Most Directly Affected by Declining Budgets

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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

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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

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MOE: Failure under NCLB

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• 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

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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

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ED Waivers

•To State to Grant to LEAs

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

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

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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

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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

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Supplement Not Supplant

•Surprisingly Not Greatly Affected by Declining Budgets!

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Supplement Not Supplant

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

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

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Auditors’ Tests for Supplanting

•OMB Circular A-133 Compliance Supplement

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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

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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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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

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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!

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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

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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

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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

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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

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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

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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

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QUESTIONS??? 83

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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.

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