1. COMMUNITY ELIGIBILITY PROGRAM IN LIGHT OF ESSA Leigh Manasevit, Esq. lmanasevit@bruman.comlmanasevit@bruman.com Julia Martin, Esq. jmartin@bruman.comjmartin@bruman.com Brustein & Manasevit, PLLC Spring Forum 2016 THE

2. AGENDA CEP IN A NUTSHELL STATE AND LEA RESPONSIBILITIES POTENTIAL IMPACT OF ESSA? Brustein & Manasevit, PLLC © 2016. All rights reserved.2

3. CEP IN A NUTSHELL Brustein & Manasevit, PLLC © 2016. All rights reserved.3

4. CEP IN A NUTSHELL 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. Meal costs are federally reimbursed based on poverty data. Brustein & Manasevit, PLLC © 2016. All rights reserved.4

5. WHO CAN PARTICIPATE? LEAs or schools that: –Have an “identified students percentage” (ISP) of at least 40% as of April 1 the prior year May be determined by group of schools to maximize ISP –Agree to serve free breakfast AND lunch to all students –Have a record of administering the programs in accordance with regulations An LEA may participate in the CEP for all schools OR only for some schools Brustein & Manasevit, PLLC © 2016. All rights reserved.5

6. WHO ARE “IDENTIFIED STUDENTS?” Students “certified for free meals through means other than individual household applications” as of April 1 (or other date with permission from FNS) 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 © 2016. All rights reserved.6

7. CALCULATING ISP “Enrolled students” = all 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) Must be at least 40% to participate in CEP –May not round up: guidance says “a percentage of 39.98% does NOT meet the threshold” Brustein & Manasevit, PLLC © 2016. All rights reserved.7 ISP = (Total # of identified students) (number of enrolled students)

8. REIMBURSEMENT Schools/LEAs receive reimbursement at federal free rate based on “claiming percentage” –Remaining meals (equaling up to 100%) reimbursed at “federal paid reimbursement rates” Under regular school meal program, there are three rates: free, reduced-price, and paid –All vary depending on school poverty, location, and meal (breakfast versus lunch versus snacks) and are adjusted from year to year Under CEP, there are two rates: free and paid CEP participating LEAs/schools must use non-federal funds for all meal costs in excess of federal reimbursement Brustein & Manasevit, PLLC © 2016. All rights reserved.8

9. WHAT IS THE “CLAIMING PERCENTAGE?” “Claiming Percentage” represents amount a school/LEA is reimbursed for CEP meals –Round to one decimal place using standard rounding –May not exceed 100% Brustein & Manasevit, PLLC © 2016. All rights reserved.9 ISP x (multiplier) = total % of meals reimbursed at federal free meal reimbursement rate, a.k.a. “claiming percentage”

10. HOW LONG IS CLAIMING PERCENTAGE VALID? Percentages established in the first year may be used for four years –But schools “encouraged” to update numbers annually –During the 2 nd, 3 rd, and 4 th years, the LEA/school may choose the higher of: Identified student percentage from the immediately preceding school year; or The year prior to the first year of CEP (the original ISP) Brustein & Manasevit, PLLC © 2016. All rights reserved.10

11. WHAT IS THE “CLAIMING PERCENTAGE MULTIPLIER?” Currently set at 1.6 through school year 2014-15 –USDA FNS may change the multiplier Guidance says it has no plans to do so Must be between 1.3 and 1.6 according to HHFKA –If multiplier is changed, schools can keep multiplier for 4-year cycle, then change calculation at beginning of new cycle Brustein & Manasevit, PLLC © 2016. All rights reserved.11 ISP x (multiplier) = total % of meals reimbursed at federal free meal reimbursement rate, a.k.a. “claiming percentage”

12. STATE AND LEA RESPONSIBILITIES Brustein & Manasevit, PLLC © 2016. All rights reserved.12

13. STATE RESPONSIBILITIES Collect from LEAs by April 15th a list of potentially eligible schools Notify eligible LEAs by April 15th of their ability to participate Make list of eligible schools/LEAs available on State/USDA website by May 1st and provide a link to USDA Brustein & Manasevit, PLLC © 2016. All rights reserved.13

