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How ESEA Reauthorization will impact LEAs (… and how it won’t). Kristen Tosh Cowan, Esq. Brustein & Manasevit PAFPC Conference April 5, 2011. ESEA Reauthorization- Timing. 2009 and 2010 2011 2012 2013. ESEA Reauthorization. Funding Trends More consolidation

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How ESEA Reauthorization will impact LEAs(… and how it won’t)

Kristen Tosh Cowan, Esq.

Brustein & Manasevit

PAFPC Conference

April 5, 2011

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ESEA Reauthorization- Timing

2009 and 2010




Brustein & Manasevit

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ESEA Reauthorization

Funding Trends

  • More consolidation

  • More competition

Brustein & Manasevit

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ESEA Reauthorization

Standards and Assessments

  • Common Core debate

    • Require or “incentivize”

Brustein & Manasevit

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ESEA Reauthorization


  • Growth Model

  • Subgroup accountability

  • No 100% proficiency

Brustein & Manasevit

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ESEA Reauthorization


  • School improvement – more nuanced

    • Obama & Sen Dems – 4 SIG models for lowest %

    • Republicans – More local flexibility

    • Target interventions to struggling subgroup

    • Choice/ SES – 1 option of many

  • New Rewards Program

Brustein & Manasevit

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ESESA Reauthorization

Teacher Preparation and Evaluation

  • Preparation:

    • Focus on teaching colleges

    • Performance exam for classroom

Brustein & Manasevit

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ESESA Reauthorization

Teacher Preparation and Evaluation

  • Evaluation:

    • Emphasis on outputs

    • Multiple factors, including student assessment data

    • Performance/ merit pay

Brustein & Manasevit

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ESEA Reauthorization

Fiscal Requirements

  • Comparability

    • Close loophole of excluding salary differential to reflect seniority

    • Move to measuring non-federal expenditures/ student

  • Supplement not Supplant

  • Maintenance of Effort

Brustein & Manasevit

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What won’t be changing in reauthorization . . . .

Federal scrutiny, monitoring and audits!

Brustein & Manasevit

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Time and Effort Documentation for Employees Paid with Federal Funds

** #1 greatest area of audit exposure

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Why should you care?

Easy finding for auditors

Unclear, contradictory guidance


Brustein & Manasevit

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OIG Time and Effort Findings:

2006 – Columbus – $2.3 million

2008 – Detroit - $49 million

2010 – Philadelphia - $123 million

Brustein & Manasevit

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QUIZ: Is a district’s employee attendance system sufficient to meet time documentation requirements?


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  • Time and attendance records

  • Payroll records

    • Worked 8:00-4:00

  • Time and effort records

  • Time distribution records

    • Worked 50% on Title I administration and 50% on nonfederal

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QUIZ:If an employee is paid from non-federal money that is used for a match, then is the employee required to keep time and effort records?


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QUIZ:Are classroom teachers who are federally-paid required to keep time and effort records?


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Who must participate?

  • Any employee working on a federal program

    • Not contractors

  • All employees paid with federal funds

  • Some employees paid with non-federal funds

    • Matching

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OMB Circular A-87:If employee works 100% on single cost objective

  • Semi-Annual Certification

    • Signed every six months by supervisor or employee

    • “This is to certify that Kristen Cowan has worked 100% of her time for the period January 1, 2010, through June 30, 2010, on Perkins Administration.”

      Signature of employee:


Brustein & Manasevit

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OMB Circular A-87:If employee works on multiple cost objectives

  • Personnel Activity Reports (PAR)

    • Signed every month by employee

    • “For the month of September 2010, I spent my time 50% on Title I Program Services and 50% on non-federal programs.”

      Signature of Employee:


Brustein & Manasevit

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PARs must:

After-the-fact record

Total activity for which employee compensated

At least monthly

(unless substitute system)

Signed and dated by employee

Brustein & Manasevit

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What else is not going away?

