Kristen Tosh Cowan, Esq.Kristen Tosh Cowan, Esq.Brustein & Manasevit, PLLCBrustein & Manasevit, PLLCktoshcowan@bruman.comSpring Forum 2011Spring Forum 2011

Equitable Services Equitable Services to Private School to Private School

Students Students under Title I Part Aunder Title I Part A

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

Commonly Cited ProblemsCommonly Cited Problems

1.1. Inadequate Public Control and Inadequate Public Control and Oversight of FundsOversight of Funds

2.2. Failure to Distribute Set-AsidesFailure to Distribute Set-Asides

3.3. Inadequate evaluation of programInadequate evaluation of program

4.4. Inadequate consultationInadequate consultation

5.5. Third Party Contracts and InvoicesThird Party Contracts and Invoices

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Law and ResourcesLaw and Resources

Statute: Sections 1120Statute: Sections 1120

Title I Regulations Title I Regulations • 34 CFR Part 20034 CFR Part 200

Non-Regulatory GuidanceNon-Regulatory Guidance• Title I: October 17, 2003 Title I: October 17, 2003

www2.ed.gov/programs/titleiparta/psguidance.doc

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Private Schools Private Schools

Ensuring Equitable Services to Private Ensuring Equitable Services to Private School Children: A Title I Resource Tool KitSchool Children: A Title I Resource Tool Kit

ChecklistsChecklists FormsForms WorksheetsWorksheets

Website: Website: http://www2.ed.gov/programs/titleiparta/phttp://www2.ed.gov/programs/titleiparta/ps/titleitoolkit.pdfs/titleitoolkit.pdf

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ESEA Programs with ESEA Programs with Equitable Participation RequirementsEquitable Participation Requirements

Improving Basic Programs Operated by LEAs (Title I, Part A)* Improving Basic Programs Operated by LEAs (Title I, Part A)* (Includes Title I Part A ARRA)(Includes Title I Part A ARRA)

Reading First (Title I, Part B, Subpart 1)Reading First (Title I, Part B, Subpart 1) Even Start Family Literacy (Title I, Part B, Subpart 3)Even Start Family Literacy (Title I, Part B, Subpart 3) Migratory Education Program (Title I, Part C)Migratory Education Program (Title I, Part C) Teacher and Principal Training and Recruiting Fund (Title II, Part A)Teacher and Principal Training and Recruiting Fund (Title II, Part A) Mathematics and Science Partnerships (Title II, Part B)Mathematics and Science Partnerships (Title II, Part B) Enhancing Education Through Technology (Title II, Part D)Enhancing Education Through Technology (Title II, Part D) English Language Acquisition, Language Enhancement, and English Language Acquisition, Language Enhancement, and

Academic Achievement (Title III, Part A)Academic Achievement (Title III, Part A) Safe and Drug-Free Schools and Communities (Title IV, Part A)Safe and Drug-Free Schools and Communities (Title IV, Part A) 2121stst Century Community Learning Centers (Title IV, Part B) Century Community Learning Centers (Title IV, Part B) Innovative Programs (Title V, Part A)*Innovative Programs (Title V, Part A)* Gifted and Talented Students (Title V, Part D, Subpart 6)*Gifted and Talented Students (Title V, Part D, Subpart 6)*

*Require equitable participation, contain their own separate *Require equitable participation, contain their own separate equitable participation provisions, and are not covered by Title IXequitable participation provisions, and are not covered by Title IX

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General Rule -Title IGeneral Rule -Title I

LEA must provide eligible private LEA must provide eligible private school students with special school students with special educational services or other Title I educational services or other Title I benefitsbenefits

Parents and teachers of private Parents and teachers of private school students shall participate, on school students shall participate, on an equitable basis, in parental an equitable basis, in parental involvement and professional involvement and professional developmentdevelopment

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ConsultationConsultation

Consultation: Consultation: Must be “Timely and Meaningful”Must be “Timely and Meaningful”

““Timely”Timely”• BeforeBefore the LEA makes any decisions the LEA makes any decisions

““Meaningful”Meaningful”• Genuine opportunity for parties to Genuine opportunity for parties to

express their viewsexpress their views• View seriously consideredView seriously considered• Not unilateral offer without opportunity Not unilateral offer without opportunity

for discussionfor discussion LEA has final decisionLEA has final decision

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Consultation Must Include:Consultation Must Include: How students’ needs will be identifiedHow students’ needs will be identified What services will be offered What services will be offered How, where and by whom the services will be How, where and by whom the services will be

providedprovided How the services will be assessed, and how How the services will be assessed, and how

assessment results will be used to improve servicesassessment results will be used to improve services The size and scope of servicesThe size and scope of services The amount of funds available for servicesThe amount of funds available for services How and when the LEA will make decisions about

the delivery of services The method or source of poverty dataThe method or source of poverty data The services provided to teachers and familiesThe services provided to teachers and families

