1. Tiffany Winters Kesslar, Esq. tkesslar@bruman.com Brustein & Manasevit, PLLC July 2016

2. 2 Brustein & Manasevit, PLLC © 2016. All rights reserved.

3. Consultation Sec. 1117(a)(1)(A) and (b)  (NEW): The goal of all parties should be to reach an agreement on how to provide equitable and effective programs for eligible private school children.  LEA must provide “timely and meaningful” consultation with appropriate private school officials 3 Brustein & Manasevit, PLLC © 2016. All rights reserved.

4. Consultation (cont.) Sec. 1117(b)(3)  Timely  Before the LEA makes any decisions  Prior to planning for next school year  During the design and development of the program  Meetings shall continue throughout implementation and assessment of services provided under this section  Annual Requirement  A simple letter explaining the intent of the Title I program is not enough, according to the nonpublic school guidance, so  ED suggests invitation to meeting to explain 4 Brustein & Manasevit, PLLC © 2016. All rights reserved.

5. Consultation (cont.) Sec. 1117(a)(1)(A)  Meaningful  Genuine opportunity for parties to express their views  EDGAR 76.652  Views seriously considered  The LEA may initiate consultation with a proposal for services  Final Decisions made by the LEA after consultation 5 Brustein & Manasevit, PLLC © 2016. All rights reserved.

6. Consultation Topics Sec. 1117(b)(1)  Consultation must include: 1. How the LEA will identify the needs of eligible private school children; 2. What services the LEA will offer to eligible students; 3. How, where and by whom the services will be provided; 4. How the LEA will academically assess the services to eligible private school children and how the LEA will use the results of that assessment to improve the Title I services; 5. The size and scope of the equitable services that the LEA will provide; 6 Brustein & Manasevit, PLLC © 2016. All rights reserved.

7. Consultation Topics (cont.) Sec. 1117(b)(1)  Consultation must include: 6. The method or sources of poverty data that the LEA will use; 7. How and when the LEA will make decisions about the delivery of services to eligible private school children, including a thorough consideration and analysis of the views of the private school officials regarding the provision of services through a contract with third-party providers; 8. How, if the LEA disagrees with private school officials regarding provision of equitable services through a contracted third-party provider, the LEA will provide notice, an analysis, and reasons to the private school officials; 7 Brustein & Manasevit, PLLC © 2016. All rights reserved.

8. Consultation Topics (cont.) Sec. 1117(b)(1)  Consultation must include: 9. Whether the agency shall provide services to eligible students directly, through a separate government agency, consortium, entity, or third-party contractor; 10. (NEW) Whether to provide funding through a “pool of funds” or with the proportion of funds allocated under this section; 11. (NEW) When, including the approximate time of day, services will be provided; and 12. (NEW) Whether to consolidate and use Title I Part A funds in coordination with funds from other eligible programs that are dedicated to providing equitable services to private school students. 8 Brustein & Manasevit, PLLC © 2016. All rights reserved.

9.  (NEW) If an LEA disagrees with the views of private school officials with respect to any topic subject to consultation,  The LEA must provide in writing to such private school officials the reasons why the local educational agency disagrees.  Final decision rests with the LEA. 9 Brustein & Manasevit, PLLC © 2016. All rights reserved.

10. Written Affirmation Sec. 1117(b)(5)  LEAs must obtain written affirmation that timely and meaningful consultation occurred  (NEW) LEAs must also give option of signing a written affirmation indicating that timely and meaningful consultation did not occur or that the program design is not equitable with respect to eligible private school children. 10 Brustein & Manasevit, PLLC © 2016. All rights reserved.

11.  (NEW) To help ensure equity, the SEA shall designate an ombudsman (an official) to monitor and enforce these requirements.  After consultation – agreement to be forwarded to ombudsman. 11 Brustein & Manasevit, PLLC © 2016. All rights reserved.

12. 12 Brustein & Manasevit, PLLC © 2016. All rights reserved.

