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Presented by Leigh M. Manasevit, Esq. lmanasevit@bruman

Maintenance of Effort, Comparability and Supplement Not Supplant Under Title I. Presented by Leigh M. Manasevit, Esq. lmanasevit@bruman.com. Brustein & Manasevit, PLLC Fall Forum 2012. Maintenance of Effort. Most Directly Affected by Declining Budgets. MOE.

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Presented by Leigh M. Manasevit, Esq. lmanasevit@bruman

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  1. Maintenance of Effort, Comparability and Supplement Not Supplant Under Title I Presented by Leigh M. Manasevit, Esq.lmanasevit@bruman.com Brustein & Manasevit, PLLC Fall Forum 2012

  2. Maintenance of Effort • Most Directly Affected by Declining Budgets Brustein & Manasevit, PLLC

  3. MOE • 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 Brustein & Manasevit, PLLC

  4. MOE: Preceding Fiscal Year • Need to compare final financial data • Compare “immediately” PFY to “second” PFY • EX: To receive funds available July 2013, compare 2011-12 school year to 2010-11 school year Brustein & Manasevit, PLLC

  5. 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 MOE: Failure under NCLB Brustein & Manasevit, PLLC

  6. Analysis for 13-14 Brustein & Manasevit, PLLC

  7. MOE: Waiver • USDE Secretary may waive if: • Exceptional or uncontrollable circumstances such as natural disaster OR • Precipitous decline in financial resources of the LEA Brustein & Manasevit, PLLC

  8. ED Waivers • To State to Grant to LEAs Brustein & Manasevit, PLLC

  9. Comparability • How is this calculated and why does it matter? Legal Authority: Title I Statute: §1120A(c) Brustein & Manasevit, PLLC

  10. 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. • If all are Title I schools, all must be “substantially comparable.” Brustein & Manasevit, PLLC

  11. 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 Brustein & Manasevit, PLLC

  12. 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” Brustein & Manasevit, PLLC

  13. May also meet 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) Brustein & Manasevit, PLLC

  14. Compare: Average of all non-Title I schools to Each Title I school Basis for evaluation: grade-span by grade-span or school by school May divide to large and small schools Brustein & Manasevit, PLLC

  15. Exclusions: • Federal Funds • Private Funds • LEA may exclude state/local funds expended for: • Language instruction for LEP students • Excess costs of providing services to students with disabilities • Supplemental programs that meet the intent and purposes of Title I • Staff salary differentials for years of employment Brustein & Manasevit, PLLC

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

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

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

  19. Auditors’ Tests for Supplanting • OMB Circular A-133 Compliance Supplement • Creates 3 rebuttable presumptions Brustein & Manasevit, PLLC

  20. Auditors presume supplanting occurs if federally funded services were . . . . • Provided with non-federal funds in prior year Brustein & Manasevit, PLLC

  21. 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! Presumption Rebutted! Brustein & Manasevit, PLLC

  22. 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

  23. 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

  24. Rebuttal Example • State supports a reading coach program 2009 -2010 • State cuts the program from State budget 2010 -2011 • LEA wants to support Title I reading coach program 2010 - 2011 Brustein & Manasevit, PLLC

  25. 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

  26. Auditors presume supplanting occurs if federal funds were used to provide services . . . • Required to be made available under other federal, state, or local laws Brustein & Manasevit, PLLC

  27. Can this presumption be rebutted for Title I A? • ED: January 2011 response to B&M inquiry • Yes but : • “while… conceivable…” “…would be extremely difficult…” • “…bar …is very high…” • Level of documentation is sufficient to rebut prior year presumption insufficient Brustein & Manasevit, PLLC

  28. Supplanting Conundrum PartiallyRevisited • August 3, 2012 FAQ • A-18 • Where law has passed to implement flexibility waiver • No presumption • What about other prescriptive fed programs? http://www2.ed.gov/policy/eseaflex/esea-flexibility-faqs.doc Brustein & Manasevit, PLLC

  29. What about state laws required by federal programs? • NCLB • SIG • Waiver Brustein & Manasevit, PLLC

  30. Auditors presume supplanting occurs if. . . • Title I funds used to provide service to Title I students, and the same service is provided to non-Title I children using non-Title I funds. Brustein & Manasevit, PLLC

  31. Cannot be rebutted by lack of funds, but… Brustein & Manasevit, PLLC

  32. 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

  33. How does supplanting apply in a schoolwide program? Brustein & Manasevit, PLLC

  34. Supplement not Supplant • Statute 1114(a)(2)(B): Title I must supplement the amount of funds that would, in the absence of Title I, be made available from non-federal sources. • E-18 in schoolwide guidance • The actual service need not be supplemental. Brustein & Manasevit, PLLC

  35. SNS: • Guidance: School must receive all the state and local funds it would otherwise need to operate in the absence of Federal funds • Includes routine operating expenses such as building maintenance and repairs, landscaping and custodial services Brustein & Manasevit, PLLC

  36. Questions??? Brustein & Manasevit, PLLC

  37. Disclaimer 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, PLLC.  You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances. Brustein & Manasevit, PLLC

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