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Consultation: Consultation: Third Party ProvidersThird Party Providers

Thorough consideration of private school Thorough consideration of private school officials’ viewsofficials’ views

If LEA disagrees with private school If LEA disagrees with private school officials about the provision of services, officials about the provision of services, LEA must provide written analysis of why LEA must provide written analysis of why officials’ opinion rejectedofficials’ opinion rejected

Written record for appealWritten record for appeal

1111

Consultation:Consultation:Written AffirmationWritten Affirmation

LEAs must obtain written affirmation LEAs must obtain written affirmation from private school officials stating from private school officials stating timely and meaningful consultation timely and meaningful consultation occurred.occurred.

Signed by officials from each school with Signed by officials from each school with participating children, or representativeparticipating children, or representative

Send to SEA and maintain in LEA’s Send to SEA and maintain in LEA’s filesfiles

Example in GuidanceExample in Guidance1212

Consultation: Consultation: Written Affirmation and TimingWritten Affirmation and Timing

Sign Affirmation: When planning and Sign Affirmation: When planning and design of next school year’s program design of next school year’s program completedcompleted

On-going: Consultation continues On-going: Consultation continues throughout implementation and throughout implementation and assessment of servicesassessment of services

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Consultation: Give application?Consultation: Give application?

Guidance (A-11): Guidance (A-11): LEA must provide copy of Title I LEA must provide copy of Title I

application, if private school officials application, if private school officials request itrequest it

1414

Consultation: Consultation: Extent of Attempts?Extent of Attempts?

Annually contact private school Annually contact private school officialsofficials

Invite to meeting – explanation and Invite to meeting – explanation and questionsquestions

Not adequate to merely send letter Not adequate to merely send letter explaining intent of Title Iexplaining intent of Title I

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Documenting ConsultationDocumenting Consultation

LEA must retain documentation that LEA must retain documentation that shows:shows:• Informed private school officials of available Informed private school officials of available

federal programsfederal programs• Engaged in timely and meaningful consultationEngaged in timely and meaningful consultation• Identified private schools’ needsIdentified private schools’ needs• Allocated sufficient funds for private schoolsAllocated sufficient funds for private schools• Provided equitable services and benefitsProvided equitable services and benefits• Evaluated programs and services for Evaluated programs and services for

effectivenesseffectiveness• Adequately addressed problems & complaintsAdequately addressed problems & complaints

1616

Deriving the AllocationDeriving the Allocation

TITLE I , PART ATITLE I , PART A

Equitability:Equitability:Deriving AllocationDeriving Allocation

General Formula:General Formula: Based on number of:Based on number of:

1.1. Private school students Private school students

2.2. From low-income familiesFrom low-income families

3.3. Who reside in Title I-participating Who reside in Title I-participating public school attendance areaspublic school attendance areas

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Calculating Allocation for Instruction: Calculating Allocation for Instruction:

1.1. Rank public school areas: highest to Rank public school areas: highest to lowestlowest

2.2. Identify participating areasIdentify participating areas3.3. Calculate PPA for each areaCalculate PPA for each area4.4. Calculate allocation amount for each Calculate allocation amount for each

areaarea must include nonpublic low-income #must include nonpublic low-income #

5.5. Reserve nonpublic amountReserve nonpublic amount PPA x # of nonpublic low-income in PPA x # of nonpublic low-income in

each areaeach area1919

Calculating Allocation: “Off the Top”Calculating Allocation: “Off the Top”

LEA takes “off the top” reservationsLEA takes “off the top” reservations• Administration for public and privateAdministration for public and private

Capital expensesCapital expenses Admin from third-party providersAdmin from third-party providers

• 20% choice-supplemental services20% choice-supplemental services• 1% parental involvement1% parental involvement• Discretionary:Discretionary:

Professional developmentProfessional development Summer schoolSummer school PreschoolPreschool

2020

Reservation for Districtwide Reservation for Districtwide InstructionInstruction

If LEA reserves for “districtwide If LEA reserves for “districtwide instructional programs for public instructional programs for public elementary and secondary”elementary and secondary”

Then proportional amount goes to Then proportional amount goes to nonpublicnonpublic

34 CFR sect 200.64(a)(2)(i)(A)34 CFR sect 200.64(a)(2)(i)(A)

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ExampleExample

LEA reserves $500,000 for LEA reserves $500,000 for districtwide reading initiativedistrictwide reading initiative