13. General Formula:  Based on number of… 1. Private school students 2. From low-income families 3. Who reside in Title I-participating public school attendance areas Brustein & Manasevit, PLLC © 2016. All rights reserved. 13

14. Proportionate Share Sec. 1117(a)(4)  (NEW) Must be calculated BEFORE any allowable expenditures and transfers by the LEA! Old rule :Private school students also must get equitable share of some set-asides:  Off the top for districtwide instruction  Off the top for parental involvement  Off the top for professional development Brustein & Manasevit, PLLC © 2016. All rights reserved. 14

15. Proportionate Share (cont.) Sec. 1117(a)(4) Do private school students, parents and teachers get an additional portion of districtwide initiatives or other district level set asides as in the past??  Unclear, especially for parental involvement Brustein & Manasevit, PLLC © 2016. All rights reserved. 15

16. 1. Rank eligible public school attendance areas 2. Identify participating areas (i.e. who is getting funds) 3. Calculate Per Pupil Amount (PPA) for each area 4. Calculate allocation amount for each area  Must include nonpublic low-income number 5. Reserve nonpublic amount  PPA x number of nonpublic low-income in each area Brustein & Manasevit, PLLC © 2016. All rights reserved. 16

17.  (NEW) Each SEA must provide notice in a timely manner to the appropriate private school officials in the State of the allocation of funds for educational services and other benefits under this part that the local educational agencies have determined are available for eligible private school children. 17 Brustein & Manasevit, PLLC © 2016. All rights reserved.

18. 18 Brustein & Manasevit, PLLC © 2016. All rights reserved.

19. Distributing the Funds Sec. 1117(a)(4)(J) Two options: 1) Pooling: pool the funds to use for students with greatest educational need anywhere in LEA; or 2) School-by-School: funds follow child to private school for educationally needy child in that school (This codified the previous guidance on this topic.) Brustein & Manasevit, PLLC © 2016. All rights reserved. 19

20.  If LEA provided equitable services in first year…  Then carryover funds revert to regular program pot.  If LEA did not provide equitable services,  Then must earmark funds for services to private school students in the carryover year; and  Use in addition to entire amount of the next year’s equitable services set-aside. 20 Brustein & Manasevit, PLLC © 2016. All rights reserved.

21. ESSA Carryover?? Sec. 1117(a)(4)(B)  (NEW) Funds allocated to a local educational agency for educational services and other benefits to eligible private school children shall be obligated in the fiscal year for which the funds are received by the agency.  What happens to unexpended funds?  What happens to 2016-2017 NCLB carryover? Brustein & Manasevit, PLLC © 2016. All rights reserved. 21

22. 22 Brustein & Manasevit, PLLC © 2016. All rights reserved.

23.  Services MUST benefit students and NOT the private schools. 34 CFR section 76.658.  (NEW) Services, may include:  Special educational services,  Instructional services (including evaluations to determine the progress in meeting such students’ academic needs),  Counseling,  Mentoring,  One-on-one tutoring,  Other benefits under Title I (such as dual or concurrent enrollment, educational radio and television, computer equipment and materials, other technology, and mobile educational services and equipment). Brustein & Manasevit, PLLC © 2016. All rights reserved. 23

24.  (NEW) “Well Rounded Education” Sec. 8101(52)  Such educational services or other benefits, including materials and equipment, shall be secular, neutral, and nonideological. Sec. 1117(a)(2) Brustein & Manasevit, PLLC © 2016. All rights reserved. 24  English, reading or language arts, writing  science, technology, engineering, mathematics,  computer science,  foreign languages,  civics and government,  economics,  arts, music  history, geography,  career and technical education,  health, physical education, and  others as designated by State/LEA

25.  Services for private school children must begin at the same time as services for public school children, according to ED’s Nonpublic School Guidance under NCLB. 25 Brustein & Manasevit, PLLC © 2016. All rights reserved.

26.  Directly, through private company, or another LEA  May be on-site at private school, with safeguards  Neutral, secular and non-ideological Brustein & Manasevit, PLLC © 2016. All rights reserved. 26

27. State Assurances  (NEW) The State must ensure all teachers and paraprofessionals working in a Title I program meet applicable State certification and licensure requirements.  DOES apply to: LEA teachers teaching private school students and LEA paraprofessionals.  Do NOT apply to: Private school teachers or paraprofessionals or third-party contractor teachers or paraprofessionals. Brustein & Manasevit, PLLC © 2016. All rights reserved. 27

28.  LEA controls!  The LEA plans, designs, and implements program.  The LEA controls all funds, title to materials, equipment, and property purchased.  The LEA administers such funds, materials, equipment, and property. Brustein & Manasevit, PLLC © 2016. All rights reserved. 28

29.  The LEA may place equipment and supplies in a private schools for the period of time needed for the program.  Equipment and supplies must only be used for Title I purposes and must be removed without remodeling the private school facility.  The LEA is required to remove the equipment and supplies from the private school if the LEA no longer needs these items to provide the Title I service, or if removal is necessary to avoid unauthorized use of the items for other than Title I purposes. 34 CFR section 76.661. Brustein & Manasevit, PLLC © 2016. All rights reserved. 29

30.  Can the LEA charge administrative costs to the proportionate share? NO.  The administrative costs of operating both public and private school services is from the LEA administrative set- aside.  The proportionate share is only for instructional services to eligible private school students, parents, and teachers. Nonpublic School Guidance, question B-57. 30 Brustein & Manasevit, PLLC © 2016. All rights reserved.

