WHAT ESEA TITLE I REQUIREMENTS REMAIN IN THE LAND OF THE WAIVER? Brustein & Manasevit, PLLC1 Leigh M. Manasevit, Esq. [email protected] Brustein &

WHAT ESEA TITLE I REQUIREMENTS REMAIN IN THE LAND OF THE WAIVER?

Brustein & Manasevit, PLLC 1

Leigh M. Manasevit, [email protected]

Brustein & Manasevit, PLLCSpring Forum 2014

Waiver Resources

•Statute – NCLB, Section 9401

•Guidance – • Title I, Part A – July 2009

•Maintenance of Effort – See program statutes


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 funds•Comparability•Supplement not supplant•Equitable services to private school students•Parent involvement


NCLB – What can be waived (cont.)?

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


June 28, 2011 Congressional Research Service (CRS) Report on Secretary of Education’s Waiver Authority1.ED has the authority to waive accountability provisions of Title I, Part A2.It is unclear if the Secretary can condition a waiver on other action(s) not required by law


ED Announcementon Waivers


Waivers • ED makes the announcement• September 23, 2011 Letter to Chiefs• NCLB became a barrier to reform• Opportunity to request flexibility• State• LEA• Schoolshttp://www2.ed.gov/policy/gen/guid/

secletter/110923.html Brustein & Manasevit, PLLC 7

Letter• Flexibility in exchange for rigorous

and comprehensive State plans that:–Improve educational outcomes–Close achievement gaps–Increase equity–Improve instruction


“ESEA Flexibility” September 23, 2011

• 10 provisions subject to waiver1. 2013-2014 timeline –

Develop new ambitious AMO’s2. School improvement consequences: LEA not required to

take currently required improvement actions in Title I Schools

3. LEA improvement identification: Not required to identify for improvement LEA that fails 2 consecutive years

4. Rural LEAs• Small Rural School Achievement or Rural and Low

Income program• Flexibility regardless of AYP status


Waivers5. Schoolwide

Operate as schoolwide regardless of 40% poverty threshold if• SEA identified as a priority or focus school with

interventions consistent with turnaround principles6. 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


Waivers8. HQT improvement plans

• LEA that does not meet HQT no longer must develop an improvement plan• Flexibility in use of Title I and Title 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

Waivers9. Transferability

• Up to 100%, same programs10. SIG

• 1003g awards for any priority school


Waivers

• Optional #11• 21st Century Community Learning

Centers support expanded learning time during school day


New Waiver #12

• No AYP determination for LEAs or Schools


New Waiver #13• LEA may serve Title I

eligible priority high school with graduation rate under 60% without regard for rank and serve???


New Waiver #14

• New optional waiver from March 2013 FAQ Addendum• SEAs and LEAs would no longer

have to make AYP determinations• http://www2.ed.gov/policy/

eseaflex/faqaddendum.doc


New Waiver #15

• August 2013• Delays in implementing teacher evaluations• ED “willing to consider, on a State-by-State basis,

requests to permit a Window 1 or Window 2 SEA to have one additional year beyond the timeline required by ESEA flexibility — that is, to have until the 2016–2017 school year — to use the results of its teacher and principal evaluation and support systems to inform personnel decisions. ”

• Assistant Secretary's August 2, 2013 Letter


New Waiver #16• September 2013• “double-testing” waiver• States can test students in EITHER new pilot

assessment (SBAC/PARCC) OR current State assessment– As long as each student takes a “full” test

• States can also ask for moratorium on using these tests for accountability determinations (freezing accountablity)

• Assistant Secretary's September 17, 2013 Letter


“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


“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


–School Performance over time–New AMOs (ambitious)• State LEAs• Schools• Subgroups

–Incentives and recognitions–Dramatic systemic changes in lowest

performing schoolsBrustein & Manasevit, PLLC 21

“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 22

“In Exchange for…”

