Updates From D.C. Steven Spillan sspillan@bruman.com www.bruman.com Tuesday, May 1, 2018

Brustein & Manasevit, PLLC © 2018. All rights reserved. Agenda Congressional Updates ESSA Implementation Equitable Services Supplanting ED-Flex Major Grants Management Issues Brustein & Manasevit, PLLC © 2018. All rights reserved.

Brustein & Manasevit, PLLC © 2018. All rights reserved. What is Congress Doing? Brustein & Manasevit, PLLC © 2018. All rights reserved.

Brustein & Manasevit, PLLC © 2018. All rights reserved. Appropriations FY 2018 Omnibus Overall, increased funding for education programs across the board Additional money for school safety Rejection of Trump administration funding proposals Brustein & Manasevit, PLLC © 2018. All rights reserved.

FY 2018 Appropriations (in thousands of dollars) Program Final FY 2017 FY 2018 Omnibus Omnibus vs. FY 2017 ESEA Title I Grants $15,459,802 $15,760,000 +$300,200 ESEA Title II (Teacher Quality) $2,055,830 - ESEA Title III (English Language Acquisition) $737,400 21st Century Community Learning Centers $1,191,673 $1,212,000 +$20,000 Charter School Grants $342,172 $400,000 +$57,828 Student Support and Academic Enrichment (Title IV-A) $1,100,000 +$700,000 Promise Neighborhoods $73,254 $78,000 +$5,000 IDEA Part B State Grants $12,002,848 $12,278,000 +$275,000 IDEA Part C Grants $458,556 $470,000 +$11,000

Brustein & Manasevit, PLLC © 2018. All rights reserved. FY 2018 Omnibus School Safety: STOP School Violence Act (NEW!) $75 million - Amends an existing DOJ Grant (Secure Our Schools) Grants awarded competitively to States, local governments, or Indian tribes (50% match) Uses of funds: Development of school threat assessment protocols Training of school staff and students Anonymous reporting systems Physical security upgrades for schools Coordination with law enforcement Brustein & Manasevit, PLLC © 2018. All rights reserved.

Brustein & Manasevit, PLLC © 2018. All rights reserved. ESSA Implementation Brustein & Manasevit, PLLC © 2018. All rights reserved.

Brustein & Manasevit, PLLC © 2018. All rights reserved. Equitable Services Consultation (1117(a)(1) & 8501(c)) LEA must provide “timely and meaningful” consultation Before LEA makes any decisions Provide a genuine opportunity for parties to express their views (and seriously consider those views) The goal of all parties should be to reach an agreement Brustein & Manasevit, PLLC © 2018. All rights reserved.

Consultation Topics 1117(b)(1) & 8501(c) How eligible private school children's needs will be identified; Services that will be offered to eligible students; How, where and by whom the services will be provided; How the LEA will academically assess the services and how the LEA will use the results to improve the Title I services; The size and scope of the equitable services; The method/sources of poverty data used; (Title I only) Delivery of services Brustein & Manasevit, PLLC © 2018. All rights reserved.

Consultation Topics (cont.) How, the LEA will provide notice, an analysis, and reasons to the private school officials if LEA disagrees; Whether services will be provided directly or through third-party contractor; (NEW) Whether to provide funding through a “pool of funds” or with the proportion of funds allocated under this section; (NEW) When services will be provided (Title I only); and (NEW) Whether to consolidate and use Title I Part A funds in coordination with funds from other eligible programs that are dedicated to providing equitable services to private school students. (Title I only) Brustein & Manasevit, PLLC © 2018. All rights reserved.

Eligibility for Services – Title I 1117(a) & 1115(c) Reside in participating public school attendance area; Attend a private elementary or secondary school (regardless of location); AND Be identified as an eligible Title I student (same as targeted assistance school- Section 115(c) criteria) Brustein & Manasevit, PLLC © 2018. All rights reserved.

Preschool Eligibility? Only if the State defines “elementary schools” to include preschool. ED Guidance (2012): LEA may determine all or part of set-aside is best spent on preschool Only after consultation Brustein & Manasevit, PLLC © 2018. All rights reserved.

Affirmation of Consultation Sec. 1117(b): Written affirmation that timely and meaningful consultation occurred (NEW) LEAs must also give option of signing a written affirmation indicating that timely and meaningful consultation did not occur or that the program design is not equitable with respect to eligible private school children. Brustein & Manasevit, PLLC © 2018. All rights reserved.