14. STATE RESPONSIBILITIES LEAs must notify the State no later than June 30 th of the school year prior that it will implement CEP State must confirm an LEA’s eligibility to participate in CEP by reviewing documentation submitted by the LEA to verify that it: –Meets the minimum identified student percentage –Participates in both the NSLP and SBP –Is administering the meal programs in accordance with program regulations Brustein & Manasevit, PLLC © 2016. All rights reserved.14

15. STATE RESPONSIBILITIES Conduct administrative review for at least one CEP school, site, or group in an LEA –Including Reviewing ISP documentation Reviewing names of directly certified students Assessing accuracy of claiming percentages Brustein & Manasevit, PLLC © 2016. All rights reserved.15

16. LEA RESPONSIBILITIES Provide to State by April 15 th of each year a list of potentially eligible schools Notify the State no later than June 30 th of the school year prior if it is newly implementing, or ending its participation in, CEP Brustein & Manasevit, PLLC © 2016. All rights reserved.16

17. LEA RESPONSIBILITIES Verification = checking data on a certain number of NSLP applications to ensure they are accurate LEAs or schools choosing to implement CEP do not have to conduct verification of NSLP applications BUT if there are some (but not all) schools within the LEA electing CEP, the LEA must still conduct verification in non-CEP schools Brustein & Manasevit, PLLC © 2016. All rights reserved.17

18. DATA COLLECTION: ED LEA may conduct its own survey to collect the equivalent of NSLP data, however: –Discouraged –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 © 2016. All rights reserved.18

19. DATA COLLECTION: USDA Encourage LEAs to find data method that “does not mitigate CEP’s paperwork reduction benefit,” e.g. single form Single Form must: –Contain all information required on the school meals application –Contain a disclaimer stating that, in CEP schools, receipt of meals does not depend on households returning the form –Tell households which fields must be completed for students in CEP vs. non-CEP schools –Allow LEAs to: Distinguish between forms from students in CEP versus non- CEP households Cost allocate expenses for form processing Brustein & Manasevit, PLLC © 2016. All rights reserved.19

20. COST SHARING: ED 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 © 2016. All rights reserved.20

21. COST SHARING: USDA Costs for single form processing for students in CEP schools may not be paid from nonprofit school food service account –If food service staff process forms to be used to allocate other funds, must be reimbursed from other sources Brustein & Manasevit, PLLC © 2016. All rights reserved. 21

22. POTENTIAL IMPACT OF ESSA? Brustein & Manasevit, PLLC © 2016. All rights reserved.22

23. ESSA VS. CEP Brustein & Manasevit, PLLC © 2016. All rights reserved.23 ESSA ED SEA LEA CEP USDA STATE SFA

24. 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 © 2016. All rights reserved.24

25. USE OF CEP DATA: ED 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 Brustein & Manasevit, PLLC © 2016. All rights reserved.25

26. ESSA: OTHER DATA SOURCES ESEA Sec. 1113(a)(5) (as amended): –Census data –Free or reduced price lunch –TANF –Medicaid eligibility –Composite of above –LEA may use feeder pattern for secondary schools with majority of affected schools’ approval (currently in guidance, codified in ESSA) Must use the same measure for: –Identifying eligible areas –Ranking areas –Determining allocations 26Brustein & Manasevit, PLLC © 2016. All rights reserved.

27. 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 © 2016. All rights reserved.27

28. 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 said before ESSA passage that 2003 allocation guidance still generally applies Unclear how this will change under ESSA General allocation rules are the same under new law Brustein & Manasevit, PLLC © 2016. All rights reserved.28

29. 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 ED suggests three methods of identifying a “common poverty metric” Brustein & Manasevit, PLLC © 2016. All rights reserved. 29

30. 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)(faux FRL) –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)(direct cert only) –Suggested metric 3: apply 1.6 multiplier to number of students in CEP and non-CEP schools who are directly certified (similar to metric 2, but yields a higher poverty percentage, meaning more schools may be Title I eligible)(faux CEP) Brustein & Manasevit, PLLC © 2016. All rights reserved. 30

31. 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 Brustein & Manasevit, PLLC © 2016. All rights reserved.31

32. CEP DATA AND RANK AND SERVE ESSA gives districts more flexibility on rank and serve –MAY include in rank-and-serve priority ranking high schools with 50% poverty or more (other schools at 75%) Also more flexibility on schoolwide – State may waiver 40% poverty threshold Reminder: CEP groups do NOT have to be grouped for purposes of ranking Brustein & Manasevit, PLLC © 2016. All rights reserved.32