Equitable Services to Nonpublic School Students

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Equitable Services: #1 most common finding of noncompliance in USDE Title I program monitoring

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Commonly Cited Problems

Inadequate Public Control and Oversight of Funds

Failure to Distribute Set-Asides

Inadequate evaluation of program

Inadequate consultation

Third Party Contracts and Invoices

Brustein & Manasevit

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1) LEA controls!

  • LEA is responsible for planning, designing and implementing the Title I program

  • Through consultation

  • LEA cannot delegate to private schools or third party contractors

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2) Deriving Allocation and Set-Asides

Separate “pots”:

  • Instructional Allocation

    • Includes districtwide instruction (set-aside)

  • Parent Involvement (set-aside)

  • Professional Development (set-aside)

  • Administration (LEA and third party provider costs)

Brustein & Manasevit

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Instructional Allocation

  • Based on number of:

    • Private school students

    • From low-income families

    • Who reside in Title I-participating public school attendance areas

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Inadequate Oversight of Third Party Contractors Contracts and Invoices:

  • SEA must require LEA to ensure third party is in compliance

  • Provider give “technical descriptions . . . in detail sufficient to enable the LEA to determine” if requirements met

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  • LEAs must exercise proper oversight over invoices and Invoices:

  • Invoice expenditures in 2 categories:

    • Instructional activities and administrative costs

  • Within each category, provide detail sufficient to determine compliance

    • Name and salary of each teacher, instructional materials purchased, supervisor’s salary, office expenses, travel costs, capital expense type costs, and fee

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With or without reauthorization, LEAs will need to do more with less

So maximize the flexible use of your federal dollars!

Brustein & Manasevit

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Consolidated Administration with less

  • Combine administration for all NCLB programs

  • NOT non-administrative activities

  • Single Cost Objective

  • Semi-annual certification

  • LEA needs approval of SEA

Brustein & Manasevit - March 18, 2011

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Transferability- LEAs not ID SI with less

  • May transfer up to 50% of funds under:

    • Title II Part A (Teacher Training)

    • Title II Part D (Ed Tech)

    • Title IV (Safe and Drug Free)

  • Transfer to Title I Part A or any of the above programs

  • Increases the base on which calculating set asides

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Transferability – LEAs ID for SI with less

Transfer up to 30%

May only use for school improvement activities (1003 or 1116)

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Transferability – How to use with less

Notify SEA

Modify local plans (submit to SEA within 30 days)

Consult with private school officials

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Schoolwide Programs with less

  • Combine federal, state, and local funds into flexible pool to be used for improving entire school

  • Must have at least 40% poverty

  • Conduct needs analysis and develop plan!

  • Not required to:

    • Identify Title I students for targeted services

    • Maintain separate fiscal accounting records to track Title I $ to allowable Title I activity – only to activity in SWP plan

    • Use Title I for supplemental purposes

Brustein & Manasevit

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Schoolwide Programs – Supplement not supplant with less

Ensure that the amount of Title I funds for that year is supplemental to the total amount of state and local resources that school would have received in the absence of Title I

Only look at total nonfederal dollars going into that school – not whether federal funds bought something “extra”

Brustein & Manasevit

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Supplement with lessNot Supplant

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Supplement not Supplant – General Rule: with less

Federal funds must be used to supplement and in no case supplant state and local resources

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Auditors’ Tests for Supplanting funds??”

OMB Circular A-133

Compliance Supplement

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Auditors presume supplanting occurs if federal funds were used to provide services . . .

#1. Required to be made available under other federal, state, or local laws

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Auditors presume supplanting occurs if federal funds were used to provide services . . .

#2: Provided with non-federal funds in prior year

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Presumption Rebutted! used to provide services . . .

  • If SEA or LEA demonstrates it would not have provided services if the federal funds were not available

  • NO state or local resources this year!

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What documentation needed? used to provide services . . .

  • 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

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Documentation must show: used to provide services . . .

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)

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Brustein & Manasevit Spring Forum used to provide services . . .

April 27-29, 2011

Washington, DC

To register:

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Brustein & Manasevit used to provide services . . .

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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. 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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