CEP and Waivers How New Initiatives Affect Federal Funding, Reporting, and Accountability Leigh Manasevit, Esq. [email protected] Julia Martin, Esq

CEP and WaiversHow New Initiatives Affect Federal Funding, Reporting, and

Accountability

Leigh Manasevit, [email protected]

Julia Martin, [email protected]

Brustein & Manasevit, PLLCSpring Forum 2015

CEPThe Community Eligibility Program

Brustein & Manasevit, PLLC 2

Background on CEP

• Part of Healthy, Hunger-Free Kids Act of 2010 (Sec. 104(a))• CEP allows local educational agencies (LEAs) and

individual schools to bypass household applications for free and reduced-price meals and offer free meals to all students • Phased in starting in 2011; available in all States starting

in 2014


Who Can Participate?

• LEAs or schools that:•Meet a minimum of 40% “identified students”

determined eligible for free meals in the year prior to implementing CEP• Agree to serve free breakfast AND lunch to all students• Not collect free and reduced-price meal applications

from households in participating schools• Agree to cover any costs above federal reimbursement

amounts using non-federal funds


Who Can Participate?

• An LEA may participate in the CEP for all schools OR only for some schools.• 40% identified students minimum for eligibility can be

determined:• On a school-by-school basis• For a group of schools as a group

(not all must be above threshold)• For entire LEA as a whole


Who are “identified students?”

• Students “certified for free meals through means other than individual household applications”• Certified based on “direct certification” data from their/their families’

participation in:• Supplemental Nutrition Assistance Program (SNAP) • Temporary Assistance for Needy Families (TANF)• Food Distribution Program on Indian Reservations (FDPIR)• Head Start/Even Start• Programs for homeless (on local liaison’s list), runaway, and migrant youth• Non-applicants approved by local officials and identified through means other

than an application


How to Calculate ISP

• Identified students percentage (ISP) = (Total # of identified students)/(number of enrolled students)•“Enrolled students” = students who are enrolled in and attending schools participating in CEP, and who have access to at least one meal service daily (breakfast or lunch)• Not just CEP participating students

•Must be at least 40% to participate in CEP• May NOT round up: guidance says “a percentage of 39.98%, e.g., does

NOT meet the threshold”


How Expenses are Reimbursed

• Schools/LEAs receive reimbursement at federal free rate based on “claiming percentage” • Claiming percentage = ISP x multiplier•Multiplier set at 1.6 through school year

2014-15• HHFKA allows USDA to set it anywhere

between 1.3 and 1.6•May not exceed 100%• Remaining meals (equaling up to 100%)

reimbursed at federal paid reimbursement rates

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How CEP Interacts with ESEA


CEP and ESEA

• National School Lunch Program data, especially free and reduced-price school meal data, is part of allocation calculations under a number of laws• This includes Title I of ESEA


Use of CEP Data

• ED: the “CEP percentage of identified students and direct certification data combined with household applications in non-CEP schools are all considered NSLP data under the Richard B. Russell National School Lunch Act”• However, an LEA “may use another poverty data source” for a

school as long as that source is permitted under ESEA• May conduct own survey• though USDA guidance notes that CEP is supposed to reduce

burden


Data Surveys

• LEA may conduct its own survey to collect the equivalent of NSLP data, however:• Discouraged by ED/USDA• ED urges LEA to “give careful consideration” to decision (would

add burden)• May use the results for Title I purposes so

long as it is confident the survey data are accurate and used consistently• May not indicate that survey is required by

ED or USDA


Data Surveys

• LEA may use Title I funds to pay for a survey unless:• Similar surveys already being conducted for purposes of State law

(supplanting)• Examine “factual circumstances” within LEA to determine whether

use of Title I funds is necessary, reasonable, and allocable to Title I• E.g. does SNAP data not accurately represent school/LEA?

• Data used by other non-Title I programs • In this case, examine ways to share costs


Within-District Allocations

• For districts with both CEP and non-CEP schools, can use CEP data for within-district allocations under ESEA Sec. 1113(a)(5)• Use data from the prior year (so will be applicable in

second-year or later CEP schools)• ED: 2003 allocation guidance still generally

applies


CEP Data and Rank and Serve

•When an LEA has both CEP and non-CEP schools, must use a “common poverty metric” to rank schools and allocate funds• Common poverty metric must also then be used to

determine compliance with Title I comparability (see ED’s March 2015 guidance)

•ED suggests three methods of identifying a “common poverty metric”



