CEP and Waivers

1. CEP and Waivers How New Initiatives Affect Federal Funding, Reporting, and Accountability Leigh Manasevit, Esq. lmanasevit@bruman.com Julia Martin, Esq. jmartin@bruman.com Brustein & Manasevit, PLLC Spring Forum 2015

2. CEP The Community Eligibility Program Brustein & Manasevit, PLLC

3. 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 Brustein & Manasevit, PLLC

4. 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 Brustein & Manasevit, PLLC

5. 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 Brustein & Manasevit, PLLC

6. 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 Brustein & Manasevit, PLLC

7. 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” Brustein & Manasevit, PLLC

8. 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

9. How CEP Interacts with ESEA Brustein & Manasevit, PLLC

10. 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 Brustein & Manasevit, PLLC

11. 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 Brustein & Manasevit, PLLC

12. 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 Brustein & Manasevit, PLLC

13. 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 Brustein & Manasevit, PLLC

14. 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 Brustein & Manasevit, PLLC

15. 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” Brustein & Manasevit, PLLC

16. CEP Data and Rank and Serve • 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) Brustein & Manasevit, PLLC

17. CEP Data and Rank and Serve • 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

18. 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

19. 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 Brustein & Manasevit, PLLC

20. 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 Brustein & Manasevit, PLLC

21. 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 Brustein & Manasevit, PLLC

22. 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 Brustein & Manasevit, PLLC

23. 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”

24. 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 poverty

25. 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 Brustein & Manasevit, PLLC

26. 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) Brustein & Manasevit, PLLC

27. Waivers – the New Policy Drivers Brustein & Manasevit, PLLC

28. WAIVER STATES • 42 States, the District of Columbia, Puerto Rico, and California’s CORE districts Brustein & Manasevit, PLLC

29. Waivers Pending • Wyoming Brustein & Manasevit, PLLC

30. Waivers Withdrawn & Rejected • Rejected: • California • Iowa • Withdrawn: • North Dakota • Vermont Brustein & Manasevit, PLLC

31. 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 Brustein & Manasevit, PLLC

32. “High Risk” & Revoked Waivers • “High Risk”: • California’s CORE districts, September 2014 • Revoked: • Washington, April 2014 • Failed to include student achievement in teacher and principal evaluations Brustein & Manasevit, PLLC

33. “High Risk” & Revoked Waivers • Oklahoma, August 2014 • Repealed Common Core and failed to replace it with equally rigorous standards • Implemented more rigorous standards in October • Restored in November Brustein & Manasevit, PLLC

34. Non-Waiver States • Montana has not applied for a waiver • Nebraska has now applied Brustein & Manasevit, PLLC

35. New Waiver • New Hampshire • 4 Districts will use pilot competency tests – not statewide assessments Brustein & Manasevit, PLLC

36. 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 Brustein & Manasevit, PLLC

37. 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 Brustein & Manasevit, PLLC

38. 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 Brustein & Manasevit, PLLC

39. 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 Brustein & Manasevit, PLLC

40. 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 Brustein & Manasevit, PLLC

41. 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 Brustein & Manasevit, PLLC

42. Common Core Brustein & Manasevit, PLLC

43. 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 Brustein & Manasevit, PLLC

44. Adopted Slight Changes, But No Repeal • Florida (February 2014) Brustein & Manasevit, PLLC

45. 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 summer Brustein & Manasevit, PLLC

46. Growing Pressure to Repeal • Louisiana • Gov. Bobby Jindal wants Common Core repealed • Jindal 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 suspension • Jindal 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 Brustein & Manasevit, PLLC

47. Growing Pressure to Repeal • New York • More 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 Jersey • Gov. Chris Christie has created a commission to review the effectiveness of Common Core assessments, and the assessments now have less importance in teacher evaluations Brustein & Manasevit, PLLC

48. Growing Pressure to Repeal • Montana • A 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 • Utah • Gov. Gary Herbert had the state attorney general review the standards’ connections to the federal government – A.G. determined they were not illegally adopted Brustein & Manasevit, PLLC

49. PDK/Gallup Poll on Education • 60% of Americans oppose Common Core – too restrictive for teachers • http://pdkintl.org/noindex/PDK_Poll_46.pdf Brustein & Manasevit, PLLC

50. Common Core • Growing Parent Opposition = High level of opt outs • New York • Colorado • Florida • New Mexico • North Carolina • Pennsylvania Brustein & Manasevit, PLLC