1. Kristen Tosh Cowan, Esq. Brustein & Manasevit, PLLC ktoshcowan@bruman.com Spring Forum 2011 Equitable Services to Private School Students under Title I Part A

2. Equitable Services: #1 most common finding of noncompliance in USDE Title I program monitoring

3. Commonly Cited Problems 1. Inadequate Public Control and Oversight of Funds 2. Failure to Distribute Set-Asides 3. Inadequate evaluation of program 4. Inadequate consultation 5. Third Party Contracts and Invoices 3

4. Law and Resources Statute: Sections 1120 Statute: Sections 1120 Title I Regulations Title I Regulations 34 CFR Part 200 34 CFR Part 200 Non-Regulatory Guidance Non-Regulatory Guidance Title I: October 17, 2003Title I: October 17, 2003 www2.ed.gov/programs/titleiparta/psguidance.doc 4

5. Private Schools Ensuring Equitable Services to Private School Children: A Title I Resource Tool Kit Checklists Checklists Forms Forms Worksheets Worksheets Website: http://www2.ed.gov/programs/titleiparta/ ps/titleitoolkit.pdf 5

6. ESEA Programs with Equitable Participation Requirements Improving Basic Programs Operated by LEAs (Title I, Part A)* (Includes Title I Part A ARRA) Improving Basic Programs Operated by LEAs (Title I, Part A)* (Includes Title I Part A ARRA) Reading First (Title I, Part B, Subpart 1) Reading First (Title I, Part B, Subpart 1) Even Start Family Literacy (Title I, Part B, Subpart 3) Even Start Family Literacy (Title I, Part B, Subpart 3) Migratory Education Program (Title I, Part C) Migratory Education Program (Title I, Part C) Teacher and Principal Training and Recruiting Fund (Title II, Part A) Teacher and Principal Training and Recruiting Fund (Title II, Part A) Mathematics and Science Partnerships (Title II, Part B) Mathematics and Science Partnerships (Title II, Part B) Enhancing Education Through Technology (Title II, Part D) Enhancing Education Through Technology (Title II, Part D) English Language Acquisition, Language Enhancement, and Academic Achievement (Title III, Part A) English Language Acquisition, Language Enhancement, and Academic Achievement (Title III, Part A) Safe and Drug-Free Schools and Communities (Title IV, Part A) Safe and Drug-Free Schools and Communities (Title IV, Part A) 21 st Century Community Learning Centers (Title IV, Part B) 21 st Century Community Learning Centers (Title IV, Part B) Innovative Programs (Title V, Part A)* Innovative Programs (Title V, Part A)* Gifted and Talented Students (Title V, Part D, Subpart 6)* Gifted and Talented Students (Title V, Part D, Subpart 6)* *Require equitable participation, contain their own separate equitable participation provisions, and are not covered by Title IX *Require equitable participation, contain their own separate equitable participation provisions, and are not covered by Title IX 6

7. General Rule -Title I LEA must provide eligible private school students with special educational services or other Title I benefits LEA must provide eligible private school students with special educational services or other Title I benefits Parents and teachers of private school students shall participate, on an equitable basis, in parental involvement and professional development Parents and teachers of private school students shall participate, on an equitable basis, in parental involvement and professional development 7

8. Consultation

9. Consultation: Must be “Timely and Meaningful” “Timely” “Timely” Before the LEA makes any decisionsBefore the LEA makes any decisions “Meaningful” “Meaningful” Genuine opportunity for parties to express their viewsGenuine opportunity for parties to express their views View seriously consideredView seriously considered Not unilateral offer without opportunity for discussionNot unilateral offer without opportunity for discussion LEA has final decision LEA has final decision 9

10. Consultation Must Include: How students’ needs will be identified How students’ needs will be identified What services will be offered What services will be offered How, where and by whom the services will be provided How, where and by whom the services will be provided How the services will be assessed, and how assessment results will be used to improve services How the services will be assessed, and how assessment results will be used to improve services The size and scope of services The size and scope of services The amount of funds available for services The amount of funds available for services How and when the LEA will make decisions about the delivery of services The method or source of poverty data The method or source of poverty data The services provided to teachers and families The services provided to teachers and families 10

