1. The Community Eligibility Program under ESSA
To Accountability…and Beyond!! Brustein & Manasevit Fall Forum 2016 November 30 – December 2, 2016
The Community Eligibility Program under ESSA
Julia Martin, Esq.
Brette Kaplan Wurzburg, Esq.

2. Agenda CEP in a nutshell State and LEA responsibilities
Potential impact of ESSA?

3. CEP in a Nutshell

4. CEP in a Nutshell
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.
Meal costs are federally reimbursed based on poverty data.

5. Who can Participate? LEAs or schools that:
Have an “identified student percentage” (ISP) of at least 40% as of April 1 the prior year
May be determined by group of schools to maximize ISP
Agree to serve free breakfast AND lunch to all students
Have a record of administering the programs in accordance with regulations
An LEA may participate in the CEP for all schools OR only for some schools

6. Who are “identified students?”
Students “certified for free meals through means other than individual household applications” as of April 1 (or other date with permission from FNS)
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

7. Calculating ISP (total # of identified students) ISP =
(number of enrolled students)
“Enrolled students” = all 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)
Must be at least 40% to participate in CEP
May not round up: guidance says “a percentage of 39.98% does NOT meet the threshold”

8. Reimbursement
Schools/LEAs receive reimbursement at federal free rate based on “claiming percentage”
Remaining meals (equaling up to 100%) reimbursed at “federal paid reimbursement rates”
Under regular school meal program, there are 3 rates: free, reduced-price, and paid
All vary depending on school poverty, location, and meal (breakfast vs. lunch vs. snacks) and are adjusted from year to year
Under CEP, there are 2 rates: free and paid
CEP participating LEAs/schools must use non-federal funds for all meal costs in excess of federal reimbursement

9. What is the “claiming percentage?”
ISP x (multiplier) = total % of meals reimbursed at federal free meal reimbursement rate, a.k.a. “claiming percentage”
“Claiming Percentage” represents amount a school/LEA is reimbursed for CEP meals
Round to one decimal place using standard rounding
May not exceed 100%

10. How Long is the Claiming Percentage Valid?
Percentages established in the first year may be used for four years
But schools “encouraged” to update numbers annually
During the 2nd, 3rd, and 4th years, the LEA/school may choose the higher of:
Identified student percentage from the immediately preceding school year; or
The year prior to the first year of CEP (the original ISP)

11. What is the “Claiming Percentage Multiplier?”
ISP x (multiplier) = total % of meals reimbursed at federal free meal reimbursement rate, a.k.a. “claiming percentage”
Currently set at 1.6 through school year
USDA FNS may change the multiplier
Guidance says it has no plans to do so
Must be between 1.3 and 1.6 according to HHFKA
If multiplier is changed, schools can keep multiplier for 4-year cycle, then change calculation at beginning of new cycle

12. State and LEA Responsibilities

13. State Responsibilities
Collect from LEAs by April 15th a list of potentially eligible schools
Notify eligible LEAs by April 15th of their ability to participate
Make list of eligible schools/LEAs available on State/USDA website by May 1st and provide a link to USDA

14. State Responsibilities
LEAs must notify the State no later than June 30th of the school year prior that it will implement CEP
State must confirm an LEA’s eligibility to participate in CEP by reviewing documentation submitted by the LEA to verify that it:
Meets the minimum identified student percentage
Participates in both the NSLP and SBP
Is administering the meal programs in accordance with program regulations

15. State Responsibilities
Conduct administrative review for at least one CEP school, site, or group in an LEA
Including:
Reviewing ISP documentation
Reviewing names of directly certified students
Assessing accuracy of claiming percentages

16. LEA Responsibilities
Provide to State by April 15th of each year a list of potentially eligible schools
Notify the State no later than June 30th of the school year prior if it is newly implementing, or ending its participation in, CEP

17. LEA Responsibilities
Verification = checking data on a certain number of NSLP applications to ensure they are accurate
LEAs or schools choosing to implement CEP do not have to conduct verification of NSLP applications
BUT if there are some (but not all) schools within the LEA electing CEP, the LEA must still conduct verification in non-CEP schools

18. Data Collection: ED
LEA may conduct its own survey to collect the equivalent of NSLP data, however:
Discouraged
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

19. Data Collection: USDA
Encourage LEAs to find data method that “does not mitigate CEP’s paperwork reduction benefit,” e.g. single form
Single Form must:
Contain all information required on the school meals application
Contain a disclaimer stating that, in CEP schools, receipt of meals does not depend on households returning the form
Tell households which fields must be completed for students in CEP vs. non-CEP schools
Allow LEAs to:
Distinguish between forms from students in CEP vs non-CEP households
Cost allocate expenses for form processing

20. Cost Sharing: ED 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

21. Cost Sharing: USDA
Costs for single form processing for students in CEP schools may not be paid from nonprofit school food service account
If food service staff process forms to be used to allocate other funds, must be reimbursed from other sources

22. Potential Impact of ESSA?

23. ESEA vs. ESSA vs. NCLB?
The base law for K-12 education is the Elementary and Secondary Education Act (ESEA)
Remains primary law
No Child Left Behind (NCLB) made changes to ESEA, but has been superseded
The Every Student Succeeds Act (ESSA) makes changes to the version of ESEA that was amended by NCLB
So…
Citations are to ESEA as amended by ESSA
NCLB isn’t necessarily “bad law,” but much of it was changed or removed by ESSA
When in doubt, refer to ESEA as amended!

