1. 21 ST CENTURY COMMUNITY LEARNING CENTERS AND NON-TRADITIONAL PROVIDERS Brette Kaplan, Esq. bkaplan@bruman.com Brustein & Manasevit, PLLC Spring 2012 Forum 1

2. Agenda  21 st Century Community Learning Centers (21 st CCLC) Resources  Selecting Subgrantees  Subgrant v. Contract  21 st CCLC Program Overview  General Fiscal Rules  Equitable Services  Program Evaluation  Common Monitoring Findings 2

3. 21 st CCLC Resources 3 ED’s Website: http://www.ed.gov/programs/21stcclc/index.html http://www.ed.gov/programs/21stcclc/index.html 21 st CCLC Statute: http://www.ed.gov/policy/elsec/leg/esea02/pg55.html http://www.ed.gov/policy/elsec/leg/esea02/pg55.html 21 st CCLC Guidance: http://www.ed.gov/programs/21stcclc/guidance2003.doc http://www.ed.gov/programs/21stcclc/guidance2003.doc Regulations on the Participation of Faith-Based and Community Organizations in Department Programs: http://www.ed.gov/policy/fund/reg/fbci-reg.html http://www.ed.gov/policy/fund/reg/fbci-reg.html EDGAR: http://www.ed.gov/policy/fund/reg/edgarReg/edgar.html http://www.ed.gov/policy/fund/reg/edgarReg/edgar.html OMB Circulars: http://www.whitehouse.gov/omb/circulars/http://www.whitehouse.gov/omb/circulars/

4. Legal Structure of Federal Programs 4 Statutes NCLB, IDEA, WIA, CTE General Education Provisions Act (GEPA) Guidance Regulations Program Regulations Education Department General Administrative Regulations (EDGAR) Office of Management & Budget (OMB) Circulars A-21, A-87, A-122, A-133

5. Selecting Subgrantees 5

6. Subgrantee Selection Requirements Eligible organizations Any public or private organization Ex: non-profits, city or county government agencies, FBOs, IHEs, and for-profit corporations Consortium of 2 or more entities Awards can only be made to responsible subgrantees and contractors possessing the ability to perform successfully under the terms and conditions of the proposed grant or contract. EDGAR, Section 80.36(b)(8) 6

7. What must be included in a local organization’s application? (Guidance, F-3) Before- & after-school, summer & other non-school time activities; How students will travel to/from center and home; How organization will disseminate information about the center; How activities are expected to improve student achievement; Federal, state, & local programs that will coordinate with proposed program for effective use of public resources How program will meet principles of effectiveness Partnership between LEA, CBO, & other public or private organization (if appropriate); Evaluation of community needs & available resources, and description of how program addresses those needs Organization’s experience, or promise of success, in providing educational & related activities to enhance the student’s academic performance How applicant will use qualified seniors as volunteers (if applicable) Required assurances 7

8. Subgrant v. Contract 8

9. What is a subgrant? Federal law dictates what a subgrant is and when it is allowed Subgrantees (also known as subrecipients) must carry out responsibilities of the federal program SEA must monitor subgrantees’ compliance with all federal program and fiscal requirements 9

10. What is a contract? A contract provides goods or services as needed by the program Contractors (vendors) are NOT responsible for carrying out the responsibilities of the federal program Contractors must carry out the terms of their contracts The educational agency must have a contract administration system to ensure contractors are complying with the terms of their contracts 10

11. Subgrant v. Contract How to Distinguish Between Them A subgrantee: Determines who is eligible to participate in the federal program Measures performance against objectives of the federal program Is responsible for programmatic decision making Is responsible for complying with federal program requirements Uses federal funds to carry out the program (not just provide specific goods/services) 11

12. Subgrant v. Contract (continued) How to Distinguish Between Them A contractor: Provides goods/services within normal business operations Provides similar goods/services to different purchasers Operates in a competitive environment Provides goods/services ancillary to operation of the federal program Is NOT subject to compliance requirements of the federal program 12

13. Subgrant v. Contract (continued) How to Distinguish Between Them Agency’s designation as a contract or a subgrant is not binding Auditors are required to use their professional judgment to determine the true nature of a document based on the previous criteria Use proper terminology Minimizes confusion Ensures compliance with appropriate federal regulations Helps facilitate an effective audit 13