11. Consultation: Third Party Providers Thorough consideration of private school officials’ views Thorough consideration of private school officials’ views If LEA disagrees with private school officials about the provision of services, LEA must provide written analysis of why officials’ opinion rejected If LEA disagrees with private school officials about the provision of services, LEA must provide written analysis of why officials’ opinion rejected Written record for appeal Written record for appeal 11

12. Consultation: Written Affirmation LEAs must obtain written affirmation from private school officials stating timely and meaningful consultation occurred. 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 Signed by officials from each school with participating children, or representative Send to SEA and maintain in LEA’s files Send to SEA and maintain in LEA’s files Example in Guidance Example in Guidance 12

13. Consultation: Written Affirmation and Timing Sign Affirmation: When planning and design of next school year’s program completed Sign Affirmation: When planning and design of next school year’s program completed On-going: Consultation continues throughout implementation and assessment of services On-going: Consultation continues throughout implementation and assessment of services 13

14. Consultation: Give application? Guidance (A-11): LEA must provide copy of Title I application, if private school officials request it LEA must provide copy of Title I application, if private school officials request it 14

15. Consultation: Extent of Attempts? Annually contact private school officials Annually contact private school officials Invite to meeting – explanation and questions Invite to meeting – explanation and questions Not adequate to merely send letter explaining intent of Title I Not adequate to merely send letter explaining intent of Title I 15

16. Documenting Consultation LEA must retain documentation that shows: LEA must retain documentation that shows: Informed private school officials of available federal programsInformed private school officials of available federal programs Engaged in timely and meaningful consultationEngaged in timely and meaningful consultation Identified private schools’ needsIdentified private schools’ needs Allocated sufficient funds for private schoolsAllocated sufficient funds for private schools Provided equitable services and benefitsProvided equitable services and benefits Evaluated programs and services for effectivenessEvaluated programs and services for effectiveness Adequately addressed problems & complaintsAdequately addressed problems & complaints 16

17. Deriving the Allocation TITLE I, PART A

18. Equitability: Deriving Allocation General Formula: Based on number of: Based on number of: 1.Private school students 2.From low-income families 3.Who reside in Title I-participating public school attendance areas 18

19. Calculating Allocation for Instruction: 1. Rank public school areas: highest to lowest 2. Identify participating areas 3. Calculate PPA for each area 4. Calculate allocation amount for each area must include nonpublic low-income # must include nonpublic low-income # 5. Reserve nonpublic amount PPA x # of nonpublic low-income in each area PPA x # of nonpublic low-income in each area 19

20. Calculating Allocation: “Off the Top” LEA takes “off the top” reservations LEA takes “off the top” reservations Administration for public and privateAdministration for public and private Capital expenses Capital expenses Admin from third-party providers Admin from third-party providers 20% choice-supplemental services20% choice-supplemental services 1% parental involvement1% parental involvement Discretionary:Discretionary: Professional development Professional development Summer school Summer school Preschool Preschool 20

21. Reservation for Districtwide Instruction If LEA reserves for “districtwide instructional programs for public elementary and secondary” If LEA reserves for “districtwide instructional programs for public elementary and secondary” Then proportional amount goes to nonpublic Then proportional amount goes to nonpublic 34 CFR sect 200.64(a)(2)(i)(A) 34 CFR sect 200.64(a)(2)(i)(A) 21

22. Example LEA reserves $500,000 for districtwide reading initiative LEA reserves $500,000 for districtwide reading initiative Of all low-income in LEA residing in participating attendance areas, 5% are private Of all low-income in LEA residing in participating attendance areas, 5% are private 5% of $500,000 to private allocation 5% of $500,000 to private allocation 22

