1. CEP and Waivers How New Initiatives Affect Federal Funding, Reporting, and Accountability Leigh Manasevit, Esq. lmanasevit@bruman.com Julia Martin, Esq. jmartin@bruman.com Brustein & Manasevit, PLLC Spring Forum 2015

2. CEP The Community Eligibility Program Brustein & Manasevit, PLLC2

3. Background on CEP Part of Healthy, Hunger-Free Kids Act of 2010 (Sec. 104(a)) CEP allows local educational agencies (LEAs) and individual schools to bypass household applications for free and reduced-price meals and offer free meals to all students Phased in starting in 2011; available in all States starting in 2014 Brustein & Manasevit, PLLC3

4. Who Can Participate? LEAs or schools that: Meet a minimum of 40% “identified students” determined eligible for free meals in the year prior to implementing CEP Agree to serve free breakfast AND lunch to all students Not collect free and reduced-price meal applications from households in participating schools Agree to cover any costs above federal reimbursement amounts using non-federal funds Brustein & Manasevit, PLLC4

5. Who Can Participate? An LEA may participate in the CEP for all schools OR only for some schools. 40% identified students minimum for eligibility can be determined: On a school-by-school basis For a group of schools as a group (not all must be above threshold) For entire LEA as a whole Brustein & Manasevit, PLLC5

6. Who are “identified students?” Students “certified for free meals through means other than individual household applications” Certified based on “direct certification” data from their/their families’ participation in: Supplemental Nutrition Assistance Program (SNAP) Temporary Assistance for Needy Families (TANF) Food Distribution Program on Indian Reservations (FDPIR) Head Start/Even Start Programs for homeless (on local liaison’s list), runaway, and migrant youth Non-applicants approved by local officials and identified through means other than an application Brustein & Manasevit, PLLC6

7. How to Calculate ISP Identified students percentage (ISP) = (Total # of identified students)/(number of enrolled students) “Enrolled students” = students who are enrolled in and attending schools participating in CEP, and who have access to at least one meal service daily (breakfast or lunch) Not just CEP participating students Must be at least 40% to participate in CEP May NOT round up: guidance says “a percentage of 39.98%, e.g., does NOT meet the threshold” Brustein & Manasevit, PLLC7

8. How Expenses are Reimbursed Schools/LEAs receive reimbursement at federal free rate based on “claiming percentage” Claiming percentage = ISP x multiplier Multiplier set at 1.6 through school year 2014-15 HHFKA allows USDA to set it anywhere between 1.3 and 1.6 May not exceed 100% Remaining meals (equaling up to 100%) reimbursed at federal paid reimbursement rates 8

9. How CEP Interacts with ESEA Brustein & Manasevit, PLLC9

10. CEP and ESEA National School Lunch Program data, especially free and reduced-price school meal data, is part of allocation calculations under a number of laws This includes Title I of ESEA Brustein & Manasevit, PLLC10

11. Use of CEP Data ED: the “CEP percentage of identified students and direct certification data combined with household applications in non-CEP schools are all considered NSLP data under the Richard B. Russell National School Lunch Act” However, an LEA “may use another poverty data source” for a school as long as that source is permitted under ESEA May conduct own survey though USDA guidance notes that CEP is supposed to reduce burden Brustein & Manasevit, PLLC11

12. Data Surveys LEA may conduct its own survey to collect the equivalent of NSLP data, however: Discouraged by ED/USDA ED urges LEA to “give careful consideration” to decision (would add burden) May use the results for Title I purposes so long as it is confident the survey data are accurate and used consistently May not indicate that survey is required by ED or USDA Brustein & Manasevit, PLLC12

13. Data Surveys LEA may use Title I funds to pay for a survey unless: Similar surveys already being conducted for purposes of State law (supplanting) Examine “factual circumstances” within LEA to determine whether use of Title I funds is necessary, reasonable, and allocable to Title I E.g. does SNAP data not accurately represent school/LEA? Data used by other non-Title I programs In this case, examine ways to share costs Brustein & Manasevit, PLLC13

