1. WHAT ESEA TITLE I REQUIREMENTS REMAIN IN LIGHT OF THE WAIVER? 1 Leigh M. Manasevit, Esq. lmanasevit@bruman.com Brustein & Manasevit, PLLC Fall Forum 2013 Brustein & Manasevit, PLLC

2. Waiver Resources Statute – NCLB, Section 9401 Guidance – Title I, Part A – July 2009 Maintenance of Effort – See program statutes 2 Brustein & Manasevit, PLLC

3. 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 Brustein & Manasevit, PLLC

4. 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 Brustein & Manasevit, PLLC

5. June 28, 2011 Congressional Research Service (CRS) Report on Secretary of Education’s Waiver Authority 1.ED has the authority to waive accountability provisions of Title I, Part A 2.It is unclear if the Secretary can condition a waiver on other action(s) not required by law 5 Brustein & Manasevit, PLLC

6. ED Announcement on Waivers 6 Brustein & Manasevit, PLLC

7. Waivers ED makes the announcement September 23, 2011 Letter to Chiefs NCLB became a barrier to reform Opportunity to request flexibility State LEA Schools http://www2.ed.gov/policy/gen/guid/se cletter/110923.html 7 Brustein & Manasevit, PLLC

8. Letter Flexibility in exchange for rigorous and comprehensive State plans Improve educational outcomes Close achievement gaps Increase equity Improve instruction 8 Brustein & Manasevit, PLLC

9. “ESEA Flexibility” September 23, 2011 10 provisions subject to waiver 1.2013-2014 timeline – Develop new ambitious AMO’s 2.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 Brustein & Manasevit, PLLC

10. Waivers 5.Schoolwide Operate as schoolwide regardless of 40% poverty threshold if SEA identified as a priority or focus school with interventions consistent with turnaround principles 6.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 Brustein & Manasevit, PLLC

11. Waivers 8.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 Brustein & Manasevit, PLLC

12. Waivers 9.Transferability Up to 100%, same programs 10. SIG 1003g awards for any priority school 12 Brustein & Manasevit, PLLC

13. Waivers Optional #11 21 st Century Community Learning Centers support expanded learning time during school day 13 Brustein & Manasevit, PLLC

14. New Waiver #12 No AYP determination for LEAs or Schools 14 Brustein & Manasevit, PLLC

15. New Waiver #13 LEA may serve Title I eligible priority high school with graduation rate under 60% without regard for rank and serve??? 15 Brustein & Manasevit, PLLC

16. 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/ese aflex/faqaddendum.doc http://www2.ed.gov/policy/ese aflex/faqaddendum.doc 16 Brustein & Manasevit, PLLC

17. Newest New Waiver Double Testing due to roll out of new assessments June 2013 Administer either a)Existing Assessment or b)Field Test of New Brustein & Manasevit, PLLC 17

18. “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 Brustein & Manasevit, PLLC

19. “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 Brustein & Manasevit, PLLC

20. School Performance over time New AMOs (ambitious) State LEAs Schools Subgroups Incentives and recognitions Dramatic systemic changes in lowest performing schools 20 Brustein & Manasevit, PLLC

21. “In Exchange for…” 3.Effective Instruction/Leadership Commit to develop/adopt pilot and implement Teacher/principal evaluation systems Student Growth = “Significant Factor” 21 Brustein & Manasevit, PLLC

22. “In Exchange for…” 4.Reduce duplication and unnecessary burden 22 Brustein & Manasevit, PLLC

23. 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 Brustein & Manasevit, PLLC

24. Waivers Pending Illinois Wyoming Bureau of Indian Education 24 Brustein & Manasevit, PLLC

25. Waivers Withdrawn & Rejected Rejected: California Iowa Withdrawn: North Dakota Vermont 25 Brustein & Manasevit, PLLC

26. Non-Waiver States Montana & Nebraska have not applied for a waiver 26 Brustein & Manasevit, PLLC

27. Center for American Progress Report 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 funds http://www.americanprogress.org/wp- content/uploads/issues/2012/07/pdf/nochildwaivers_intro. pdf 27 Brustein & Manasevit, PLLC

28. 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 Brustein & Manasevit, PLLC

29. 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 Brustein & Manasevit, PLLC

30. 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/docume nts/monitoring-part-a-protocol-acc.doc http://www.ed.gov/esea/flexibility/docume nts/monitoring-part-a-protocol-acc.doc 30 Brustein & Manasevit, PLLC

31. BASIC ESEA TITLE I, PART A REQUIREMENTS NOT SUBJECT TO WAIVER 31 Brustein & Manasevit, PLLC

32. 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 Brustein & Manasevit, PLLC

