Federal Programs

1. Federal Programs Bonnie Graham Brustein & Manasevit PLLC bgraham@bruman.com

2. Agenda • Community Eligibility • Supplement not Supplant • Title III SNS • Maintenance of Effort • Comparability • Policies and Procedures

3. The Community Eligibility Provision Frequently Asked Questions

4. The Basics

5. What is it? • 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. Meal costs are federally reimbursed based on poverty data

6. Where did it come from? • Healthy, Hunger-Free Kids Act of 2010 (HHFKA) • Amended the Richard B. Russell National School Lunch Act • Reauthorized school meal programs and made some changes • Sec. 104(a) created the Community Eligibility Provision (CEP) • CEP phased in over a period of 3 years beginning July 1, 2011 • Piloted in IL, KY, MI, in school year 2012-2013 and NY, OH, DC, WV, FL, GA, MD, MA in school year 2013-2014 • Available in all states starting July 1, 2014

7. Who can participate? • In order to be eligible, LEAs or schools must: • 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

8. 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

9. Who are “identified students?” • Students “certified for free meals through means other than individual household applications” • Certified based “direct certification” data from on 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 • Foster children certified through means other than an application • Non-applicants approved by local officials and identified through means other than an application

10. 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”

11. What is the “claiming percentage?” • Basis for federal reimbursement • total % of meals reimbursed at federal free meal reimbursement rate, a.k.a. “claiming percentage” = ISP x multiplier • May not exceed 100% • Apply claiming percentage to total number of free and paid lunch and breakfast meals to determine number of meals claimed at free and paid rates • Remaining meals (equaling up to 100%) reimbursed at federal paid reimbursement rates

12. What is the “Claiming Percentage Multiplier?” • ISP x (multiplier) = total % of meals reimbursed at federal free meal reimbursement rate, a.k.a. “claiming percentage” • Currently set at 1.6 through school year 2014-15 • USDA FNS may change the multiplier • Must be between 1.3 and 1.6 according to HHFKA • If multiplier is changed, schools can keep multiplier for 4-year cycle, then change calculation at beginning of new cycle

13. Program Implementation

14. What are State responsibilities? • Collect from LEAs by April 15th a list of potentially eligible schools • Notify eligible LEAsby April 15th of their ability to participate • Make list of eligible schools/LEAs available on State/USDA website by May 1st and provide a link to USDA

15. What is the State approval process? • LEAs must notify the State no later than June 30th of the school year prior that it will implement CEP (deadline extended this year) • A State agency must confirm an LEA’s eligibility to participate in CEP by reviewing documentation submitted by the LEA to verify that it: • Meets the minimum identified student percentage • Participates in both the NSLP and SBP • Is administering the meal programs in accordance with program regulations

16. What are LEA responsibilities? • Must provide to State by April 15th of each year a list of potentially eligible schools • LEAs must notify the State no later than June 30th of the school year prior if it is newly implementing, or ending its participation in, CEP (deadline extended this year)

17. When must an LEA conduct verification? • LEAs or schools choosing to implement CEP do not have to conduct verification of NSLP applications • BUT if there are some (but not all) schools within the LEA electing CEP, the LEA must still conduct verification in non-CEP schools

18. What counts as “non-federal” funding? • CEP participating LEAs/schools must use non-federal funds for any meal costs in excess of federal reimbursement • Non-federal funds = any funds other than Federal reimbursement available to the school food service fund • Includes (but not limited to): • State revenues (as in 7 CFR 210.17) • Profits from a la carte sales • Cash donations • In-kind contribution funds (including volunteer services)

19. How long is “claiming percentage” valid? • Calculated by school as basis for federal reimbursement at “free meal” rate (ISP x (multiplier) = “claiming percentage”) • Percentages established in the first year may be used for four years • But schools “encouraged” to update numbers annually • During the 2nd, 3rd, and 4th years, the LEA/school may select the higher of: • Identified student percentage from the immediately preceding school year; or • The year prior to the first year of CEP (the original ISP)

20. What is data deadline? • CEP data must be based on enrollment April 1 of prior school year, but CEP and non-CEP schools may collect data at different points in year

21. What happens if ISP drops? • Some LEAs/schools have a “grace year.” • LEAs/schools in year 4 with an identified student percentage of less than 40 percent but not less than 30 percent are permitted to elect for an additional year • LEAs/schools that do not meet the threshold must return to normal counting and claiming procedures the following school year

22. Are private schools eligible for CEP? • Yes, if they otherwise meet the eligibility requirements • But LEA may need to find new data for determining need for equitable services, other items

23. Interaction with Other Programs

24. Can claiming percentage be used for anything else? • CEP claiming percentage may also be used for determining area eligibility for: • Summer Food Service Program • Seamless Summer • Child and Adult Care Food Program (CACFP) at-risk afterschool snacks • CACFPtiering • National School Lunch Program (NSLP) afterschool snacks • Individual CEP percentage may be used for purposes of awarding Fresh Fruit and Vegetable Program (FFVP) funds

25. How does CEP interact with 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

26. How does CEP interact with ESEA? • 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” •  Can use these data for within-district allocations under ESEA Sec. 1113(a)(5)

27. How does CEP interact with ESEA? • However, an LEA “may use another poverty data source” for Title I as long as that source is permitted under ESEA • May conduct own survey, though USDA guidance notes that CEP supposed to reduce burden • Other Title I allocation requirements (e.g. rank and serve) remain the same

