Leigh Manasevit Brustein & Manasevit 3105 South Street NW Washington, DC 20007 (202) 965-3652

1. USDE Recent Monitoring and Enforcement and Impact of New Title III Interpretations in Title IMASFPSLansing, MichiganNovember, 2008 Leigh Manasevit Brustein & Manasevit 3105 South Street NW Washington, DC 20007 (202) 965-3652 www.bruman.com lmanasevit@bruman.com

2. Oversight of Federal Programs:Who might come knocking? • USDE Program Office (SASA; OSEP) • Routine monitoring • Special focused monitoring • USDE Office of Inspector General (Audit; Investigative Unit) • State Education Agency (SEA) • Single Auditors

3. Program Office Monitoring • State Administered Programs • Federal states • States districts

4. SASA Monitoring Guide – 2008 Continues: Overarching Requirement: “SEA Sub-Recipient Monitoring” https://www.ed.gov/admins/lead/account/monitoring/monitorinindicators0708.pdf

5. SASA Monitoring Guide – 2008(cont.) • Standards and Assessments Inclusion • SWD • LEP • Data Quality • LEA Report Cards • Paraprofessionals

6. SASA Monitoring Guide – 2008(cont.) • Parental Involvement • Choice • SES • Schoolwide • Plan Components • Targeted Assistance • TAS Program Elements • Allocations

7. SASA Monitoring Guide – 2008(cont.) • Ranking and Serving • Skipping Schools • Setasides • Equitable Services • Regular Supervision of Contractors • MOE • Comparability • Supplanting

8. NEW FISCAL MONITORING!! • In the works? NOT SO MUCH. • Cross-Cutting • Conducted by OCFO (James Evans) • Planned start date?

9. NEW: Title III joined with Title I monitoring • Title III moved • From Office of English Language Acquisition (OELA) • To Student Achievement and School Accountability (SASA) • “coordinated, consistent, and comprehensive system for administering” and monitoring

10. Title III “Interpretations”Federal Register, October 17, 2008http://frwebgate4.access.gpo.gov/cgi-bin/PDFgate.cgi?WAISdocID=125433417020+0+2+0&WAISaction=retrieve 10 “Final Interpretations” Title III Interaction with Title ITitle III Supplanting Interpretationhttp://www.thompson.com/images/thompson/nclb/titleiii/title-iii-sns-oct-2-2008.pdf

11. Title III “Interpretations”Federal Register, October 17, 2008 • Interpretation 1 • All LEP students served by Title III assessed for English proficiency annually in speaking, listening, reading, and writing No banking of proficient score in 1 domain

12. Title III “Interpretations”Federal Register, October 17, 2008 • Interpretation 2 • Under AMAO 1 – Progress of group towards proficiency AMAO 2 – Increase in proficiency percentage Permits use of composite score across domains

13. Title III “Interpretations”Federal Register, October 17, 2008 • Interpretation 3 • AMAO 1 Towards Proficiency • AMAO 2 Increase in Proficiency Percentage • AMAO 3 Title I AYP • All Title III served students included – AMAO I and AMAO 2 are not mutually exclusive

14. Title III “Interpretations”Federal Register, October 17, 2008 • Interpretation 3 (cont.) • Two Exceptions • AMAO 1 may exclude if no participation in 2 ELP assessments • AMAO 3 may exclude Title I exclusions (Recently arrived)

15. Title III “Interpretations”Federal Register, October 17, 2008 • Interpretation 4 • AMAO 1 two data points option • Caution does not apply to AMAO 2!

16. Title III “Interpretations”Federal Register, October 17, 2008 • Interpretation 5 • AMAO 2 definition of proficiency for Title III may be different than for Title I to exit subgroup Result – may be proficient for Title I not for Title III

17. Title III “Interpretations”Federal Register, October 17, 2008 • Interpretation 5 (cont.) Caution:If remaining in Title III must get services Caution: Does not affect residual inclusion issue Noteworthy: ED thinks this is a bad idea but responded to “overwhelming misunderstanding of and opposition… as well as concerns… [of] congressional staff…”

18. Title III “Interpretations”Federal Register, October 17, 2008 • Interpretation 6 • State may use Title I minimum size for AMAOs and apply to LEAs as well Caution: Not cohorts of LEP students

19. Title III “Interpretations”Federal Register, October 17, 2008 • Interpretation 7 • AMAO 3: Title I AYP Maybe measured only on Title IIIserved students (or total Title I LEP subgroup) Caution:Secretary’s “strong preference” to use the same criteria

20. Title III “Interpretations”Federal Register, October 17, 2008 • Interpretation 8 • Cohorts for AMAOs – Option Must be based only on time in program Not Allowed: - Current Proficiency - Individual Ability - Time in U.S.