Consultation: Disagreement LEA must provide (in writing) a basis for a disagreement on any subject Private school can seek LEA bypass, upon request, if it can demonstrate that the LEA has not met legal requirements. Involves State ombudsman Brustein & Manasevit, PLLC © 2018. All rights reserved.

State Ombudsman – 1117(a)(3)(B) Must monitor an enforce Title I (and IV) equitable services requirements Develops monitoring protocols Primary point of contact for all complaints After consultation – must forward agreement to ombudsman Brustein & Manasevit, PLLC © 2018. All rights reserved.

Brustein & Manasevit, PLLC © 2018. All rights reserved. Proportionate Share Formula (1117(a)(4)): LEA determines: Participating public school attendance areas; Number of children from low income families residing in each area attending schools(public and private); and Proportion of children in private schools. LEA applies proportion to total Title I allocation. Brustein & Manasevit, PLLC © 2018. All rights reserved.

Calculating Poverty Data – 1117(c)(1) To obtain the count of private school children from low-income families, LEAs may use: Data from the same source Survey, with extrapolation Proportionality Correlated measure Comparable data Brustein & Manasevit, PLLC © 2018. All rights reserved.

Brustein & Manasevit, PLLC © 2018. All rights reserved. Calculating (cont.) Same source is the preferred method BUT all options are equally available May use more than one method The choice of poverty measures is subject to timely and meaningful consultation with private school officials However, the NCLB regulations make clear that after such consultation, the LEA will have the final authority in determining the method used. 34 CFR section 200.78(a)(2)(iv). Brustein & Manasevit, PLLC © 2018. All rights reserved.

Brustein & Manasevit, PLLC © 2018. All rights reserved. Example Public School Attendance Area Public School Low-Income Children Private School Low Income Children Total Low Income Children A 500 120 620 B 300 9 309 C 200 6 206 D 350 15 365 Total 1,350 150 1,500 Proportion of Population 90% 10% Proportionate Share $900,000 $100,000 Brustein & Manasevit, PLLC © 2018. All rights reserved.

Set-aside Includes – 1117(a)(4) Administrative costs for equitable services (reasonable and necessary out of this set-aside) Parental Involvement (Proportionate amount of 1% Total Title I allocation) Using previous example (1% of $1M allocation = $1,000) Professional Development Optional, determined through consultation. All other activities for eligible private school students Brustein & Manasevit, PLLC © 2018. All rights reserved.

Distributing Funds – 1117(a)(4)(J) Two Options: Pooling: pool the funds to use for students with greatest educational need anywhere in LEA; or School-by-School: funds follow child to private school for educationally needy child in that school Brustein & Manasevit, PLLC © 2018. All rights reserved.

Brustein & Manasevit, PLLC © 2018. All rights reserved. Carryover – 1117(a)(4)(B) Equitable Services Funds shall be obligated in the fiscal year for which the funds are received by the agency. There may be extenuating circumstances in which an LEA is unable to obligate all funds within the timeframe. Under these circumstances, funds may remain available for the provision of equitable services under the respective program during the subsequent school year. Brustein & Manasevit, PLLC © 2018. All rights reserved.

Supplanting – Old Title I Standard 3 Presumptions of Supplanting Required to be made available under other federal, state, or local laws Provided with non-federal funds in prior year Provided services to Title I students and the same services were provided to non-Title I students using non-federal funds. Brustein & Manasevit, PLLC © 2018. All rights reserved.

ESSA Supplanting – 1118(b)(2)-(4) Federal funds must be used to supplement and in no case supplant state, and local resources No presumptions To demonstrate compliance, the LEA shall demonstrate that the methodology used to allocate State and local funds to each school receiving assistance under this part ensures that the school receives all the State and local funds it would otherwise receive if it were not receiving Title I funds. Brustein & Manasevit, PLLC © 2018. All rights reserved.

Brustein & Manasevit, PLLC © 2018. All rights reserved. Supplanting (cont.) No LEA shall be required to: Identify individual costs or services as supplemental; or Provide services through a particular instructional method or in a particular instructional setting to demonstrate compliance Brustein & Manasevit, PLLC © 2018. All rights reserved.

Supplanting (cont.) – 1118(b)(4) The Secretary may not prescribe the specific methodology a LEA uses to allocate State and local funds to each Title I school. Obama administration proposed rules Seemed to contradict statute Never released in final form Brustein & Manasevit, PLLC © 2018. All rights reserved.

Supplanting – District-wide costs? ED will apply a specific cost test For state-mandated requirements Same services to Title I student/schools and Non- Title I students/schools ED claims this is based on methodology test in the statute Brustein & Manasevit, PLLC © 2018. All rights reserved.

