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What Title I Requirements Remain in the Land of the Waiver Initiative?

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Title: What Title I Requirements Remain in the Land of the Waiver Initiative?


1
What Title I Requirements Remain in the Land of
the Waiver Initiative?
Leigh M. Manasevit, Esq. lmanasevit_at_bruman.com
Brustein Manasevit, PLLC www.bruman.com Spring
Forum 2013
2
Waiver Resources
  • Statute NCLB Section 9401
  • Guidance
  • Title I, Part A July 2009
  • Maintenance of Effort See program statutes

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

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

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

6
ED Announcement on Waivers
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/secletter/11092
    3.html

8
Letter
  • Flexibility in exchange for rigorous and
    comprehensive state plans
  • Improve educational outcomes
  • Close achievement gaps
  • Increase equity
  • Improve instruction

9
ESEA Flexibility September 23, 2011
  • 10 provisions subject to waiver
  • 2013-2014 timeline
  • develop new ambitious AMOs
  • School improvement consequences LEA not
    required to take currently required improvement
    actions in Title I Schools
  • LEA improvement identification Not required to
    identify for improvement LEA that fails 2
    consecutive years
  • Rural LEAs
  • Small Rural School Achievement or Rural and Low
    Income program
  • Flexibility regardless of AYP status

10
Waivers
  • Schoolwide
  • Operate as schoolwide regardless of 40 poverty
    threshold if
  • SEA identified as a priority or focus school with
    interventions consistent with turnaround
    principles
  • School Improvement
  • 1003a funds to serve any priority or focus school
    if SEA determines school in need of support
  • Reward Schools
  • Rewards to any reward school if the SEA
    determines appropriate

11
Waivers
  • 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

12
Waivers
  • Transferability
  • Up to 100, same programs
  • SIG
  • 1003g awards for any priority school

13
Waivers
  • Optional 11
  • 21st Century Community Learning Centers support
    expanded learning time during school day

14
New Waiver 12
  • No AYP determination for LEAs or Schools

15
New Waiver 13
  • LEA may serve Title I eligible priority high
    school with graduation rate under 60 without
    regard for rank and serve???

16
New Waiver!
  • New optional waiver from March 2013 FAQ Addendum
  • 14) SEAs and LEAs would no longer have to make
    AYP determinations
  • http//www2.ed.gov/policy/eseaflex/faqaddendum.doc

17
In Exchange for Must meet 4 principles
  • College and Career Ready Standards Develop and
    Implement
  • Reading/Language Arts
  • Math
  • Aligned assessments measuring growth
  • ELP assessment aligned to 1

18
In Exchange for
  • 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

19
  • School Performance over time
  • New AMOs (ambitious)
  • State LEAs
  • Schools
  • Subgroups
  • Incentives and recognitions
  • Dramatic systemic changes in lowest performing
    schools

20
In Exchange for
  • Effective Instruction/Leadership
  • Commit to develop/adopt pilot and implement
  • Teacher/principal evaluation systems
  • Student Growth Significant Factor

21
In Exchange for
  • Reduce duplication and unnecessary burden

22
Waiver States
  • 34 States and the District of Columbia
  • Arkansas, Arizona, Colorado, Connecticut,
    District of Columbia, Delaware, Florida, Georgia,
    Idaho, Indiana, Kansas, Kentucky, Louisiana,
    Maryland, Massachusetts, Michigan, Minnesota,
    Mississippi, Missouri, Nevada, New Jersey, New
    Mexico, New York, North Carolina, Ohio, Oklahoma,
    Oregon, Rhode Island, South Carolina, South
    Dakota, Tennessee, Utah, Virginia, Washington,
    Wisconsin

23
Waivers Pending
  • Alabama
  • Alaska
  • Hawaii
  • Illinois
  • Maine
  • New Hampshire
  • Pennsylvania
  • Texas
  • West Virginia
  • Wyoming

24
Waivers Withdrawn Rejected
  • Rejected
  • California
  • Iowa
  • Withdrawn
  • North Dakota
  • Vermont

25
Non-Waiver States
  • Montana Nebraska have not applied for a waiver

26
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.pdf

27
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 EDs quantity of
    revisions to their application as erred on the
    side of ridiculous
  • http//www.cep-dc.org/cfcontent_file.cfm?Attachmen
    tMcMurrerYoshioka5FReport5FStatesPerspectiveson
    Waivers5F0304132Epdf