14. Within-District Allocations For districts with both CEP and non-CEP schools, can use CEP data for within-district allocations under ESEA Sec. 1113(a)(5) Use data from the prior year (so will be applicable in second-year or later CEP schools) ED: 2003 allocation guidance still generally applies Brustein & Manasevit, PLLC14

15. CEP Data and Rank and Serve When an LEA has both CEP and non-CEP schools, must use a “common poverty metric” to rank schools and allocate funds Common poverty metric must also then be used to determine compliance with Title I comparability (see ED’s March 2015 guidance) ED suggests three methods of identifying a “common poverty metric” Brustein & Manasevit, PLLC15

16. CEP Data and Rank and Serve Suggested metric 1: multiply number of directly certified students in a school by 1.6 multiplier, then divide by the enrollment of school (provides approximation of free and reduced-price meal numbers) Suggested metric 2: rank all schools (CEP and non-CEP) based solely on percentage of students directly certified through SNAP (or other direct measure available annually for both CEP and non-CEP schools) Suggested metric 3: apply 1.6 multiplier to number of students in CEP and non-CEP schools who are directly certified (similar to metric 1, but yields a higher poverty percentage, meaning more schools may be Title I eligible) Brustein & Manasevit, PLLC 16

17. CEP Data and Rank and Serve If an LEA is implementing CEP, or if all schools are using CEP, an LEA may use number of directly certified students only If application of the 1.6 multiplier results in more than one school at 100% poverty, LEA may take into consideration the direct certification percentage at each school for purposes of funding Does not need to allocate same amount If an LEA groups CEP schools for purposes of eligibility/reimbursement, they do not need to be grouped for purposes of ranking 17

18. Data Collect Deadlines CEP reimbursement rate based on data collected April 1 of previous school year (unless LEA chooses to use count from earlier in grant cycle) If CEP and Non-CEP data are collected at different times, three options: LEA can use CEP data from April 1 for CEP schools and NSLP data for non-CEP schools so long as both occur during same year LEA can use count of NSLP applications and direct certification data accessed as of approximately April 1 For Title I purposes only, LEAs using direct certification data can access that data on approximately the same date it looks at other data for non-CEP schools LEA may not use older pre-CEP data to allocate funds 18

19. Private Schools Private schools are eligible to participate in CEP if they otherwise meet the eligibility requirements But LEA may need to find new data for determining need for equitable services, other items Brustein & Manasevit, PLLC19

20. CEP and Equitable Services LEA must identify method it will use to determine number of private school children from low-income families who reside in participating school attendance areas Methods include: Using the same poverty measure used by LEA to count public school students (*guidance says this is preferred method*) Using comparable poverty data from survey of private school families as representative sample Using comparable poverty data from another source Applying low-income percentage of each participating attendance area to the number of students (“proportionality”) Using another measure of low income correlated with that used in public schools Brustein & Manasevit, PLLC20

21. CEP and Equitable Services Not every child in a private CEP school automatically generates Title I equitable services funds ONLY students who live in a participating public school attendance area would generate those funds Brustein & Manasevit, PLLC21

22. Within-State Allocations CEP data may be used in finalizing within-State allocations if: ED’s list does not match State’s (due to, e.g., boundary changes, charter schools, new schools, etc.) State must derive estimate of Census poverty – can use CEP data if State normally uses census poverty data State combines allocation for small LEAs May use direct certification data only, OR direct certification x 1.6 multiplier Brustein & Manasevit, PLLC22

23. CEP and Title I Reporting LEAs and SEAs must disaggregate data based on subgroup of economically disadvantaged students And must offer school choice/SES ED: “for most LEAs, [school lunch] data, including CEP data, may be the best source to identify individual economically disadvantaged students” 23