23. Applies to: Summer school Summer school After school programs After school programs Reading coaches Reading coaches DOES NOT APPLY TO: Supplemental educational services (20%) Supplemental educational services (20%) Preschool Preschool 23

24. Reservation for Teachers and Families If LEA reserves funds for parental involvement or professional development If LEA reserves funds for parental involvement or professional development Then proportional amount to nonpublic Then proportional amount to nonpublic 34 CFR sect 200.65(a) 34 CFR sect 200.65(a) 24

25. Example LEA reserves 1% of $500,000 allocation for parental involvement, or $5,000. LEA reserves 1% of $500,000 allocation for parental involvement, or $5,000. Of all low-income families residing in participating attendance area, 5% are private. Then 5% of $5,000 used for families of participating private school students. Of all low-income families residing in participating attendance area, 5% are private. Then 5% of $5,000 used for families of participating private school students. 25

26. Professional Development For private school teachers of participants For private school teachers of participants Not for LEA teachers of participants Not for LEA teachers of participants Consult over appropriate services Consult over appropriate services Private school officials cannot arrange, then submit invoice to LEA Private school officials cannot arrange, then submit invoice to LEA 26

27. Poverty Data 5 options: 1. Data from same source 2. Survey, with extrapolation 3. Comparable data from different source 4. Proportionality 5. Correlated measure 27

28. Proportionality Proportionality Applying low-income % of each public school attendance area to number of private school children who reside in that areaApplying low-income % of each public school attendance area to number of private school children who reside in that area Correlated measure Correlated measure Determining the proportional relationship between two sources and applying that ratio to known source or private school studentsDetermining the proportional relationship between two sources and applying that ratio to known source or private school students 28

29. Poverty Data: Guidance USDE preferred method: Same source (FRPL) USDE preferred method: Same source (FRPL) BUT – Legis and regs say equally available BUT – Legis and regs say equally available May used >1 method May used >1 method Use comparable income levelsUse comparable income levels No duplicationNo duplication 29

30. Collect Annually or Biennially Purpose: to reduce burden Purpose: to reduce burden Subject to consultation Subject to consultation Not necessary to have uniform procedure for all private schools Not necessary to have uniform procedure for all private schools 30

31. Distributing the Funds Two options: 1) Pooling: pool the funds to use for students with greatest educational need anywhere in LEA; or 2) School-by-School: funds follow child to private school for educationally needy child in that school 31

32. Under Pooling Option If a private school with students eligible for service chooses not to participate, funds generated by low income students in that school remain in the pool. If a private school with students eligible for service chooses not to participate, funds generated by low income students in that school remain in the pool. 32

33. What if LEA chooses to “skip” a public school on its list? If LEA meets the 3 requirements in order to “skip” public school on its list, eligible private school students who reside in that public school attendance area still must: 1) generate funds, and 2) receive services, if eligible. 33

34. Who gets served??

35. Eligibility for Services Who is eligible for services? 1) Reside in participating public school attendance area; AND 2) Meet sect 1115 criteria educationally needyeducationally needy status eligibility: homeless, Head Start, ERF, etc.status eligibility: homeless, Head Start, ERF, etc. 35

36. Selection criteria Determined by LEA, in consultation Determined by LEA, in consultation Multiple, educationally-related objective Multiple, educationally-related objective Achievement tests, teacher referrals, gradesAchievement tests, teacher referrals, grades Preschool-grade 2: Preschool-grade 2: Solely on basis of criteria such as teacher judgment, parent interviews, and developmentally appropriate meansSolely on basis of criteria such as teacher judgment, parent interviews, and developmentally appropriate means 36

37. Poverty is NOT a criterion Poverty is NOT a criterion # of low-income ≠ # eligible for service 37

38. Service Delivery Directly, through private company, or another LEA Directly, through private company, or another LEA May be on-site at private school, with safeguards May be on-site at private school, with safeguards Neutral, secular and non-ideological Neutral, secular and non-ideological Benefit of students, not private school Benefit of students, not private school 38