4. Reduce duplication and unnecessary burden


Waiver States• 43 States, Puerto Rico, the District

of Columbia, CORE districts in California

• Alabama, Alaska, Arkansas, Arizona, Colorado, Connecticut, District of Columbia, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, Wisconsin


Waivers Pending• Iowa (approval unlikely – was rejected once in

June 2013)• Wyoming• Bureau of Indian Education


Waivers Withdrawn & Rejected

• Rejected:• California• Iowa

• Withdrawn: • North Dakota• Vermont


Non-Waiver States

• Montana & Nebraska have not applied for a waiver


Center on Education Policy Waiver Report - March 2013

• Report found that States are supportive of the waivers because of the relief from some of the burdensome requirements of ESEA

• States were concerned with the effect of ESEA reauthorization on waivers including confusion and additional costs of implementing accountability systems and developing new teacher evaluation systems

• 24 of 38 States identified that costs could be greater under ESEA waivers

• 11 of 34 States and D.C. that have received waivers have needed to revise or implement new teacher and principal evaluations

• One State official commented on ED’s quantity of revisions to their application as “erred on the side of ridiculous”

http://www.cep-dc.org/cfcontent_file.cfm?Attachment=McMurrerYoshioka%5FReport%5FStatesPerspectivesonWaivers%5F030413%2Epdf


Alliance for Excellent Education ESEA Waivers Study - February 2013

• Study concluded that a majority of waiver States have ignored Federal regulations to promote accountability with high school graduation rates

• 2008 – ED regulations required States to measure high school graduation rates as an accountability measure, a four-year cohort rate

• 23 waiver States were permitted to use an accountability system inconsistent with the regulations by including GED certificates and drop out rates

• 12 States decreased the weight of graduation rates to less than 25%

http://www.all4ed.org/files/ESEAWaivers.pdf


New America Foundation Waiver Report – December 2013

• “It’s All Relative: How NCLB Waivers Did — And Did Not —Transform School Accountability”

• Studied implementation of waivers in sixteen States only• Eleven states classified fewer priority or focus schools in 2012–

13 than the number of schools identified for NCLB improvement in 2011-12

• On average, two-thirds of the schools identified by NCLB were not among the bottom 15 percent of the state’s waiver accountability plan

• ED included “safeguards” to ensure certain kinds of schools were typically priority or focus schools: high schools with low graduation rates and schools receiving School Improvement Grants (SIG). But “these safeguards did not necessarily result in a greater emphasis on high school accountability or the consistent identification of SIG schools.”

• http://newamerica.net/sites/newamerica.net/files/policydocs/ItsAllRelative-12-17-2013.pdf


ED Monitoring • ED monitored State Waivers SY 2012-2013• (monitoring for extensions to be in 2014-15)

• 3 components: “Part A”- ongoing to include technical assistance and implementation of waiver components; Part B – “deeper look” at the SEA’s implementation of Principles 1, 2, and 3, as well as follows-up on any “next steps” from Part A Monitoring. “Part C” for waiver extensions

• Flexibility Monitoring Part A Protocol: http://www.ed.gov/esea/flexibility/documents/monitoring-part-a-protocol-acc.doc

• Part B Monitoring Plan: http://www2.ed.gov/policy/eseaflex/monitoring/part-b-plan.doc


Additional Waivers• “CORE” District waiver

• Approved in August 2013 for Nine California school districts • Specialized waiver process through ED – no “official”

application• Concerns among States about State

responsibility/involvement• Sacramento backed out in April 2014 due to issues with

teacher evaluations


What’s Next for Waivers• Renewals

– States that submitted applications in first two windows can renew for two more years• Starting January 2014

– Must report on progress, show compliance with four “principles for reform”

• High-Risk Waivers– States having problems with teacher/principal

evaluation systems (all got conditional approval)– Kansas, Oregon, Arizona, Washington

– ED says that if not in compliance by end of SY 2013-14, will revoke waivers

– What happens to a State if ED revokes waiver????Brustein & Manasevit, PLLC 33

BASIC ESEA TITLE I, PART A REQUIREMENTS NOT SUBJECT TO WAIVER


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


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 servingBrustein & Manasevit, PLLC 36

Title I Basics (cont.)