28
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

29
ED Monitoring
  • ED to monitor State Waivers SY 2012-2013
  • 3 components Part A- ongoing to include
    technical assistance and implementation of waiver
    components Parts B C TBA
  • Flexibility Monitoring Part A Protocol
    http//www.ed.gov/esea/flexibility/documents/monit
    oring-part-a-protocol-acc.doc

30
Basic ESEA Title I, Part A Requirements Not
Subject to Waiver
31
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

W
W
32
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

33
Title I Basics (cont.)
  • Allocations are based on poverty levels
  • Service is based on academic need

34
Program Design
  • Two models of Title I, Part A program
  • Targeted Assistance
  • Schoolwide

35
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

36
Who is a Title I student?
  • Students identified as failing or at risk of
    failing State standards NOT based on poverty!

37
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

38
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

39
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

40
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

41
Ranking and Serving Schools Under Section 1113
42
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

43
Eligible School Attendance Areas
  • Residency Model
  • OR
  • Enrollment Model

44
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!

45
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

46
Exception Rank Serve
  • Skip school, if
  • Comparability met
  • Receiving supplemental State/local funds used in
    Title I-like program
  • Supp. State/local funds meet or exceed amount
    would be received under Title I
  • Still count and serve nonpublic in area

47
Parental Involvement
48
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

49
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

50
Parental Involvement Policies
  • LEA parental involvement policy
  • School parental involvement policy
  • School/Parent compact

51
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

52
Other LEA Set-Asides Maintenance of Effort,
Comparability and Supplement Not Supplant
W
53
LEA Reservations of Title I Funds
  • 20 Choice transportation SES
  • 5 Teacher paraprofessional
    qualifications????
  • 1 Parental involvement
  • 10 Professional development (if LEA identified)

W
W
W
54
1 Parent Involvement
  • Reserve at least 1
  • 95 of 1 to schools
  • If reserve gt1, still only need to distribute 95
    of first 1 to schools
  • But ALL reserved subject to equitable
    participation for private school students

55
10 Professional Development
W
  • 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?

56
LEA Reservations (cont.)
  • No specified
  • Administration (public private)
  • Private school students
  • Homeless
  • To serve students in non-Title I schools
  • Neglected Delinquent (ND)
  • To serve students in ND institutions or day
    facilities
  • Incentives to teachers in IDd schools (lt 5)
  • Professional development
  • Other authorized activities

57
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

58
Maintenance of Effort
  • Most Directly Affected by Declining Budgets

59
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

60
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

61
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

62
MOE Waiver
  • USDE Secretary may waive if
  • Exceptional or uncontrollable circumstances, such
    as natural disaster
  • OR
  • Precipitous decline in financial resources of the
    LEA

63
ED Waivers
  • To State to Grant to LEAs

64
Comparability
  • How is this calculated and why does it matter?
  • Legal Authority
  • Title I Statute 1120A(c)

65
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.

66
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

67
Supplement Not Supplant
  • Surprisingly Not Greatly Affected by Declining
    Budgets!

68
Supplement Not Supplant
  • Federal funds must be used to supplement, and in
    no case supplant, State and local resources

69
  • What would have happened in the absence of the
    federal funds??

70
Auditors Tests for Supplanting
  • OMB Circular A-133
  • Compliance Supplement

71
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 funds

72
School Choice and Supplemental Educational
Services (SES)
W
73
Equitable Services for Private School Students
74
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

75
Consultation (cont.)
  • Consultation must include
  • How the LEA will identify the needs of eligible
    private school children
  • What services the LEA will offer
  • How and when the LEA will make decisions about
    the delivery of services
  • How, where, and by whom the LEA will provide
    services
  • How the LEA will assess the services and use the
    results of that assessment to improve Title I
    services
  • The size and scope of the equitable services
  • The method or the sources of poverty data used
  • The services the LEA will provide to teachers and
    families of participating private school children
  • MUST Document Consultation was timely and
    meaningful!

76
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

77
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

78
Deriving Instructional Allocation
  • General Formula
  • Based on number of
  • Private school students
  • From low-income families
  • Who reside in Title I-participating public school
    attendance areas

79
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

80
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

81
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

82
Questions???
83
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.
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