1. WHAT TITLE I REQUIREMENTS REMAIN IN THE LAND OF THE WAIVER INITIATIVE? Brustein & Manasevit, PLLC 1 Leigh M. Manasevit, Esq. Fall Forum 2012 www.bruman.com lmanasevit@bruman.com

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

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 $ Comparability Supplement not supplant Equitable services to private school students Parent involvement Brustein & Manasevit, PLLC 3

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 Brustein & Manasevit, PLLC 4

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

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

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/s ecletter/110923.html Brustein & Manasevit, PLLC 7

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

9. ESEA Flexibility September 23, 2011 10 provisions subject to waiver 1.2013-2014 timeline – develop new ambitious AMOs 1.School improvement consequences: LEA not required to take currently required improvement actions in Title I Schools 2.LEA improvement identification: not required to identify for improvement LEA that fails 2 consecutive years 3.Rural LEAs Small Rural School Achievement or Rural and Low Income program Flexibility regardless of AYP status Brustein & Manasevit, PLLC 9

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 Brustein & Manasevit, PLLC 10

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 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 Brustein & Manasevit, PLLC 11

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

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

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

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

16. New Waiver Not Numbered 11-12 assessment use 10-11 AMOs For waiver intent Brustein & Manasevit, PLLC 16

17. 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 Brustein & Manasevit, PLLC 17

18. 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 Brustein & Manasevit, PLLC 18

19. School Performance over time New AMOs (ambitious) State LEAs Schools Subgroups Incentives recognitions Dramatic systemic changes in lowest performing schools Brustein & Manasevit, PLLC 19

20. In Exchange for… 3.Effective Instruction/Leadership Commit to develop/adopt pilot and implement Teacher/principal evaluation systems Student Growth = Significant Factor Brustein & Manasevit, PLLC 20

21. In Exchange for… 4.Reduce duplication and unnecessary burden Brustein & Manasevit, PLLC 21

22. Waivers Granted – Round 1 1.Colorado 2.Florida 3.Georgia 4.Indiana 5.Kentucky 6.Massachusetts 7.Minnesota 8.New Jersey 9.Oklahoma 10.Tennessee 11.New Mexico Granted DeniedGranted Brustein & Manasevit, PLLC 22

23. Round 2 Arkansas Arizona Connecticut Delaware Iowa Idaho Illinois Kansas Louisiana Maryland Michigan Missouri Mississippi North Carolina Nevada New York Ohio Oregon Rhode Island South Carolina South Dakota Utah Vermont Virginia Washington Wisconsin Washington, DC Brustein & Manasevit, PLLC 23 /WITHDREW

24. Round 3 - Applied Alabama Alaska Hawaii Maine New Hampshire North Dakota Puerto Rico West Virginia Bureau of Indian Education (45 State Approved or Requested) Brustein & Manasevit, PLLC 24

25. 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.p df Brustein & Manasevit, PLLC 25

26. ED to Monitor Waivers SY 12-13 Supplement Title I Monitoring Solicited Comment on Oversight http://www.gpo.gov/fdsys/pkg/FR-2012-08-30/pdf/2012-21471.pdf Monitoring Protocol (Part 1 of 3) http://www.ed.gov/esea/flexibility Brustein & Manasevit, PLLC 26

27. Waivers, Vouchers, A President Romney? Martin West, K-12 Advisor - Not Favored Brustein & Manasevit, PLLC 27

28. BASIC ESEA TITLE I, PART A REQUIREMENTS NOT SUBJECT TO WAIVER Brustein & Manasevit, PLLC 28

29. 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 Brustein & Manasevit, PLLC 29

30. 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 Brustein & Manasevit, PLLC 30

31. Title I Basics (cont.) Brustein & Manasevit, PLLC 31 Allocations are based on poverty levels Service is based on academic need

32. Program Design Two models of Title I, Part A program: 1.Targeted Assistance 2.Schoolwide Brustein & Manasevit, PLLC 32

33. 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 Brustein & Manasevit, PLLC 33

34. Who is a Title I student? Students identified as failing or at risk of failing State standards: NOT based on poverty! Brustein & Manasevit, PLLC 34

35. Eligible Title I students Students 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. Brustein & Manasevit, PLLC 35