24. ESEA vs. CEP
ESEA
CEP ED
USDA
SEA
STATE
LEA
SFA

25. 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
Including Title I of ESEA

26. Use of CEP Data: ED
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

27. ESEA: Other Data Sources
ESEA Sec. 1113(a)(5) (as amended by ESSA):
Census data
Free or reduced price lunch data
TANF
Medicaid eligibility
Composite of above
Must use the same measure for:
Identifying eligible areas
Ranking areas
Determining allocations

28. ESSA: Other Data Sources
NEW: LEA may use feeder pattern for secondary schools with majority of affected schools’ approval (Sec. 1113(a)(5)(B))
(currently in guidance, codified in ESSA)
Project middle school or high school poverty by extrapolating from population of elementary school attendance areas that feed into schools
One of several changes in ESSA designed to maximize high school participation in means-tested programs
Why? Remove stigma, improve data integrity where diluted or difficult to obtain

29. 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

30. 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 said before ESSA passage that 2003 allocation guidance still generally applies
Unclear how this will change under ESSA
General allocation rules are the same under new law

31. ESSA Allocations
Several changes under ESSA will impact State and district funding under ESEA regardless of poverty measure
Changes to Title I allocation, set-asides
Elimination of Title I “hold harmless” for SY to accommodate set-asides
Changes in Title II formula at State level, removal of “hold harmless” at LEA and State level
Any changes to allocation caused by switching data sources may be overshadowed by these changes

32. 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
ED suggests three methods of identifying a “common poverty metric”

33. 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)(faux FRL)
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)(direct cert only)
Suggested metric 3: apply 1.6 multiplier to number of students in CEP and non-CEP schools who are directly certified (similar to metric 2, but yields a higher poverty percentage, meaning more schools may be Title I eligible)(faux CEP)

34. 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

35. CEP Data and Rank and Serve
ESSA gives districts more flexibility on rank and serve
MAY include in rank-and-serve priority ranking high schools with 50% poverty or more (other schools at 75%)
Also more flexibility on schoolwide – State may waiver 40% poverty threshold
Reminder: CEP groups do NOT have to be grouped for purposes of ranking

36. CEP and Title I Reporting
LEAs and SEAs must disaggregate data based on subgroup of economically disadvantaged students for both reporting and accountability
Does not change under ESSA
Maintain State ability to set “n-size”
ED (March 2015): “For most LEAs, [school lunch] data, including CEP data, may be the best source to identify individual economically disadvantaged students”

37. CEP and Title I Reporting
SEA can choose how to identify economically disadvantaged subgroup for purposes of Title I reporting/accountability for CEP schools:
Include only “identified students” directly certified for poverty-based services like SES  this will go away following transition to ESSA
Use survey data; or
Base reporting and accountability on all students
In this case, “economically disadvantaged” subgroup is same as “all students” subgroup
Under NCLB, all students then eligible for services based on poverty  possibly carries over in schools/districts implementing new targeted interventions

38. CEP and Teacher Qualifications
SEA must report on qualifications of teachers in schools in top and bottom quartiles
ESSA eliminates HQT requirements, but not reporting
ED (2015): 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

39. Questions to Ask About Data in Light of ESSA
What data source are we using to measure poverty?
If we have CEP schools, how are we making the data sources comparable (which suggested metric)?
Is our data comparable between elementary and secondary schools?
Are we comfortable using that data source for ALL purposes?
Are we changing schoolwide/rank and serve thresholds? Does that impact CEP or vice versa?
Are we upgrading data systems to meet other new ESSA requirements (e.g. school site expenditure data)? Should we make other changes to collect more/better poverty data?

40. Private Schools
Private schools are eligible to participate in CEP if they otherwise meet the eligibility requirements
But LEAs may need to find new data for determining need for equitable services, other items
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

41. CEP and Equitable Services
Methods include:
Using the same poverty measure used by LEA to count public school students (*ED 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

42. ESSA and Equitable Services
State must appoint ombudsman to hear school complaints
Likely to also receive complaints about school meals (even though CEP not part of ESSA)
Private school may complain in writing if it believes LEA is not providing services/has not conducted appropriate consultation
State has the option to bypass LEA to provide services directly or through a contractor
Applicable to child nutrition?

43. Other Potential Effects of ESSA
Use of CEP in accountability systems?
States must develop system that rates schools on metrics including
At least one “valid, reliable, comparable, and Statewide” indicator of school quality (law suggests rating of school climate and safety)
Other factors as determined by the State
Low-performing districts/schools must craft interventions
Will CEP or school meal quality/participation factor in, either as school quality measure or solution?

44. When will we have answers?
Healthy, Hunger-Free Kids Act passed 2010
ED published guidance in 2015
ESSA signed into law December 2015
ED said it will publish select regulations and guidance in 2016
Advice on CEP: ????
(USDA unlikely to publish new guidance/ regulations since its programs not affected)

45. Resources
USDA FNS: “Community Eligibility Provision: Guidance and Q&As”(memo SP ) (Updated September )
ED: “Guidance: The CEP and Selected Requirements under Title I, Part A” (March 2015)
USDA: Proposed rule on CEP (November 4, 2013)
USDA Community Eligibility Resource Center: eligibility-provision-resource-center

46. Questions?

47. 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.