• Allocations are based on poverty levels

• Service is based on academic need

Program Design

• Two models of Title I, Part A program:1. Targeted Assistance2. Schoolwide


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


Who is a Title I student?

Students identified as failing or at risk of failing State standards: NOT based on poverty!


Eligible Title I students• Student 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


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 42

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


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


Ranking and Serving Schools Under Section 1113


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


Eligible School Attendance Areas

• Residency Model

OR

• Enrollment Model


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 48

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


Exception: Rank & Serve• “Skip” school, if:

1. Comparability met2. Receiving supplemental State/local

funds used in Title I-like program3. Supp. State/local funds meet or

exceed amount would be received under Title I

• Still count and serve nonpublic in areaBrustein & Manasevit, PLLC 50

Parental Involvement


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


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


Parental Involvement Policies

• LEA parental involvement policy• School parental involvement policy• School/Parent compact


Parental Involvement• 1% of LEA’s 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



Other LEA Set-Asides;Maintenance of

Effort, Comparability and

Supplement Not Supplant

LEA Reservations of Title I Funds• 20% Choice transportation & SES• 5% Teacher & paraprofessional

qualifications???? • 1% Parental involvement• 10% Professional development (if LEA

identified)


1% Parental 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


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?


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 ID’d schools (< 5%) Professional development “Other authorized activities”Brustein & Manasevit, PLLC 60

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


Maintenance of Effort

• Most Directly Affected by Declining Budgets


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


MOE: Preceding Fiscal Year• Need to compare final financial data• Compare “immediate” PFY to “second”

PFY • EX: To receive funds available July

2009, compare 2007-08 school year to 2006-07 school year


MOE: Failure under NCLB


• 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

MOE: Waiver• USDE Secretary may waive if:–Exceptional or uncontrollable

circumstances, such as natural disaster

OR–Precipitous decline in financial

resources of the LEA


ED Waivers

• To State to Grant to LEAs


Comparability • How is this calculated and why does

it matter?

Legal Authority:Title I Statute: §1120A(c)


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.”


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



• Surprisingly Not Greatly Affected by Declining Budgets!



• Federal funds must be used to supplement, and in no case supplant, State and local resources


“What would have happened in the absence of the Federal funds???”


Auditors’ Tests for Supplanting

• OMB Circular A-133 Compliance Supplement


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• Same service to non-Title I students

with State/local fundsBrustein & Manasevit, PLLC 75

School Choice and Supplemental Educational

Services (SES)



Equitable Services for Private School Students

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


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 services4. 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 services6. 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 79

Consultation must include: (cont.)

Discussion about use of 3rd Party Providers• Must consider private school officials’ views

– but LEA decides whether it will use 3rd 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


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 LEA’s files

Example in GuidanceBrustein & Manasevit, PLLC 81

Deriving Instructional Allocation

General Formula:• Based on number of:

1. Private school students 2. From low-income families3. Who reside in Title I-participating

public school attendance areas


Private school students also must get equitable share of some set-asides:

•Off the top for district-wide instruction•Off the top for parental involvement•Off the top for professional

development


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


Agostini: Safeguards• Services may be on-site at private school,

with safeguards• Guidance: Need not remove religious

objects from room–Must have safeguards in place to

ensure NOT promoting religion• Neutral, secular and non-ideological


QUESTIONS???


DisclaimerThis 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.


WHAT ESEA TITLE I REQUIREMENTS REMAIN IN THE LAND OF THE WAIVER? Brustein & Manasevit, PLLC1 Leigh M. Manasevit, Esq. [email protected] Brustein &

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