Example of District-wide costs The LEA wants to begin a reading initiative placing a reading coach in every school – paying for Title I schools with Title I funds and non-Title I funds with state funds. According to ED’s guidance, this would be a SNS violation because the state funding would not be provided to Title I schools on the same basis as its non-Title I schools (i.e. they are not getting the benefit of the state-funded reaching coaches). Brustein & Manasevit, PLLC © 2018. All rights reserved.

Brustein & Manasevit, PLLC © 2018. All rights reserved. SNS Exclusion – 1118(d) Under the statute, an LEA may exclude from a supplanting determination supplemental non- federal funds expended in any school for programs that meet the intent and purposes of Title I. Brustein & Manasevit, PLLC © 2018. All rights reserved.

Brustein & Manasevit, PLLC © 2018. All rights reserved. “Intent and Purposes” Under the existing Title I regulations, a program meets the intent and purposes of Title I if it either— Is implemented in a school with at least 40 percent poverty; Is designed to promote schoolwide reform and upgrade the entire educational operation of the school; is designed to meet the educational needs of all students in the school, particularly those who are not meeting State standards; and Uses the State’s assessment system to review the effectiveness of the program; OR Brustein & Manasevit, PLLC © 2018. All rights reserved.

Brustein & Manasevit, PLLC © 2018. All rights reserved. Intent & Purposes Serves only students who are failing, or most at risk of failing, to meet State standards; Provides supplementary services to participating students designed to improve their achievement; and Uses the State’s assessment system to review the effectiveness of the program. 34 CFR 200.79(b) Brustein & Manasevit, PLLC © 2018. All rights reserved.

Brustein & Manasevit, PLLC © 2018. All rights reserved. LEA Methodology An LEA has significant flexibility in adopting a methodology to meet the new supplement not supplant requirement. The methodology must— Allocate State and local funds to schools in the LEA; Provide each Title I school the State and local funds it would receive were it not a Title I school—i.e., be neutral regarding a school’s Title I status. An LEA must be able to demonstrate compliance— i.e., that it has implemented its methodology. Brustein & Manasevit, PLLC © 2018. All rights reserved.

Brustein & Manasevit, PLLC © 2018. All rights reserved. Timeline for SNS 1118(b)(2) – Must have methodology in place by 12/10/2017. 12/6/2017 Guidance: If you can meet deadline, do so. If not, “LEA must have a methodology in place in time for the LEA to use it when ensuring that Title I funds are supplementing, and not supplanting, other State and local funds in the 2018-2019 school year.” Brustein & Manasevit, PLLC © 2018. All rights reserved.

Brustein & Manasevit, PLLC © 2018. All rights reserved. Ed-Flex Allows Secretary of Education to delegate to States the authority to waive certain federal education requirements that may impede local efforts to reform and improve education. Designed to help districts and schools carry out educational reforms and raise the achievement levels of all. Ed-Flex is not a funding program. Rather, it is a program that delegates to states the authority to grant waivers of certain federal requirements. Brustein & Manasevit, PLLC © 2018. All rights reserved.

Brustein & Manasevit, PLLC © 2018. All rights reserved. Ed-Flex Update ESSA 9207(d): Any ED-Flex state that was in effect as of December 2015: Immediately extended for no more than 5 years IF… Secretary determines SEA performance justifies extension After 5 year period…Secretary’s discretion Brustein & Manasevit, PLLC © 2018. All rights reserved.

Major Grants Management Issues Brustein & Manasevit, PLLC © 2018. All rights reserved.

Brustein & Manasevit, PLLC © 2017. All rights reserved. Procurement 2 CFR 200.320 – Methods of Procurement Micro-Purchase Threshold $3,500 Simplified Acquisition Threshold $150,000 Brustein & Manasevit, PLLC © 2017. All rights reserved.

2018 National Defense Authorization Act Raised Thresholds Micro-Purchase: $10,000 Simplified Acquisition Threshold: $250,000 Federal Acquisition Regulation (FAR) Still has old thresholds OMB says until FAR is updated, no changes July 1, 2018 deadline for procurement Brustein & Manasevit, PLLC © 2018. All rights reserved.

Brustein & Manasevit, PLLC © 2018. All rights reserved. Time & Effort (200.430) Greater Flexibility Written policies and procedures are essential to implementing an effective time reporting system. – Draft Cost Allocation Guide Brustein & Manasevit, PLLC © 2018. All rights reserved.

Brustein & Manasevit, PLLC © 2018. All rights reserved. LEGAL 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, PLLC © 2018. All rights reserved.