28. How does CEP impact “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 • Suggested metric: 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: rank all schools (CEP and non-CEP) based solely on percentage of students directly certified through SNAP (or other direct measure available annually for each school)

29. How does CEP impact 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 • 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

30. How does CEP impact equitable services? • Not every child in a private CEP school automatically generates Title I equitable services funds • ONLY students who live in a participating school attendance area would generate those funds • BUT if proportionality used and CEP school’s poverty percentage is 100%, then every student in private school residing in attendance area WILL generate funds

31. How does CEP affect Title I reporting? • SEA can choose how to identify economically disadvantaged subgroup for purposes of Title I reporting/accountability • SEA can include only “identified students” directly certified for poverty-based services like SES • SEA can use survey data • SEA can choose to 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 poverty

32. What happens if schools/programs collect different data 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, LEAs using direct certification data can access that data on approximately same data it looks at other data for non-CEP schools

33. How does CEP affect E-Rate? • FCC says to use NSLP data from most recent year in which the school did not implement CEP: • “Schools… may use the NSLP eligibility data that they previously submitted to USAC regarding participation in the NSLP for the most recent funding year in which such schools did not participate in the CEO to determine discounts on services received under the E-rate program” • May change (“pending further guidance”)

34. More

35. Where can I find more information on CEP? • USDA CEP: Guidance and Updated Q&As (January 14, 2015) • USDA FNS: “Community Eligibility Provision: Guidance and Q&As” (memo SP 21-2014) • Guidance to be used in absence of final program regulations • USDA FNS: “Community Eligibility Provision: Department of Education Title I Guidance” (memo SP 19-2014) • USDA FNS: “CEP 101” Presentation • FCC: Letter on E-Rate for CEP participants (July 31, 2012) • USDA: Proposed rule on CEP (November 4, 2013)

36. Supplement Not Supplant Surprisingly NotGreatly Affected by Declining Budgets! Brustein & Manasevit, PLLC

37. Supplement not Supplant • Federal funds must be used to supplement and in no case supplant state and local resources Brustein & Manasevit, PLLC

38. “What would have happened in the absence of the federal funds??” Brustein & Manasevit, PLLC

39. Auditors’ Tests for Supplanting • Subpart F: Compliance Supplement Brustein & Manasevit, PLLC

40. 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 Brustein & Manasevit, PLLC

41. Presumption Rebutted! Brustein & Manasevit, PLLC • If SEA or LEA demonstrates it would not have provided services if the federal funds were not available • NO non-federal resources available this year!

42. Fiscal or programmatic documentation to confirm that, in the absence of fed funds, would have eliminated staff or other services in question State or local legislative action Budget histories and information What documentation needed? Brustein & Manasevit, PLLC

43. Must show: • Actual reduction in state or local funds • Decision to eliminate service/position was made without regard to availability of federal funds (including reason decision was made) Brustein & Manasevit, PLLC

44. Rebuttal Example • State supports a reading coach program 2011 -2012 • State cuts the program from State budget 2012 -2013 • LEA wants to support Title I reading coach program 2012 - 2013 Brustein & Manasevit, PLLC

45. Rebuttal Example • LEA must document • State cut the program • LEA does not have uncommitted funds available in operating budget to pick up • LEA would cut the program unless federal funds picked it up • The expense is allowable under Title I Brustein & Manasevit, PLLC

46. Flexibility Exception: 1120A(d) • Exclusion of Funds: • SEA or LEA may exclude supplemental state or local funds used for program that meets intents and purposes of Title I Part A • EX: Exclude State Comp Ed funds Brustein & Manasevit, PLLC

47. Supplement Not Supplant Title III, Part A

48. SUPPLEMENT NOT SUPPLANT PROVISIONS BRUSTEIN & MANASEVIT, PLLC Title I, Part A • …to supplement the funds that would, in the absence of such Federal funds, be made available from non-Federal sources for the education of pupils participating in programs assisted under this part, and not to supplant such funds. ESEA §1120A(b)(1) Title III, Part A • …to supplement the level of Federal, State, and local public funds that, in the absence of such availability, would have been expended for programs for Limited English Proficient (LEP) children and immigrant children and youth and in no case to supplant such Federal, State, and local public funds. ESEA §3115(g)

49. USDE Supplanting Interpretation • Title III funds unallowable for: • Developing and/or administering Title I ELP assessment • NOTE: State may use Title III State Activities funds for: • Developing an ELP assessment separate from ELP assessment required under Title I, or • Enhancing an existing ELP assessment required under Title I in order to align it with the State’s ELP standards under Title III. • Developing and/or administering screening or placement assessments • Providing “core language instruction educational programs and services” for LEP students • Any determination about supplanting is VERY fact specific. BRUSTEIN & MANASEVIT, PLLC

50. From USDE Title III SNS Webinar: • What is the instructional program/service provided to all students? • What does the LEA do to meet Lau requirements? • What services is the LEA required by other Federal, State, and local laws or regulations to provide? • Was the program/service previously provided with State, local, and Federal funds? Based on the answers to the above questions, would the proposed funds be used to provide an instructional program/service that is in addition to or supplemental to an instructional program/service that would otherwise be provided to LEP students in the absence of a Title III grant? BRUSTEIN & MANASEVIT, PLLC