24. CEP and Title I Reporting SEA can choose how to identify economically disadvantaged subgroup for purposes of Title I reporting/accountability: Include only “identified students” directly certified for poverty-based services like SES Use survey data; or Base reporting and accountability on all students in a CEP school In this case, “economically disadvantaged” subgroup is same as “all students” subgroup And all students then eligible for services based on poverty 24

25. CEP and Teacher Qualifications SEA must report on qualifications of teachers in schools in top and bottom quartiles For a CEP school, an LEA may use either: Direct certification data x 1.6 multiplier, or Direct certification data only In this case, must use counts from all schools regardless of whether they participate in CEP Does not have to be the same method the LEAs uses to allocate funds Brustein & Manasevit, PLLC25

26. More CEP Resources USDA FNS: “Community Eligibility Provision: Guidance and Q&As”(memo SP16-2015)“Community Eligibility Provision: Guidance and Q&As ED: “Guidance: The CEP and Selected Requirements under Title I, Part A” (March 2015)Guidance: The CEP and Selected Requirements under Title I, Part A FCC: Updated guidance letter on E-Rate for CEP participants (November 21, 2014)guidance letter USDA: Proposed rule on CEP (November 4, 2013)Proposed rule Brustein & Manasevit, PLLC26

27. Waivers – the New Policy Drivers Brustein & Manasevit, PLLC27

28. WAIVER STATES  42 States, the District of Columbia, Puerto Rico, and California’s CORE districts Brustein & Manasevit, PLLC 28

29. Waivers Pending Wyoming Brustein & Manasevit, PLLC 29

30. Waivers Withdrawn & Rejected Rejected: California Iowa Withdrawn: North Dakota Vermont Brustein & Manasevit, PLLC 30

31. New (Potential) Waiver Application California: Seeking limited waiver on using assessment for accountability Would use graduation rates, attendance rates and assessment participation instead Discussed by State Board but not yet formally submitted Brustein & Manasevit, PLLC31

32. “High Risk” & Revoked Waivers  “High Risk”:  California’s CORE districts, September 2014  Revoked:  Washington, April 2014  Failed to include student achievement in teacher and principal evaluations Brustein & Manasevit, PLLC 32

33. “High Risk” & Revoked Waivers  Oklahoma, August 2014  Repealed Common Core and failed to replace it with equally rigorous standards  Implemented more rigorous standards in October  Restored in November Brustein & Manasevit, PLLC33

34. Non-Waiver States Montana has not applied for a waiver Nebraska has now applied Brustein & Manasevit, PLLC 34

35. New Waiver New Hampshire 4 Districts will use pilot competency tests – not statewide assessments Brustein & Manasevit, PLLC35

36. Secretary Duncan 2014 – 2015 transition year – teacher accountability New 2015 - 2016 deadline teacher accountability – student test scores See Deborah Delisle Letter http://www2.ed.gov/policy/eseaflex/secretary- letters/cssoltr8212014.html http://www2.ed.gov/policy/eseaflex/secretary- letters/cssoltr8212014.html Brustein & Manasevit, PLLC 36

37. Teacher accountability Rep. George Miller (D-CA) Former ranking Member of the House Committee on Education and the Workforce Supporter of Common Core and accountability; One of the architects of NCLB Believes a “smart pause” is needed before tying teacher evaluations to Common Core-aligned tests Brustein & Manasevit, PLLC 37

38. GAO Study on Waivers Senator Lamar Alexander (R–TN) Representative John Kline (R–MN) August 12, 2014 – requested study on ED process Issues for states Accountability http://www.help.senate.gov/newsroom/press/release /?id=f9e1224c-21e6-4f1a-9602- ff4e361ac2dc&groups=Ranking http://www.help.senate.gov/newsroom/press/release /?id=f9e1224c-21e6-4f1a-9602- ff4e361ac2dc&groups=Ranking Brustein & Manasevit, PLLC 38