39. LEA controls! LEA is responsible for planning, designing and implementing the Title I program LEA is responsible for planning, designing and implementing the Title I program Through consultation Through consultation LEA cannot delegate to private schools or third party contractors LEA cannot delegate to private schools or third party contractors 39

40. Examples Instruction provided by LEA employees or third-party contractors Instruction provided by LEA employees or third-party contractors Extended-day services Extended-day services Family literacy Family literacy Counseling Counseling Computer-assisted instruction Computer-assisted instruction Home tutoring Home tutoring Take home-computers Take home-computers 40

41. Schoolwide option? NO!

42. What if child resides in LEA XX, and attends private school in LEA YY? LEA XX is responsible. LEA XX is responsible. LEA where child resides is responsible for arranging for services. LEA where child resides is responsible for arranging for services. May arrange to have services provided by another LEA and reimburse for cost. May arrange to have services provided by another LEA and reimburse for cost. 42

43. Timing of Services Guidance: Must begin at same time as public program Must begin at same time as public program If not, LEA should provide additional services during the remainder of the year and carry over any unspent funds If not, LEA should provide additional services during the remainder of the year and carry over any unspent funds 43

44. Agostini: Safeguards Services may be on-site at private school, with safeguards Services may be on-site at private school, with safeguards Guidance: need not mirror NYC program Guidance: need not mirror NYC program Guidance: need not remove religious objects from room Guidance: need not remove religious objects from room Neutral, secular and non-ideological Neutral, secular and non-ideological 44

45. Sect 1119 Staff Qualifications Do NOT apply to: Do NOT apply to: private school teachers or paraprofessionalsprivate school teachers or paraprofessionals third party contractor teachers or parasthird party contractor teachers or paras DOES apply to: DOES apply to: LEA teachers teaching private school studentsLEA teachers teaching private school students LEA paraprofessionalsLEA paraprofessionals 45

46. Accountability Must assess participating private school students Must assess participating private school students Need not be state assessmentNeed not be state assessment ConsultationConsultation Compare against relevant adequate progress measure Compare against relevant adequate progress measure No school improvement consequences (choice, supplemental services, etc.) No school improvement consequences (choice, supplemental services, etc.) 46

47. How to handle carryover?? If equitable services provided, then carryover reverts to regular Title I pot If equitable services provided, then carryover reverts to regular Title I pot If equitable services NOT provided, then earmark for private school services during carryover year, PLUS entire new allocation If equitable services NOT provided, then earmark for private school services during carryover year, PLUS entire new allocation 47

48. Heightened Fiscal Scrutiny on Third Party Contracts Heightened Fiscal Scrutiny on Third Party Contracts

49. USDE State Monitoring: SEA must require LEA to ensure third party is in compliance SEA must require LEA to ensure third party is in compliance Provider give “technical descriptions... in detail sufficient to enable the LEA to determine” requirements met Provider give “technical descriptions... in detail sufficient to enable the LEA to determine” requirements met 49

50. LEAs must exercise proper oversight over invoices LEAs must exercise proper oversight over invoices Invoice expenditures in 2 categories: Invoice expenditures in 2 categories: Instructional activities and administrative costsInstructional activities and administrative costs Within each category, provide detail sufficient to determine compliance Within each category, provide detail sufficient to determine compliance Name and salary of each teacher, instructional materials purchased, supervisor’s salary, office expenses, travel costs, capital expense type costs, and feeName and salary of each teacher, instructional materials purchased, supervisor’s salary, office expenses, travel costs, capital expense type costs, and fee 50

51. Title to equipment purchased by third party providers Sect 1120(d): Public Control of Funds: Sect 1120(d): Public Control of Funds: The control of Title I funds and title to materials, equipment, and property purchased with such funds, shall be in a public agency The control of Title I funds and title to materials, equipment, and property purchased with such funds, shall be in a public agency The public agency shall administer Title I funds, materials, equipment, and property The public agency shall administer Title I funds, materials, equipment, and property 51

52. 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. 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.