36. 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 Brustein & Manasevit, PLLC 36

37. 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. Brustein & Manasevit, PLLC 37

38. 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 Brustein & Manasevit, PLLC 38

39. Ranking and Serving Schools under Section 1113 Brustein & Manasevit, PLLC 39

40. 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 Brustein & Manasevit, PLLC 40

41. Eligible School Attendance Areas Residency Model OR Enrollment Model Brustein & Manasevit, PLLC 41

42. 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! Brustein & Manasevit, PLLC 42

43. 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 Brustein & Manasevit, PLLC 43

44. 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 Brustein & Manasevit, PLLC 44

45. Parental Involvement Brustein & Manasevit, PLLC 45

46. 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 Brustein & Manasevit, PLLC 46

47. 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 Brustein & Manasevit, PLLC 47

48. Parental Involvement Policies LEA parental involvement policy School parental involvement policy School/Parent compact Brustein & Manasevit, PLLC 48

49. Parental Involvement 1% of LEAs 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 Brustein & Manasevit, PLLC 49

50. Brustein & Manasevit, PLLC 50 Other LEA Set-Asides; Maintenance of Effort, Comparability and Supplement Not Supplant

51. LEA Reservations of Title I Funds 20% Choice transportation & SES 5% Teacher & paraprofessional qualifications???? 1% Parental involvement 10% Professional development (if LEA identified) Brustein & Manasevit, PLLC 51

52. 1% Parent 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 Brustein & Manasevit, PLLC 52

53. 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? Brustein & Manasevit, PLLC 53

54. 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 IDd schools (< 5%) Professional development Other authorized activities Brustein & Manasevit, PLLC 54

55. 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 Brustein & Manasevit, PLLC 55

56. Maintenance of Effort Most Directly Affected by Declining Budgets Brustein & Manasevit, PLLC 56

57. 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 Brustein & Manasevit, PLLC 57

58. 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 Brustein & Manasevit, PLLC 58

59. MOE: Failure under NCLB Brustein & Manasevit, PLLC 59 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

60. MOE: Waiver USDE Secretary may waive if: Exceptional or uncontrollable circumstances such as natural disaster OR Precipitous decline in financial resources of the LEA Brustein & Manasevit, PLLC 60

61. ED Waivers To State to Grant to LEAs Brustein & Manasevit, PLLC 61

62. Comparability How is this calculated and why does it matter? Legal Authority: Title I Statute: §1120A(c) Brustein & Manasevit, PLLC 62

63. 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. Brustein & Manasevit, PLLC 63

64. 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 Brustein & Manasevit, PLLC 64

65. Supplement Not Supplant Surprisingly Not Greatly Affected by Declining Budgets! Brustein & Manasevit, PLLC 65

66. Supplement not Supplant Federal funds must be used to supplement and in no case supplant state and local resources Brustein & Manasevit, PLLC 66

67. What would have happened in the absence of the federal funds?? Brustein & Manasevit, PLLC 67

68. Auditors Tests for Supplanting OMB Circular A-133 Compliance Supplement Brustein & Manasevit, PLLC 68

69. 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 Some service to non-Title I students with state/local funds Brustein & Manasevit, PLLC 69

70. School Choice and Supplement Educational Services (SES) Brustein & Manasevit, PLLC 70

71. Brustein & Manasevit, PLLC 71 Equitable Services for Private School Students

72. 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 Brustein & Manasevit, PLLC 72

73. 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! Brustein & Manasevit, PLLC 73

74. 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 Brustein & Manasevit, PLLC 74

75. 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 LEAs files Example in Guidance Brustein & Manasevit, PLLC 75

76. 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 Brustein & Manasevit, PLLC 76

77. 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 Brustein & Manasevit, PLLC 77

78. 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 Brustein & Manasevit, PLLC 78

79. Agostini: Safeguards Services may be on-site at private school, with safeguards Guidance: Need not remove religious objects from room Must be safeguards in place to ensure NOT promoting religion. Neutral, secular and non-ideological Brustein & Manasevit, PLLC 79

80. QUESTIONS??? Brustein & Manasevit, PLLC 80

81. 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. Brustein & Manasevit, PLLC 81