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

32.  A State shall ensure that each subgrantee complies with the requirements in 76.651 through 76.662. Brustein & Manasevit, PLLC © 2016. All rights reserved. 32

33.  An LEA must provide participating private school students with an equitable opportunity to meet the state standards.  However, these standards may not necessarily be aligned with the private school curriculum.  After consultation, the LEA may use other assessment measures that more accurately reflect the progress of those students. 33 Brustein & Manasevit, PLLC © 2016. All rights reserved.

34.  An LEA must determine how services to eligible private school students will be academically assessed and how the results of that assessment will be used to improve those services.  The LEA will normally assess private school children in the subjects in which they receive Title I services.  Title I funds may be used to assess these students, but only to the extent that the assessment is not otherwise conducted for other purposes. 34 Brustein & Manasevit, PLLC © 2016. All rights reserved.

35. 35 Brustein & Manasevit, PLLC © 2016. All rights reserved.

36.  Private school officials have the right to file a complaint with the SEA if they believe that LEA officials have not complied with appropriate legal requirements.  Specifically may complain that:  The LEA did not engage in consultation that was meaningful and timely;  The LEA did not give due consideration to the views of the private school official; or  The LEA did not make a decision that treats the private school students equitably as required by ESSA.  In addition, any dispute involving the poverty data on private school students may be appealed to the state. (Sec. 1117(c)(2). 36 Brustein & Manasevit, PLLC © 2016. All rights reserved.

37.  The SEA is required to have complaint procedures in place that conforms to applicable statute and regulation.  It is up to the LEA and SEA to ensure that private school officials are made aware of complaint procedures.  The private school official must provide the basis of the LEA's noncompliance; and  The LEA must forward the appropriate documentation to the SEA in response.  (NEW) The General Provisions of ESSA (Title VIII) require that an SEA provide a written resolution to a complaint within 45 days. Sec. 8503(a). 37 Brustein & Manasevit, PLLC © 2016. All rights reserved.

38.  (NEW) The SEA must provide the required equitable services under Title I either directly or through third-party contracts if the appropriate private school officials have met two criteria: 1. The private school officials have requested that the SEA provide such services directly; and 2. The private school officials have demonstrated that the LEA involved has not met the legal requirement to provide equitable services to private school students. 38 Brustein & Manasevit, PLLC © 2016. All rights reserved.

39.  If the SEA's resolution is not satisfactory, private school officials may appeal to the U.S. Secretary of Education.  30 days to appeal (or may appeal after SEA 45 deadline passes if unresolved).  ESSA mandates that the Secretary must complete an investigation and resolve the appeal within 90 days.  (NCLB was 120 days) 39 Brustein & Manasevit, PLLC © 2016. All rights reserved.

40.  If an LEA or SEA is prohibited by state law from providing equitable educational services to private school students, or  If the Secretary determines the LEA or SEA has substantially failed or is unwilling to do so,  Then ED will “bypass” the educational agency and assume the responsibility of providing the required services using an appropriate portion of the educational agency’s allocation.  Bypass procedures and appeal rights are under EDGAR 76.670 – 76.677. 40 Brustein & Manasevit, PLLC © 2016. All rights reserved.

41. Statutes and Regulations  NCLB – Section 1120(A)  Regulations 34 CFR 200.62 – 200.67  ESSA – Section 1117  EDGAR Sections 76.650 – 76.677 Applicable Non-Regulatory Guidance  Title I Services to Eligible Private School Children, October 17, 2003  http://www2.ed.gov/programs/titleiparta/psguidance.doc. http://www2.ed.gov/programs/titleiparta/psguidance.doc  Ensuring Equitable Services to Private School Children: A Title I Resource Tool Kit, September 2006  https://www2.ed.gov/programs/titleiparta/ps/titleitoolkit.pdf https://www2.ed.gov/programs/titleiparta/ps/titleitoolkit.pdf Brustein & Manasevit, PLLC © 2016. All rights reserved. 41

43. 43 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 client- lawyer 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.