Of all low-income in LEA residing in Of all low-income in LEA residing in participating attendance areas, 5% participating attendance areas, 5% are privateare private

5% of $500,000 to private allocation 5% of $500,000 to private allocation

2222

Applies to:Applies to: Summer schoolSummer school After school programsAfter school programs Reading coachesReading coaches

DOES NOT APPLY TO:DOES NOT APPLY TO: Supplemental educational services Supplemental educational services

(20%)(20%) PreschoolPreschool

2323

Reservation for Teachers Reservation for Teachers and Familiesand Families

If LEA reserves funds for parental If LEA reserves funds for parental involvement or professional involvement or professional developmentdevelopment

Then proportional amount to Then proportional amount to nonpublicnonpublic

34 CFR sect 200.65(a)34 CFR sect 200.65(a)2424

ExampleExample

LEA reserves 1% of $500,000 LEA reserves 1% of $500,000 allocation for parental involvement, allocation for parental involvement, or $5,000.or $5,000.

Of all low-income families residing in Of all low-income families residing in participating attendance area, 5% participating attendance area, 5% are private. Then 5% of $5,000 used are private. Then 5% of $5,000 used for families of participating private for families of participating private school students.school students.

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Professional DevelopmentProfessional Development

For For private schoolprivate school teachers of teachers of participantsparticipants

Not for LEA teachers of participantsNot for LEA teachers of participants Consult over appropriate servicesConsult over appropriate services Private school officials cannot Private school officials cannot

arrange, then submit invoice to LEAarrange, then submit invoice to LEA

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Poverty DataPoverty Data

5 options:5 options:

1.1. Data from same sourceData from same source

2.2. Survey, with extrapolationSurvey, with extrapolation

3.3. Comparable data from different Comparable data from different sourcesource

4.4. ProportionalityProportionality

5.5. Correlated measureCorrelated measure

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ProportionalityProportionality• Applying low-income % of each public school Applying low-income % of each public school

attendance area to number of private school attendance area to number of private school children who reside in that areachildren who reside in that area

Correlated measureCorrelated measure• Determining the proportional relationship Determining the proportional relationship

between two sources and applying that ratio between two sources and applying that ratio to known source or private school studentsto known source or private school students

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Poverty Data: GuidancePoverty Data: Guidance

USDE preferred method: Same USDE preferred method: Same source (FRPL)source (FRPL)

BUT – Legis and regs say equally availableBUT – Legis and regs say equally available

May used >1 methodMay used >1 method• Use comparable income levelsUse comparable income levels• No duplicationNo duplication

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Collect Annually or BienniallyCollect Annually or Biennially

Purpose: to reduce burdenPurpose: to reduce burden Subject to consultationSubject to consultation Not necessary to have uniform Not necessary to have uniform

procedure for all private schoolsprocedure for all private schools

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Distributing the FundsDistributing the Funds

Two options:Two options:

1) 1) PoolingPooling: pool the funds to use for : pool the funds to use for students with greatest educational students with greatest educational need anywhere in LEA; orneed anywhere in LEA; or

2) 2) School-by-SchoolSchool-by-School: funds follow child : funds follow child to private school for educationally to private school for educationally needy child in that schoolneedy child in that school

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Under Pooling OptionUnder Pooling Option

If a private school with students If a private school with students eligible for service chooses eligible for service chooses notnot to to participate, funds generated by low participate, funds generated by low income students in that school income students in that school remain in the pool.remain in the pool.

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What if LEA chooses to “skip” a What if LEA chooses to “skip” a public school on its list?public school on its list?

If LEA meets the 3 requirements in If LEA meets the 3 requirements in order to “skip” public school on its order to “skip” public school on its list, eligible private school students list, eligible private school students who reside in that public school who reside in that public school attendance area still must: attendance area still must:

1) generate funds, and 1) generate funds, and

2) receive services, if eligible.2) receive services, if eligible.

3333

Who gets served??Who gets served??

Eligibility for ServicesEligibility for Services

Who is eligible for services?Who is eligible for services?

1) Reside in participating public school 1) Reside in participating public school attendance area; ANDattendance area; AND

2) Meet sect 1115 criteria2) Meet sect 1115 criteria• educationally needy educationally needy • status eligibility: homeless, Head Start, status eligibility: homeless, Head Start,

ERF, etc.ERF, etc.