• Suggested metric 1: multiply number of directly certified students in a school by 1.6 multiplier, then divide by the enrollment of school (provides approximation of free and reduced-price meal numbers)• Suggested metric 2: rank all schools (CEP and non-CEP) based solely on

percentage of students directly certified through SNAP (or other direct measure available annually for both CEP and non-CEP schools)• Suggested metric 3: apply 1.6 multiplier to number of students in CEP

and non-CEP schools who are directly certified (similar to metric 1, but yields a higher poverty percentage, meaning more schools may be Title I eligible)



• If an LEA is implementing CEP, or if all schools are using CEP, an LEA may use number of directly certified students only

• If application of the 1.6 multiplier results in more than one school at 100% poverty, LEA may take into consideration the direct certification percentage at each school for purposes of funding • Does not need to allocate same amount

• If an LEA groups CEP schools for purposes of eligibility/reimbursement, they do not need to be grouped for purposes of ranking

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Data Collect Deadlines

• CEP reimbursement rate based on data collected April 1 of previous school year (unless LEA chooses to use count from earlier in grant cycle)• If CEP and Non-CEP data are collected at different times, three options:

• LEA can use CEP data from April 1 for CEP schools and NSLP data for non-CEP schools so long as both occur during same year• LEA can use count of NSLP applications and direct certification data accessed as

of approximately April 1• For Title I purposes only, LEAs using direct certification data can access that

data on approximately the same date it looks at other data for non-CEP schools

• LEA may not use older pre-CEP data to allocate funds

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Private Schools

•Private schools are eligible to participate in CEP if they otherwise meet the eligibility requirements•But LEA may need to find new data

for determining need for equitable services, other items


CEP and Equitable Services

• LEA must identify method it will use to determine number of private school children from low-income families who reside in participating school attendance areas• Methods include:

• Using the same poverty measure used by LEA to count public school students (*guidance says this is preferred method*)• Using comparable poverty data from survey of private school families as

representative sample• Using comparable poverty data from another source• Applying low-income percentage of each participating attendance area to the

number of students (“proportionality”)• Using another measure of low income correlated with that used in public schools


CEP and Equitable Services

•Not every child in a private CEP school automatically generates Title I equitable services funds• ONLY students who live in a

participating public school attendance area would generate those funds


Within-State Allocations

•CEP data may be used in finalizing within-State allocations if:• ED’s list does not match State’s (due to, e.g., boundary

changes, charter schools, new schools, etc.)• State must derive estimate of Census poverty – can use CEP data if

State normally uses census poverty data• State combines allocation for small LEAs• May use direct certification data only, OR direct certification x 1.6

multiplier


CEP and Title I Reporting

• LEAs and SEAs must disaggregate data based on subgroup of economically disadvantaged students• And must offer school choice/SES

•ED: “for most LEAs, [school lunch] data, including CEP data, may be the best source to identify individual economically disadvantaged students”

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CEP and Title I Reporting

•SEA can choose how to identify economically disadvantaged subgroup for purposes of Title I reporting/accountability:• Include only “identified students” directly

certified for poverty-based services like SES•Use survey data; or•Base reporting and accountability on all students

in a CEP school• In this case, “economically disadvantaged” subgroup is

same as “all students” subgroup• And all students then eligible for services based on

poverty24

CEP and Teacher Qualifications

• SEA must report on qualifications of teachers in schools in top and bottom quartiles• For a CEP school, an LEA may use either:• Direct certification data x 1.6 multiplier, or• Direct certification data only• In this case, must use counts from all schools

regardless of whether they participate in CEP

• Does not have to be the same method the LEAs uses to allocate funds


More CEP Resources

• USDA FNS: “Community Eligibility Provision: Guidance and Q&As”(memo SP16-2015)• ED: “Guidance: The CEP and Selected Requirements under

Title I, Part A” (March 2015)• FCC: Updated guidance letter on E-Rate for CEP participants

(November 21, 2014)• USDA: Proposed rule on CEP (November 4, 2013)


Waivers – the New Policy Drivers


WAIVER STATES

42 States, the District of Columbia, Puerto Rico, and California’s CORE districts


Waivers Pending

•Wyoming


Waivers Withdrawn & Rejected

•Rejected:•California•Iowa

•Withdrawn: •North Dakota•Vermont


New (Potential) Waiver Application

•California: •Seeking limited waiver on using assessment for accountability•Would use graduation rates, attendance rates and assessment participation instead•Discussed by State Board but not yet formally submitted


“High Risk” & Revoked Waivers

“High Risk”:California’s CORE districts,

September 2014Revoked:

Washington, April 2014Failed to include student

achievement in teacher and principal evaluations


“High Risk” & Revoked Waivers

Oklahoma, August 2014Repealed Common Core and failed to

replace it with equally rigorous standards

Implemented more rigorous standards in October

Restored in November


Non-Waiver States

•Montana has not applied for a waiver•Nebraska has now applied


New Waiver

•New Hampshire•4 Districts will use pilot competency tests – not statewide assessments


Secretary Duncan

•2014 – 2015 transition year – teacher accountability•New 2015 - 2016 deadline teacher accountability –

student test scores•See Deborah Delisle Letter • http://www2.ed.gov/policy/eseaflex/secretary-letters/

cssoltr8212014.html

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Teacher accountability

•Rep. George Miller (D-CA)• Former ranking Member of the House Committee on

Education and the Workforce• Supporter of Common Core and accountability; One of

the architects of NCLB• Believes a “smart pause” is needed before tying teacher

evaluations to Common Core-aligned tests


GAO Study on Waivers

•Senator Lamar Alexander (R–TN)•Representative John Kline (R–MN) •August 12, 2014 – requested study on •ED process • Issues for states•Accountability

•http://www.help.senate.gov/newsroom/press/release/?id=f9e1224c-21e6-4f1a-9602-ff4e361ac2dc&groups=Ranking


Waiver Renewal Guidance – November 13, 2014

•Waiver renewal through 2017-2018 school year•Some States can get expedited 4-year renewal

through 2018-2019•Applications due March 31, 2015• January deadline for States seeking expedited

renewal•New guidance document:

http://www2.ed.gov/policy/elsec/guid/esea-flexibility/flex-renewal/flexguidrenewal2014.doc


Renewal Guidance (cont.)

Policy:•New plans to identify and intervene in low-performing schools •Beyond what the States have already implemented•Describe, in detail, what “rigorous interventions”

they are using in schools with the biggest achievement gaps


Renewal Guidance (cont.)

Policy:•States must:• Update list of priority/focus schools• Ensure that evaluation systems do not allow schools with

persistent achievement gaps to obtain highest ratings• Resolve any current implementation or non-compliance

issues, monitoring findings, high-risk status designations, and other conditions

•NO requirement that States show their waiver plans/interventions are working


Common Core


Repealed Common Core

• Indiana (April, 2014)• Implemented standards very similar to Common Core

•Oklahoma (June, 2014)• Initially reverted to old standards, then implemented new

ones in October• South Carolina (May, 2014)•Using Common Core for 2014-2015• Adopted new standards in March for 2015-2016


Adopted Slight Changes, But No Repeal

•Florida (February 2014)


Reconsidering Common Core

•Mississippi (March, 2015)• Passed legislation to review Common Core and make

recommendations by December•Missouri (July, 2014)• Reviewing Common Core and potentially revising for 2016-

2017•North Carolina (July, 2014)• Created a commission to review Common Core and make

recommendations for improvement•West Virginia (March, 2015)• State Dept. of Education will review Common Core this

summerBrustein & Manasevit, PLLC 45

Growing Pressure to Repeal

LouisianaGov. Bobby Jindal wants Common Core repealedJindal had suspended the use of PARCC exams, saying

Superintendent John White and the State board did not properly follow contracting procedures

However, a judge lifted Jindal’s PARCC suspensionJindal has now filed a lawsuit against ED and Sec. Duncan,

claiming that offering ESEA waivers and Race to the Top went beyond Duncan’s legal authority and coerced States into adopting Common Core



New YorkMore than 62,000 residents signed onto an effort

creating a "Stop Common Core" ballot line to allow voters to voice their concerns about the state's new education standards

The ballot line received over 50,000 votes in the November election

New JerseyGov. Chris Christie has created a commission to

review the effectiveness of Common Core assessments, and the assessments now have less importance in teacher evaluations

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MontanaA bill has been introduced in the state Senate to repeal

and replace Common Core Wisconsin

Gov. Scott Walker has called for the legislature to repeal Common Core or make it optional for districts

UtahGov. Gary Herbert had the state attorney general

review the standards’ connections to the federal government – A.G. determined they were not illegally adoptedBrustein & Manasevit, PLLC 48

PDK/Gallup Poll on Education

•60% of Americans oppose Common Core – too restrictive for teachers•http://pdkintl.org/noindex/PDK_Poll_46.pdf


Common Core

•Growing Parent Opposition = High level of opt outs•New York•Colorado•Florida•New Mexico•North Carolina•Pennsylvania


Common Core

•ED Response – How did state react?


QUESTIONS?

Disclaimer

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.


Documents

CEP and Waivers How New Initiatives Affect Federal Funding, Reporting, and Accountability Leigh Manasevit, Esq. [email protected] Julia Martin, Esq