33. CEP AND TITLE I REPORTING LEAs and SEAs must disaggregate data based on subgroup of economically disadvantaged students for both reporting and accountability –Does not change under ESSA –Maintain State ability to set “n-size” ED (March 2015): “For most LEAs, [school lunch] data, including CEP data, may be the best source to identify individual economically disadvantaged students” Brustein & Manasevit, PLLC © 2016. All rights reserved.33

34. CEP AND TITLE I REPORTING SEA can choose how to identify economically disadvantaged subgroup for purposes of Title I reporting/accountability for CEP schools: –Include only “identified students” directly certified for poverty-based services like SES  this will go away following transition to ESSA –Use survey data; or –Base reporting and accountability on all students In this case, “economically disadvantaged” subgroup is same as “all students” subgroup Under NCLB, all students then eligible for services based on poverty  possibly carries over in schools/districts implementing new targeted interventions Brustein & Manasevit, PLLC © 2016. All rights reserved. 34

35. CEP AND TEACHER QUALIFICATIONS SEA must report on qualifications of teachers in schools in top and bottom quartiles –ESSA eliminates HQT requirements, but not reporting ED (2015): 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 © 2016. All rights reserved.35

36. QUESTIONS TO ASK ABOUT POVERTY DATA IN LIGHT OF ESSA What data source are we using to measure poverty? If we have CEP schools, how are we making the data sources comparable (which suggested metric)? Is our data comparable between elementary and secondary schools? Are we comfortable using that data source for ALL purposes? Are we changing schoolwide/rank and serve thresholds? Does that impact CEP or vice versa? Brustein & Manasevit, PLLC © 2016. All rights reserved.36

37. 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 © 2016. All rights reserved.37

38. 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 (*ED 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 © 2016. All rights reserved. 38

39. ESSA AND EQUITABLE SERVICES State must appoint ombudsman to hear school complaints –Likely to also receive complaints about school meals (even though CEP not part of ESSA) Private school may complain in writing if it believes LEA is not providing services/has not conducted appropriate consultation State has the option to bypass LEA to provide services or do through a contractor –Applicable to child nutrition? Unlikely Brustein & Manasevit, PLLC © 2016. All rights reserved.39

40. OTHER POTENTIAL IMPACTS OF ESSA Use of CEP in accountability systems? –States must develop system that rates schools on metrics including At least one “valid, reliable, comparable, and Statewide” indicator of schools quality (law suggests rating of school climate and safety) Other factors as determined by the State –Low-performing districts/schools must craft interventions  Will CEP or school meal quality/participation factor in, either as school quality measure or solution? Brustein & Manasevit, PLLC © 2016. All rights reserved.40

41. WHEN WILL WE HAVE ANSWERS? Healthy, Hunger-Free Kids Act passed 2010 ED published guidance in 2015 ESSA signed into law December 2015 ED has said it will publish select regulations in 2016 Advice on CEP: ???? Brustein & Manasevit, PLLC © 2016. All rights reserved.41

42. RESOURCES USDA FNS: “Community Eligibility Provision: Guidance and Q&As”(memo SP45-2015) (Updated September 2015)“Community Eligibility Provision: Guidance and Q&As ED: “Guidance: The CEP and Selected Requirements under Title I, Part A” (March 2015)Guidance: The CEP and Selected Requirements under Title I, Part A FCC: Updated guidance letter on E-Rate for CEP participants (November 21, 2014)guidance letter USDA: Proposed rule on CEP (November 4, 2013)Proposed rule Brustein & Manasevit, PLLC © 2016. All rights reserved. 42

43. QUESTIONS? Brustein & Manasevit, PLLC © 2016. All rights reserved.43

44. DISCLAIMER This presentation is intended solely to provide general information and does not constitute legal advice or a legal service. This presentation does not create a lawyer-client relationship with Brustein & Manasevit, PLLC and, therefore, carries none of the protections under the D.C. Rules of Professional Conduct. Attendance at this presentation, a later review of any printed or electronic materials, or any follow-up questions or communications arising out of this presentation with any attorney at Brustein & Manasevit, PLLC 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 © 2016. All rights reserved.44