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Selection criteriaSelection criteria

Determined by LEA, in consultationDetermined by LEA, in consultation Multiple, educationally-related Multiple, educationally-related

objectiveobjective• Achievement tests, teacher referrals, Achievement tests, teacher referrals,

gradesgrades Preschool-grade 2:Preschool-grade 2:

• Solely on basis of criteria such as Solely on basis of criteria such as teacher judgment, parent interviews, teacher judgment, parent interviews, and developmentally appropriate meansand developmentally appropriate means

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Poverty is NOT a criterionPoverty is NOT a criterion

# of low-income # of low-income ≠ # eligible for ≠ # eligible for serviceservice

3737

Service DeliveryService Delivery

Directly, through private company, or Directly, through private company, or another LEAanother LEA

May be on-site at private school, with May be on-site at private school, with safeguardssafeguards

Neutral, secular and non-ideologicalNeutral, secular and non-ideological Benefit of students, not private Benefit of students, not private

schoolschool

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LEA controls!LEA controls! LEA is responsible for planning, LEA is responsible for planning,

designing and implementing the Title designing and implementing the Title I programI program

Through consultationThrough consultation LEA cannot delegate to private LEA cannot delegate to private

schools or third party contractorsschools or third party contractors

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ExamplesExamples

Instruction provided by LEA Instruction provided by LEA employees or third-party contractorsemployees or third-party contractors

Extended-day servicesExtended-day services Family literacyFamily literacy CounselingCounseling Computer-assisted instructionComputer-assisted instruction Home tutoringHome tutoring Take home-computersTake home-computers

4040

Schoolwide option?Schoolwide option?

NO!NO!

What if child resides in LEA XX, What if child resides in LEA XX, and attends private school in and attends private school in

LEA YY?LEA YY? LEA XX is responsible.LEA XX is responsible. LEA where child resides is LEA where child resides is

responsible for arranging for responsible for arranging for services.services.

May arrange to have services May arrange to have services provided by another LEA and provided by another LEA and reimburse for cost.reimburse for cost.

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Timing of ServicesTiming of Services

Guidance:Guidance: Must begin at same time as public Must begin at same time as public

programprogram If not, LEA should provide additional If not, LEA should provide additional

services during the remainder of the services during the remainder of the year and carry over any unspent year and carry over any unspent funds funds

4343

Agostini: SafeguardsAgostini: Safeguards

Services may be on-site at private Services may be on-site at private school, with safeguardsschool, with safeguards

Guidance: need not mirror NYC Guidance: need not mirror NYC programprogram

Guidance: need not remove religious Guidance: need not remove religious objects from roomobjects from room

Neutral, secular and non-ideologicalNeutral, secular and non-ideological

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Sect 1119 Staff QualificationsSect 1119 Staff Qualifications

Do NOT apply to:Do NOT apply to:• private school teachers or private school teachers or

paraprofessionalsparaprofessionals• third party contractor teachers or parasthird party contractor teachers or paras

DOES apply to:DOES apply to:• LEA teachers teaching private school LEA teachers teaching private school

studentsstudents• LEA paraprofessionals LEA paraprofessionals

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AccountabilityAccountability

Must assess participating private Must assess participating private school studentsschool students• Need Need notnot be state assessment be state assessment• ConsultationConsultation

Compare against relevant adequate Compare against relevant adequate progress measureprogress measure

No school improvement consequences No school improvement consequences (choice, supplemental services, etc.)(choice, supplemental services, etc.)

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How to handle carryover??How to handle carryover??

If equitable services provided, then If equitable services provided, then carryover reverts to regular Title I carryover reverts to regular Title I potpot

If equitable services NOT provided, If equitable services NOT provided, then earmark for private school then earmark for private school services during carryover year, PLUS services during carryover year, PLUS entire new allocationentire new allocation

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Heightened Fiscal Scrutiny Heightened Fiscal Scrutiny on Third Party Contractson Third Party Contracts

USDE State Monitoring:USDE State Monitoring:

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

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

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LEAs must exercise proper oversight LEAs must exercise proper oversight over invoicesover invoices

Invoice expenditures in 2 categories:Invoice expenditures in 2 categories:• Instructional activities and Instructional activities and

administrative costsadministrative costs Within each category, provide detail Within each category, provide detail

sufficient to determine compliancesufficient to determine compliance• Name and salary of each teacher, Name and salary of each teacher,

instructional materials purchased, instructional materials purchased, supervisor’s salary, office expenses, supervisor’s salary, office expenses, travel costs, capital expense type costs, travel costs, capital expense type costs, and feeand fee

5050

Title to equipment purchased by Title to equipment purchased by third party providersthird party providers

Sect 1120(d): Public Control of Funds:Sect 1120(d): Public Control of Funds:

The control of Title I funds and title to The control of Title I funds and title to materials, equipment, and property materials, equipment, and property purchased with such funds, shall be in purchased with such funds, shall be in a public agencya public agency

The public agency shall administer The public agency shall administer Title I funds, materials, equipment, and Title I funds, materials, equipment, and propertyproperty

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