33. 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 Brustein & Manasevit, PLLC

34. Title I Basics (cont.) 34 Allocations are based on poverty levels Service is based on academic need Brustein & Manasevit, PLLC

35. Program Design Two models of Title I, Part A program: 1.Targeted Assistance 2.Schoolwide 35 Brustein & Manasevit, PLLC

36. 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 Brustein & Manasevit, PLLC

37. Who is a Title I student?  Students identified as failing or at risk of failing State standards: NOT based on poverty! 37 Brustein & Manasevit, PLLC

38. 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 Brustein & Manasevit, PLLC

39. 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 Brustein & Manasevit, PLLC

40. 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 Brustein & Manasevit, PLLC

41. 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 Brustein & Manasevit, PLLC

42. Ranking and Serving Schools Under Section 1113 42 Brustein & Manasevit, PLLC

43. 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 Brustein & Manasevit, PLLC

44. Eligible School Attendance Areas Residency Model OR Enrollment Model 44 Brustein & Manasevit, PLLC

45. 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 Brustein & Manasevit, PLLC

46. 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 Brustein & Manasevit, PLLC

47. Exception: Rank & Serve “Skip” school, if: 1.Comparability met 2.Receiving supplemental State/local funds used in Title I-like program 3.Supp. State/local funds meet or exceed amount would be received under Title I Still count and serve nonpublic in area 47 Brustein & Manasevit, PLLC

48. Parental Involvement 48 Brustein & Manasevit, PLLC

49. 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 Brustein & Manasevit, PLLC

50. 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 Brustein & Manasevit, PLLC

51. Parental Involvement Policies LEA parental involvement policy School parental involvement policy School/Parent compact 51 Brustein & Manasevit, PLLC

52. 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 Brustein & Manasevit, PLLC

53. 53 Other LEA Set-Asides; Maintenance of Effort, Comparability and Supplement Not Supplant Brustein & Manasevit, PLLC

54. LEA Reservations of Title I Funds 20% Choice transportation & SES 5% Teacher & paraprofessional qualifications???? 1% Parental involvement 10% Professional development (if LEA identified) 54 Brustein & Manasevit, PLLC

55. 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 Brustein & Manasevit, PLLC

56. 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 Brustein & Manasevit, PLLC

57. 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 Brustein & Manasevit, PLLC

58. 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 Brustein & Manasevit, PLLC

59. Maintenance of Effort Most Directly Affected by Declining Budgets 59 Brustein & Manasevit, PLLC

60. 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 Brustein & Manasevit, PLLC

61. 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 Brustein & Manasevit, PLLC

62. 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 Brustein & Manasevit, PLLC

63. 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 Brustein & Manasevit, PLLC

64. ED Waivers To State to Grant to LEAs 64 Brustein & Manasevit, PLLC

65. Comparability How is this calculated and why does it matter? Legal Authority: Title I Statute: §1120A(c) 65 Brustein & Manasevit, PLLC

66. 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 Brustein & Manasevit, PLLC

67. 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 Brustein & Manasevit, PLLC

68. Supplement Not Supplant Surprisingly Not Greatly Affected by Declining Budgets! 68 Brustein & Manasevit, PLLC

69. Supplement Not Supplant Federal funds must be used to supplement, and in no case supplant, State and local resources 69 Brustein & Manasevit, PLLC

70. “What would have happened in the absence of the Federal funds???” 70 Brustein & Manasevit, PLLC

71. Auditors’ Tests for Supplanting OMB Circular A-133 Compliance Supplement 71 Brustein & Manasevit, PLLC

72. 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 Brustein & Manasevit, PLLC

73. School Choice and Supplemental Educational Services (SES) 73 Brustein & Manasevit, PLLC

74. 74 Equitable Services for Private School Students Brustein & Manasevit, PLLC

75. 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 Brustein & Manasevit, PLLC

76. 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 services 4.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 services 6.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 Brustein & Manasevit, PLLC

77. Consultation must include: (cont.) Discussion about use of 3 rd Party Providers Must consider private school officials’ views – but LEA decides whether it will use 3 rd 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 decision 77 Brustein & Manasevit, PLLC

78. 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 Guidance 78 Brustein & Manasevit, PLLC

79. Deriving Instructional Allocation General Formula: Based on number of: 1.Private school students 2.From low-income families 3.Who reside in Title I-participating public school attendance areas 79 Brustein & Manasevit, PLLC

80. 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 Brustein & Manasevit, PLLC

81. 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 costs 81 Brustein & Manasevit, PLLC

82. 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 Brustein & Manasevit, PLLC

83. QUESTIONS??? 83 Brustein & Manasevit, PLLC

84. 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. 84 Brustein & Manasevit, PLLC