Understanding Supplement Not Supplant Under ESSA, IDEA, and Perkins Bonnie Little Graham, Esq. bgraham@bruman.com www.bruman.com

Supplement not Supplant Federal funds must be used to supplement and in no case supplant (federal) state and local resources

“What would have happened in the absence of the federal funds??”

Auditors’ Tests for Supplanting 2 CFR 200, Subpart F Compliance Supplement

Auditors presume supplanting occurs if federal funds were used to provide services** . . . Required to be made available under other federal, state, or local laws Paid for with non-federal funds in prior year Same service to non-Title I students with state/local funds **Note that the compliance supplement states that these provisions do not apply to IDEA!

Presumption Rebutted! If grantee demonstrates it would not have provided services if the federal funds were not available NO non-federal resources available this year!

To rebut presumption show: Fiscal or programmatic documentation to confirm that in the absence of federal funds, would have eliminated staff/services in question State or local legislative action Budget histories and information

Title I, A Supplement Not Supplant (SNS) Sec. 1118(b)(1) Federal funds must be used to supplement and in no case supplant state, and local resources

Title I, A SNS (cont.) Sec. 1118(b)(2) (NEW) To demonstrate compliance, the LEA shall demonstrate that the methodology used to allocate State and local funds to each school receiving assistance under this part ensures that the school receives all the State and local funds it would otherwise receive if it were not receiving Title I funds. Similar to prior SW standard

Title I, A SNS (cont.) Sec. 1118(b)(3) (NEW) No LEA shall be required to: Identify individual costs or services as supplemental; or Provide services through a particular instructional method or in a particular instructional setting to demonstrate compliance.

Title I, A SNS (cont.) Sec. 1118(b)(4) (NEW) The Secretary may not prescribe the specific methodology a LEA uses to allocate State and local funds to each Title I school.

SNS Draft Regulations 200.72(b)(1)(ii) 3 Methodology Options Weighted Per Pupil Formula Based on characteristics of students (i.e. poverty, ELs, SWDs, and others with educational disadvantage) Distribution Based on Personnel and Non-Personnel Resources Average districtwide salary for each category of school personnel (principals, librarians, school counselors, etc.) Multiply by number of school personal The average districtwide per-pupil expenditures for non-personnel Multiply by the number of students in the school.

SNS Draft Regulations (cont.) 200.72(b)(1)(ii) 3 Methodology Options (cont.) SEA-Established Compliance Test Test must be as rigorous as other approaches (and results in substantially similar amounts of funding) Must be approved through Federal peer review process SEA is not required to establish the test LEA is not required to use the test if established

SNS Draft Regulations (cont.) 200.72(b)(1)(iii) Special Rule An LEA may distribute State and local funds using any methodology that results in the LEA spending an amount of State and local funds per pupil in each Title I school that is equal to or greater than the average amount of State and local funds spent per pupil in non-Title I schools.

Title I, A SNS (cont.) Sec. 1118(b)(5) (NEW) Timeline ESSA is not in effect until July 1, 2017 (per Omnibus) Shall meet the compliance requirement no later than 2 years after enactment of ESSA; and Enactment was December 10, 2015; so 2 years is December 10, 2017 May demonstrate compliance before the end of the 2 year period using prior SNS test

Title I Flexibility Exception: 1118(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

Supplement not Supplant Pop Quiz 17

SNS Pop Quiz Question 1 A schoolwide school paid for a reading software program last year using local funds. This year, the school uses Title I funds to pay for the reading software program. Is this supplanting? Is this allowable?

SNS Pop Quiz Question 2 A schoolwide school paid for an English literacy software program last year using local funds. This year the school uses Title III funds to pay for the English literacy software program. Is this supplanting? Is this allowable?

SNS Pop Quiz Question 3 A targeted assistance school sets up an after school tutoring program. It uses Title I funds for identified Title I students, and local funds for other participating students.        Is this supplanting?        Is this allowable?

SNS Pop Quiz Question 4 An LEA implements a district-wide initiative to cover the costs of advanced placement exams for low-income students. The LEA uses Title I funds to pay the costs for students attending Title I schools, and local funds to pay the costs for students attending non-Title I schools.               Is this supplanting?               Is this allowable?

SNS Pop Quiz Question 5 A state law requires teacher-to-student ratios of 1 teacher for every 30 students within a grade. A schoolwide school has 90 students in third grade, and 3 third grade teachers. One of the teachers is paid with Title I, the remaining two are paid with local funds.                 Is this supplanting?                 Is this allowable?

SNS Pop Quiz Question 6 An LEA with all Title I, schoolwide schools uses district-level Title I funds to pay for a Director of Student Privacy. The central office position advises schools on student privacy issues and complaints.                 Is this supplanting?                 Is this allowable?

IDEA Supplement Not Supplant

SEA Supplement Not Supplant Part B funds must be used to supplement and increase the level of Federal, State and local funds expended for special education and related services provided to children with disabilities, and in no case supplant those Federal, State and local funds. A State may use funds it retains for State admin and other State-level activities without regard to the prohibition on supplanting other funds 34 CFR 300.164

LEA Supplement Not Supplant Part B funds must be used to supplement State, local and other Federal funds (used for providing services to children with disabilities) 34 CFR 300.202 If LEA meets MOE, then LEA meets supplement/not supplant requirements No particular cost test ARRA Guidance, April 2009

LEA Supplement Not Supplant (cont.) Notwithstanding 300.202 (SNS), 300.203 (MOE), and 300.162 (Commingling), funds provided to an LEA may be used for: Services and aids that also benefit nondisabled children Early intervening services High cost special education and related services 34 CFR 300.208

OSEP Policy letter MN Dept of ED, Jan. 30, 2013 “The district would be required to demonstrate that the federal IDEA Part B funds they are requesting to be used for CEIS supplement and do not supplant existing state, local and other federal funds, including ESEA funds, the district is using for [its program].”

CEIS and Supplement Not Supplant CEIS must supplement any ESEA activities or services. 34 CFR 300.226(e) Model example: CEIS and local funds serve total population – CEIS for eligible CEIS students Title I provides Response to Intervention to Title I students and CEIS supplements

IDEA Supplement Not Supplant Exceptions to SNS State Administrative Set-Aside IDEA Regs § 300.704(d) Other State-Level Activities Set-Aside Equitable Services (reverse supplement not supplant) IDEA Regs § 300.133(d) Services and aids that also benefit nondisabled children IDEA Regs § 300.208(a)(1) Early Intervening Services IDEA Regs § 300.208(a)(2) High Cost Fund IDEA Regs § 300.208(a)(3) Schoolwide Funds (only amount consolidated) IDEA Regs § 300.206(a) . 30

Perkins Supplement Not Supplant

Supplanting Prohibition Sec. 311(a): Funds made available under this Act for career and technical education activities shall supplement, and shall not supplant, non-Federal funds expended to carry out career and technical education activities and tech prep program activities.

Supplement Not Supplant Cannot use federal funds to pay for services, staff, programs or materials that would otherwise be paid for with state or local funds. Perkins IV: “improve” programs and the three-year rule?

Perkins Three Presumptions Apply! Used Perkins funds to provide services the SEA or LEA is required to make available under another federal, state, or local law; Used Perkins funds to provide services the SEA or LEA provided with state or local funds in the year prior; Used Perkins funds to provide services for CTE students that the SEA or LEA provides to non CTE students with non Perkins funds.

AEFLA on Supplanting Sec. 241(a) of WIOA: Funds made available for adult education and literacy activities under this title shall supplement and not supplant other State or local public funds expended for adult education and literacy activities.

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