39. Waiver Renewal Guidance – November 13, 2014 Waiver renewal through 2017-2018 school year Some States can get expedited 4-year renewal through 2018-2019 Applications due March 31, 2015 January deadline for States seeking expedited renewal New guidance document: http://www2.ed.gov/policy/elsec/guid/esea- flexibility/flex-renewal/flexguidrenewal2014.doc http://www2.ed.gov/policy/elsec/guid/esea- flexibility/flex-renewal/flexguidrenewal2014.doc Brustein & Manasevit, PLLC 39

40. Renewal Guidance (cont.) Policy: New plans to identify and intervene in low- performing schools Beyond what the States have already implemented Describe, in detail, what “rigorous interventions” they are using in schools with the biggest achievement gaps Brustein & Manasevit, PLLC 40

41. Renewal Guidance (cont.) Policy: States must: Update list of priority/focus schools Ensure that evaluation systems do not allow schools with persistent achievement gaps to obtain highest ratings Resolve any current implementation or non-compliance issues, monitoring findings, high-risk status designations, and other conditions NO requirement that States show their waiver plans/interventions are working Brustein & Manasevit, PLLC 41

42. Common Core Brustein & Manasevit, PLLC42

43. Repealed Common Core Indiana (April, 2014) Implemented standards very similar to Common Core Oklahoma (June, 2014) Initially reverted to old standards, then implemented new ones in October South Carolina (May, 2014) Using Common Core for 2014-2015 Adopted new standards in March for 2015-2016 Brustein & Manasevit, PLLC 43

44. Adopted Slight Changes, But No Repeal Florida (February 2014) Brustein & Manasevit, PLLC 44

45. Reconsidering Common Core Mississippi (March, 2015) Passed legislation to review Common Core and make recommendations by December Missouri (July, 2014) Reviewing Common Core and potentially revising for 2016- 2017 North Carolina (July, 2014) Created a commission to review Common Core and make recommendations for improvement West Virginia (March, 2015) State Dept. of Education will review Common Core this summer Brustein & Manasevit, PLLC 45

46. Growing Pressure to Repeal  Louisiana  Gov. Bobby Jindal wants Common Core repealed  Jindal had suspended the use of PARCC exams, saying Superintendent John White and the State board did not properly follow contracting procedures  However, a judge lifted Jindal’s PARCC suspension  Jindal has now filed a lawsuit against ED and Sec. Duncan, claiming that offering ESEA waivers and Race to the Top went beyond Duncan’s legal authority and coerced States into adopting Common Core Brustein & Manasevit, PLLC 46

47. Growing Pressure to Repeal  New York  More than 62,000 residents signed onto an effort creating a "Stop Common Core" ballot line to allow voters to voice their concerns about the state's new education standards  The ballot line received over 50,000 votes in the November election  New Jersey  Gov. Chris Christie has created a commission to review the effectiveness of Common Core assessments, and the assessments now have less importance in teacher evaluations Brustein & Manasevit, PLLC 47

48. Growing Pressure to Repeal  Montana  A bill has been introduced in the state Senate to repeal and replace Common Core  Wisconsin  Gov. Scott Walker has called for the legislature to repeal Common Core or make it optional for districts  Utah  Gov. Gary Herbert had the state attorney general review the standards’ connections to the federal government – A.G. determined they were not illegally adopted Brustein & Manasevit, PLLC 48

49. PDK/Gallup Poll on Education 60% of Americans oppose Common Core – too restrictive for teachers http://pdkintl.org/noindex/PDK_Poll_46.pdf Brustein & Manasevit, PLLC 49

50. Common Core Growing Parent Opposition = High level of opt outs New York Colorado Florida New Mexico North Carolina Pennsylvania Brustein & Manasevit, PLLC50

51. Common Core ED Response – How did state react? Brustein & Manasevit, PLLC51

52. QUESTIONS?

53. 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, PLLC53