14. Nature of Funding Subgrant (e.g., pass-through funds from state administered program) Allowable activities based on applicable statute, local plan, state rules Management rules: EDGAR OMB Circulars State law, applicable policies and procedures 14

15. Nature of Funding (continued) Contract Allowable activities based on terms and conditions of contract Management rules Terms of the contract State contract law 15

16. 21 st CCLC Program Overview 16

17. What is the purpose? To establish or expand community learning centers that provide students with: Academic enrichment opportunities along with activities designed to complement the students’ regular academic program Must also offer families of eligible students literacy and related educational development 17

18. What is a Community Learning Center? Located in elementary or secondary schools, or other similarly accessible facilities Provides a wide range of services to support student learning and development, including: Tutoring  Community service opportunities Mentoring  Character Education Programs Homework help  Drug & violence prevention Academic enrichment  Music, technology, arts, sports & Counseling cultural activities Operates during non-school hours Before or after school, summer, holidays, weekends, etc. Flexibility waiver exception! Assists students in meeting state and local academic achievement standards in core academic subjects 18

19. ESEA Flexibility ED allowing SEAs to request flexibility through waivers of 10 provisions of the ESEA ED allowing an optional 11 th waiver to permit community learning centers to use 21 st CCLC funds to support expanded learning time during the school day in addition to activities during non-school hours or periods when school is not in session (i.e., before and after school or during summer recess) ESEA Flexibility Guidance, p.2 (September 23, 2011) http://www.ed.gov/esea/flexibility 19

20. Eligibility Requirements Who can participate? Students Adult family members of participating students Younger children who will become students at the school being served 20

21. How to Ensure Funds are Spent Properly 21

22. Allowability under 21 st CCLC Is the proposed cost consistent with the applicable OMB Circular? A-21 Educational Institutions A-87 State, Local & Indian Tribal Governments A-122 Non-Profit Organizations 48 CFR part 31 For-Profit Organizations Is the proposed cost allowable under the 21 st CCLC program? Is the proposed cost consistent with 21 st CCLC specific fiscal rules? Is the proposed cost consistent with EDGAR? 22

23. OMB Circular A-87 & A-122 Federal Cost Principles All costs must be: 1. Necessary 2. Reasonable 3. Allocable 4. Legal under state and local law 5. Conform with federal laws & grant terms 6. Consistently treated 7. Generally Accepted Accounting Principles 8. Not included as match 9. Net of applicable credits 10. Adequately documented 23

24. Watch for Allowability Differences 24 OMB Circular A-87OMB Circular A-122 43 Select Items of Costs  General Government Expenses  Maintenance, Operation and Repairs 52 Select Items of Costs  Housing and personal living expenses  Labor Relations costs  Losses on other sponsored agreements or contracts  Organization costs  Page charges in professional journals  Participant support costs  Recruiting costs  Relocation costs  Specialized service facilities  Transportation costs  Trustees

25. 21 st CCLC Program Allowability Rules Local Use of Funds  Remedial education activities and academic enrichment learning programs  Recreational activities Tutoring services and mentoring programs chess clubs (foster critical thinking skills, persistence) poetry contests and slams (encourage reading, writing and speaking) Mathematics and science education activities woodworking programs (encourage planning, measurement, estimation) cooking programs (foster application of math and science skills) Arts and music education activities theatre programs (encourage reading, speaking, teamwork) 25

26. 21 st CCLC Program Allowability Rules Local Use of Funds Programs for Limited English Proficient students that emphasize language skills and academic achievement Expanded library service hours Programs that promote parental involvement and family literacy Book clubs (encourage reading and writing for pleasure) Telecommunications and technology education programs Computer clubs or newspaper publishing (promote writing, editing and knowledge of, and comfort with, technology) Programs that assist truant, suspended, or expelled students to improve their academic achievement Drug and violence prevention programs, counseling programs, and character education programs 26

27. 21 st CCLC Program Allowability Rules Principles of Effectiveness Programs or activities must be based on: Needs assessment of objective data An established set of performance measures aimed at ensuring high quality academic enrichment opportunities; and Scientifically based research that provides evidence that the program or activity will help students meet the state and local academic achievement standards (as appropriate) 27

