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WHAT ESEA TITLE I REQUIREMENTS REMAIN IN THE LAND OF THE WAIVER? Brustein & Manasevit, PLLC1 Leigh...
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Transcript of WHAT ESEA TITLE I REQUIREMENTS REMAIN IN THE LAND OF THE WAIVER? Brustein & Manasevit, PLLC1 Leigh...
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
Brustein & Manasevit, PLLC 2
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
Brustein & Manasevit, PLLC 3
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
Brustein & Manasevit, PLLC 4
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
Brustein & Manasevit, PLLC 5
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
Brustein & Manasevit, PLLC 8
“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
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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
Brustein & Manasevit, PLLC 10
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
Brustein & Manasevit, PLLC 12
Waivers
• Optional #11• 21st Century Community Learning
Centers support expanded learning time during school day
Brustein & Manasevit, PLLC 13
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
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
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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
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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
Brustein & Manasevit, PLLC 18
“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
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“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
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–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
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
Brustein & Manasevit, PLLC 24
Waivers Pending• Iowa (approval unlikely – was rejected once in
June 2013)• Wyoming• Bureau of Indian Education
Brustein & Manasevit, PLLC 25
Waivers Withdrawn & Rejected
• Rejected:• California• Iowa
• Withdrawn: • North Dakota• Vermont
Brustein & Manasevit, PLLC 26
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
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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
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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
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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
Brustein & Manasevit, PLLC 31
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
Brustein & Manasevit, PLLC 32
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
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 35
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.)
Brustein & Manasevit, PLLC 37
• 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
Brustein & Manasevit, PLLC 38
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 39
Who is a Title I student?
Students identified as failing or at risk of failing State standards: NOT based on poverty!
Brustein & Manasevit, PLLC 40
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
Brustein & Manasevit, PLLC 41
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
Brustein & Manasevit, PLLC 43
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
Brustein & Manasevit, PLLC 44
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
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Eligible School Attendance Areas
• Residency Model
OR
• Enrollment Model
Brustein & Manasevit, PLLC 47
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
Brustein & Manasevit, PLLC 49
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 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 52
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
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Parental Involvement Policies
• LEA parental involvement policy• School parental involvement policy• School/Parent compact
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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
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Brustein & Manasevit, PLLC 56
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)
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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
Brustein & Manasevit, PLLC 58
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?
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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
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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
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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
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MOE: Failure under NCLB
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• 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
Brustein & Manasevit, PLLC 66
Comparability • How is this calculated and why does
it matter?
Legal Authority:Title I Statute: §1120A(c)
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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.”
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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
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Supplement Not Supplant
• Surprisingly Not Greatly Affected by Declining Budgets!
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Supplement Not Supplant
• Federal funds must be used to supplement, and in no case supplant, State and local resources
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Auditors’ Tests for Supplanting
• OMB Circular A-133 Compliance Supplement
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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
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 78
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
Brustein & Manasevit, PLLC 80
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
Brustein & Manasevit, PLLC 82
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
Brustein & Manasevit, PLLC 83
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 84
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
Brustein & Manasevit, PLLC 85
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.
Brustein & Manasevit, PLLC 87