1. Steven Spillan, Esq. sspillan@bruman.com Brustein & Manasevit, PLLC Fall Forum 2014

2. Agenda Current Rules Omni-Circular Rules Possible Pushback by Agencies Brustein & Manasevit, PLLC2

3. OMB A-87: Attachment B, Section 27, 42, and 43 OMB A-21: Attachment A, Section J, Items 32, 51, and 53 Brustein & Manasevit, PLLC3

4. Current Law: A-87 / A-21 Costs of meals and travel are allowable if primary purpose of meeting / conference is dissemination of technical information The cost of training provided for employee development is allowable Brustein & Manasevit, PLLC4

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6. Training and Education (200.472) The cost of training and education provided for employee development is allowable Expanded definition to include “education.” OIG concerned the category is too “open ended” Brustein & Manasevit, PLLC6

7. Conferences (200.432) Conference defined as: A meeting, retreat, seminar, symposium, workshop or event Whose primary purposes is the dissemination of technical information beyond the non-federal entity and Is necessary and reasonable for successful performance under the Federal award Brustein & Manasevit, PLLC7

8. Conferences (cont.) Allowable conference costs may include: Rental of facilities Speakers’ fees Costs of meals and refreshments* Local transportation Other items incidental to such conferences unless restricted by terms of federal award Brustein & Manasevit, PLLC8

9. Conferences – Dependent Care Costs of identifying, but not providing, locally available dependent-care resources are allowable. Part of OMB’s new “family-friendly” policies Meant to better enable employees of non-federal entities with dependent care responsibilities to progress in their careers Essential for advancing the careers of women in STEM fields Brustein & Manasevit, PLLC9

10. Conferences (cont.) Conference hosts/sponsors must exercise discretion and judgment in ensuring that conference costs are appropriate, necessary and managed in a manner that minimizes costs to the federal award. Brustein & Manasevit, PLLC10

11. Travel Costs (200.474) Defined: Expenses for transportation, lodging, subsistence, and related items incurred by employees who are on travel for official business. May be charged: On a per diem or mileage basis; Actual Costs; or, A combination of the two—provided the method used is applied to an entire trip and not to selected days of the trip. Brustein & Manasevit, PLLC11

12. Travel (cont.) To charge to Federal award, must show: Participation of the individual is necessary to the federal award; AND The costs are reasonable and consistent with the entity’s written travel policy (new requirement). In the absence of established policy, the rates established under 5 U.S.C. 5701-11, by GSA, or by the President must apply to travel under Federal awards Brustein & Manasevit, PLLC12

13. Travel (cont.) May only pay for the “basic least expensive unrestricted accommodations class offered by commercial airlines”, UNLESS: Requires circuitous routing; Requires travel during unreasonable hours; Excessively prolongs travel; Results in additional costs that would offset the transportation savings; or, Not reasonably adequate for traveler’s medical needs. Must justify and document these conditions on a case- by-case basis in order for the use of first-class or business-class airfare to be allowable. Brustein & Manasevit, PLLC13

14. Travel – Family Friendly Dependent care costs above and beyond regular dependent care that directly result from travel to conferences are allowable provided the costs are: Direct result of the individual’s travel for the Federal award; Consistent with entity’s documented travel policy; Temporary during the travel period. Travel costs for dependents are unallowable, except for travel of duration of six months or more with prior approval. Brustein & Manasevit, PLLC14

15. Brustein & Manasevit, PLLC15

16. OIG Concerns – Summer 2014 OIGs have found conferences held by recipients where per-person cost of daily catering was between 189% and 400% of applicable location’s federal per diem for meals and incidental expenses Brustein & Manasevit, PLLC16

17. OIG Concerns (cont.) OMB should limit meal costs to federal per diem rates and document a cost comparison of at least three sites to determine most cost-advantageous location Brustein & Manasevit, PLLC17

18. ESEA Title II, Part A FAQ ‘Guidance’ Issued May 2013 via e-mail Available on-line: http://www2.ed.gov/policy/fund/guid/gposbul/faqs- grantee-conferences-may-2013.doc http://www2.ed.gov/policy/fund/guid/gposbul/faqs- grantee-conferences-may-2013.doc ED Effort to take “greater care in enforcing and monitoring” these costs Title II, Part A office is responsible for the largest amount of grant funds related to professional development Very high burden of proof to show that paying for food is necessary Brustein & Manasevit, PLLC18

19. Title II, Part A ‘Guidance’ (cont.) Q&A #3: Consider whether hosting a meeting or conference is the most effective or efficient way to achieve the desired result. Q&A #6: When hosting a meeting, structure the agenda so there is time for participants to purchase their own food, beverages, or snacks. Consider a location in which participants have easy access to food and beverages. Brustein & Manasevit, PLLC19

20. Title II, Part A ‘Guidance’ (cont.) Q&A #7: In virtually all cases, using grant funds to pay for food and beverages for receptions and “networking” sessions is not justified Q&As #8, 9: Beware of ‘free’ food and beverages embedded in a contract for meeting space; ask hotel to ‘back out’ such costs. Q&A #13: May offer meeting participants the option of paying for food and beverages and arrange for items to be available at the meeting. Brustein & Manasevit, PLLC20

21. Weight of this Guidance? Does not meet standard of “Good Guidance” (OMB Bulletin No. 07-02) SASA Deputy Director clarified applicability of this guidance in June 2013: This new guidance is generally intended to apply to professional meetings, including those that you may have with LEA staff, and not to school-based events such as a Title I parent meeting. As a result, as long as there is a connection to a programmatic purpose and the cost is reasonable, an LEA may continue to provide food at Title I parent meetings. Brustein & Manasevit, PLLC21

22. ED Office of General Counsel National Association of State Title I Directors, February 2014 Very high burden of proof to show that paying for food and beverages with federal funds is necessary to meet the goals and objectives of a federal grant. Structure agenda to allow participants time to purchase their own food Consider a location with easy access to food Brustein & Manasevit, PLLC22

23. ED OGC (cont.) “Working Lunch” may be allowable. Factors to consider: 1. Is a working lunch necessary? 2. Is the portion of the agenda to be carried out during lunch substantive and integral to the overall purpose of the meeting? 3. Is there a genuine time constraint that requires the working lunch? 4. If a working lunch is necessary, is the cost of the working lunch reasonable? 5. Has the SEA or LEA carefully documented that a working lunch is both reasonable and necessary? Brustein & Manasevit, PLLC23

24. DISCLAIMER This presentation is intended solely to provide general information and does not constitute legal advice or a legal service. This presentation does not create a client-lawyer relationship with Brustein & Manasevit, PLLC and, therefore, carries none of the protections under the D.C. Rules of Professional Conduct. Attendance at this presentation, a later review of any printed or electronic materials, or any follow-up questions or communications arising out of this presentation with any attorney at Brustein & Manasevit, PLLC 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. Brustein & Manasevit, PLLC24