28. 21 st CCLC Program Fiscal Rules 28

29. 21 st CCLC Fiscal Rules: Supplement Not Supplant 21 st CCLC funds can be used to supplement, but in no case supplant, federal, state, local funds, or other non-federal funds. 29

30. Auditors Presume Supplanting in Two Situations 1. Required to be made available under other federal, state or local laws. 2. Provided with non-federal funds in prior year 30

31. Presumption Rebutted! If able to demonstrate would not have provided services if the federal funds were not available NO non-federal resources available this year! 31

32. What Documentation is Needed? Fiscal or programmatic documentation to confirm that, in the absence of Federal funds, would have eliminated staff or other services in question State or local legislative action Budget histories and information 32

33. 21 st Century Fiscal Rules (continued) What else can be charged to the 21 st CCLC Grant? Indirect Costs If you have an approved rate that can distinguish costs for each program Restricted Indirect Cost Rate Pre-award costs (if have written approval) If charge after award notice but before the effective date, costs may be charged to the extent they would have been allowable if incurred after the award date If, prior to receiving notice of the grant, the local organization incurs financial obligations -- it is doing so at its own risk 33

34. Charge a Fee? YES, however: Must offer a sliding scale of fees and scholarships for those who cannot afford the program Income collected from fees must be used to fund program activities specified in the grant application 34

35. 21 st CCLC Carryover SEA has discretion If grantee making substantial progress: SEA may not redistribute 21 st CCLC funds that remain unobligated if doing so would reduce the total amount of funds available to the grantee from a given fiscal year’s appropriation below $50,000 If grantee is NOT making substantial progress: SEA decides not to award a second or third year 21 st CCLC grant continuation SEA may redistribute any unobligated funds, even if doing so would reduce the funds available below $50,000 35

36. Equitable Services to Private School Students 36

37. Equitable Services 37 21 st CCLC participants receiving funds must provide equitable services to private schools (§ 9501) Title IX, Part E Uniform Provisions Subpart 1 – Private Schools: http://www.ed.gov/policy/elsec/guid/equitableserguidance. doc http://www.ed.gov/policy/elsec/guid/equitableserguidance. doc Code of Federal Regulations (CFR), Title 34, Part 299, Subpart E -- Services to Private School Students and Teachers: http://frwebgate.access.gpo.gov/cgi-bin/get- cfr.cgi?TITLE=34&PART=299&SECTION=6&YEAR=2000 &TYPE=TEXT http://frwebgate.access.gpo.gov/cgi-bin/get- cfr.cgi?TITLE=34&PART=299&SECTION=6&YEAR=2000 &TYPE=TEXT

38. Equitable Services Purpose is that the educational agency: Spends an equal amount of funds to serve similar public and private school students; Provides services and benefits that are equitable in comparison to the services and benefits provided to public school students; Addresses the specific needs and educational programs of public and private school students on a comparable basis; Provides, in the aggregate, approximately the same amount of services; Provides equal opportunities to participate; and Provides services that meet private school students’ specific needs. 38

39. Consultation The educational agency must provide “timely and meaningful” consultation Timely Before LEA makes any decisions Meaningful Genuine opportunity for parties to express their views Views seriously considered 39

40. Consultation Consultation must include: How private school students’ needs will be identified What services will be offered How, where, and by whom the services will be provided How the services will be assessed, and how the results of the assessment will be used to improve services The size and scope of the services How and when the agency will make decisions about the delivery of services 40

41. Program Evaluation 41

42. Program Evaluation Conduct a periodic evaluation of the program to assess progress towards achieving the goal of providing high quality opportunities for academic enrichment 42 Use the results of the evaluation to refine, improve and strengthen the program, and to refine the performance measures Notify the public of the right to review the results of the evaluation and allow such review upon request

43. Common Findings Common 21 st CCLC monitoring findings: Peer review process Awards between 3 to 5 years Applicants describe how the community learning center will continue after 21 st CCLC funding ends Outreach efforts to inform eligible entities about grant competition SEA monitoring subgrantees Reporting complete, accurate, and reliable data 43

44. Questions 44

45. 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. 45