21. Title III “Interpretations”Federal Register, October 17, 2008 • Interpretation 9 • States’ discretion to determine AMAO measurements for consortia

22. Title III “Interpretations”Federal Register, October 17, 2008 • Interpretation 10 • States must oversee and assure all subgrantees comply with all three AMAOs

23. Title III Supplanting Interpretation • Title III funds unallowable for • Title I language proficiency assessment • Core language instruction programs • Title III Non-Supplant includes other Federal Funds

24. Office of Inspector General Keeping everyone busy. . .

25. Audits over last 18 months . . . • Columbus OH – $2.3 million • Time and effort records in schoolwide • San Diego CA - $1.9 million • Charging early retirement to fed without prior approval

26. Elizabeth NJ – • Unsupported salary and non-salary expenses - $822,796 • Unallowable costs - $618,392 • Supplanting - $505,737 • Insufficient internal controls

27. Chicago, IL – at least $16.8 million • Ohio • Arizona • Comparability

28. Pending audit: • Urban district • DRAFT audit report • Lack of time and effort records • $39.1 million

29. OIG Work Plan 2008 • New Programs, Programs Nearing Reauthorization • IDEA • Adult Education and Family Literacy • Grant/Contract Awards, Performance and Monitoring • Continuing Problems with • Oversight and Monitoring • Corrective Action • Fraud Prevention • Contract and Procurement

30. OIG Work Plan 2008 (cont.) • Planned Reviews of SEA/LEA Procurement Practices • Data Integrity

31. NEW: Congressional Scrutiny!! Announced May 2008

32. Congressional Inquiry • Republican demand for answers • OIG and GAO must “undertake a thorough analysis of what safeguards are in place to protect taxpayer dollars and whether those safeguards are effective.”

33. OIG/ GAO must ask: What processes are in place to ensure monitoring: • Federal oversight of states and districts • State oversight of districts • District oversight of schools • Program AND fiscal requirements!

34. Do grantees correct current year and recurring findings identified through monitoring? • Do these findings inform future monitoring plans?

35. Emerging Compliance Issues Maintenance of Effort Comparability Supplanting in Schoolwides

36. Title I Fiscal Guidance (February 08) • www.ed.gov/programs/titleiparta/ fiscalguid.doc • Maintenance of Effort (MOE) • Comparability • Supplement not Supplant • Carryover • Consolidating Funds in Schoolwide • Grantbacks

37. Maintenance of Effort

38. MOE: The NCLB Rule • The combined fiscal effort per student or the aggregate expenditures of the LEA • from state and local funds • from preceding year must not be less than 90% of the second preceding year.

39. MOE: Preceding Fiscal Year • Need to compare final financial data • Compare “immediately” PFY to “second” PFY • EX: To receive FY2005 funds (available July 2005), compare FY2004 (2004-05) to FY2003 (2003-04)

40. MOE: Failure under NCLB • SEA must reduce amount of allocation in the exact proportion by which LEA fails to maintain effort below 90%. • Reduce all applicable NCLB programs, not just Title I

42. MOE: Waiver • USDE Secretary may waive if: • Exceptional or uncontrollable circumstances such as natural disaster OR • Precipitous decline in financial resources of the LEA

43. Comparability

44. General Rule- §1120A(c) • An LEA may receive Title I Part A funds only if it uses state and local funds to provide services in Title I schools that, taken as a whole, are at least comparable to the services provided in non-Title I schools. • Reasonable variance is ok (10%)

45. If all are Title I schools, all must be “substantially comparable.” • Reasonable variance ok (>10%)

46. Timing Issues • Guidance: Must be annual determination • YET, LEAs must maintain records that are updated at least “biennially” (1120A(c)(3)(B)) • Review for current year and make adjustments for current year

47. Written Assurances • LEA must file with SEA written assurances of policies for equivalence: • LEA-wide salary schedule • Teachers, administrators, and other staff • Curriculum materials and instructional supplies • Must keep records to document implemented and “equivalence achieved”

48. Demonstrate “equivalence achieved” through: • Student/ instructional staff ratios; • Student/ instructional staff salary ratios; • Expenditures per pupil; or • A resource allocation plan based on student characteristics such as poverty, LEP, disability, etc. (i.e., by formula) • Need only meet under 1 approach

49. How to measure?? Compare: • Average of all non-Title I schools to • Each Title I school

50. For example: Using student/ instructional staff ratios • Average of all non-Title I schools = 10:1 • Title I schools: • Lincoln: 10:1 • Washington: 9:1 • Madison: 11:1 • Jefferson: 12:1