1. The Every Student Succeeds Act
ESSA Fiscal Changes
The Every Student Succeeds Act
Bonnie Graham, Esq.
November 2017
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2. Title I, A Allocations
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3. ESSA Title I State-level Funding
Title I funding formula remains the same
Maintains 1% cap on State administrative funds (Sec. 1004)
(NEW) Mandatory 7% School Improvement Set-aside (Sec )
(NEW) Optional 3% Direct Student Services Set-aside (Sec A)
NOTE: State must reserve 7% OR the sum of its FY 2016 school improvement reservation plus its FY (g) grant, whichever is greater – drafters assume 7% will be higher (Sec. 1003(a)(1)).
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4. School Improvement Funds Sec. 1003(b)-(d)
(NEW) Mandatory: SEA reserves 7% for School Improvement
95% for grants to LEAs
Formula or Competitive Basis
Grants are for no more than 4 years (may include planning year)
To implement comprehensive and targeted support and improvement activities.
Services may be provided directly by SEA with approval of the LEA
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5. Direct Student Services Sec. 1003A
(NEW) Optional 3% set-aside for Direct Student Services
1% of that 3% for State Administration (1003A(a)(2))
Remainder subgranted to LEAs, with priority to LEAs with high percentage of schools identified for comprehensive or targeted support
To provide funds to schools identified under ESSA
Consultation with LEAs
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6. LEA Use of Funds for Direct Student Services 1003A(c)
1% Outreach and communications to parents re: available services
2% Administration
Remainder on allowable uses of funds
In paying the costs associated with the direct student services the LEA shall—
First, pay such costs for students who are enrolled in schools identified for comprehensive support and improvement
Second, pay such costs for low-achieving students who are enrolled in schools implementing targeted support and improvement plans; and
With any remaining funds, pay such costs for other low-achieving students served by the local educational agency.
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7. LEA Use of Funds for Direct Student Services (cont.) 1003A(c)
(NEW) LEA Use of Funds (cont.)
Allowable expenditures may include:
Academic/CTE coursework aligned to academic / industry standards
Credit recovery;
Post-secondary instruction and examination costs, including Advance Placement and International Baccalaureate test fees;
Transportation of LEAs implementing school choice if not reserved for comprehensive support; and
High Quality Academic Tutoring.
NOTE: State must reserve 7% OR the sum of its FY 2016 school improvement reservation plus its FY (g) grant, whichever is greater – drafters assume 7% will be higher (Sec. 1003(a)(1)).
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8. Direct Student Services (cont.) Sec. 1003A
The LEA has the option of providing tutoring.
(NEW) Each State must:
Compile and maintain and updated list of State-approved high-quality academic tutoring providers that meets specific requirements.
Ensure that each LEA provides an adequate number of high-quality academic tutoring options to provide meaningful choice to parents (if the LEA elects to offer tutoring);
Develop procedures for monitoring the quality of services provided; and
Establish and implement clear criteria for removal if the provider is unsuccessful (including removal).
NOTE: State must reserve 7% OR the sum of its FY 2016 school improvement reservation plus its FY (g) grant, whichever is greater – drafters assume 7% will be higher (Sec. 1003(a)(1)).
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9. Title I New Fiscal Reporting Requirements
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10. SEA/LEA Report Cards Sec. 1111(h)
(NEW) Per-pupil expenditures for federal, State, and local funds
Must be actual expenditures
Disaggregated by source of funds
For each local educational agency and each school for the preceding fiscal year
Updated Dear Colleague, June 28, 2017
Expenditure reporting not required until school year!
Must report on steps to ensure data will be included for next year.
Some Outstanding Issues:
Disaggregation by federal, state and local all separately?
Can separate special education funding?
Can an agency exclude some district level costs like transportation, debt, etc.?
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11. 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
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12. “What would have happened in the absence of the federal funds??”
Prior Title I, A SNS Rule
“What would have happened in the absence of the federal funds??”
3 Presumptions of Supplanting
Required to be made available under other federal, state, or local laws
Provided with non-federal funds in prior year
Provided services to Title I students and the same services were provided to non-Title I students using non-federal funds.
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13. 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
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14. 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.
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15. 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.
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16. 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.
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17. SNS Draft Regulations (cont.) 200.72(b)(1)(ii)
3 Methodology Options (con.t)
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
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18. 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.
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19. 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.
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20. Supplement not Supplant Pop Quiz
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21. 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?
Supplanting? No.
Allowable? Probably, depends on if it’s in the school wide plan? Does it relate to the purpose of program? Did you pay a reasonable price? Procurement process- followed requirements?
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22. 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?
Supplanting? Yes, methodology test does not apply.
Allowable? No.
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23. 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?
Supplanting? No. Strictly methodology.
Allowable? Depends. Only went to eligible kids. Is it part of the plan? Is it necessary/reasonable? Paying a fair price? Documented appropriately?
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24. 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?
Supplanting? Yes. Department of ed has drawn a line. Applies methodology test for school level expenditures. When district level initiative, argument is, if you pay for only title I schools with title I money, it is a violation of the methodology because you’re not distributing local funds in a way that is neutral to title I. This is a violation of the methodology test. DISTINCTION BETWEEN DISTRICT WIDE INITIATIVES AS COMPARED TO SPENDING AT SCHOOL LEVEL
Allowable? Not allowable.
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25. 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?
Supplanting? Most likely not supplanting unless the defined methodology is something about resource allocation among pre-required groups
Different methodologies districts can use to show that distribution of title I funds is neutral. Probably not supplanting- assuming this does not impact methodology, not a violation of supplanting requirement. However, if they follow methodology in distributing money, then not a supplanting issue. FOCUS ON METHODOLOGY
Allowable? Most likely allowable, but must be part of schoolwide plan.
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26. 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?
Supplanting? Not supplanting. Nothing to do with Title I.
Allowable? Not allowable. Allowability is still important.
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27. Comparability Sec. 1118(c) ESSA makes No Change!
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.
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)
If all are Title I schools, all must be “substantially comparable.”
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28. Eligible School Attendance Areas Sec. 1113
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29. Ranking and Serving Sec. 1113(a)(3)
Must Rank First and Serve
Exceeding 75% poverty
Strictly by poverty
Without regard to grade span
(NEW) May include high schools 50% or above poverty.
Then Rank and Serve
At or below 75% poverty
May rank by grade span
Serve strictly in order of rank!
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30. Ranking Options (Strict Percentage)
NCLB Ranking by Strict %
ESSA Ranking w/50% HS
School
Poverty Rate
# Poverty Students
Albemarle ES
92% 82
Lincoln Middle School
87% 90
Roosevelt ES
79% 40
Scott ES
74% 56
Washington High School
70%
160
Robins Charter ES
59%
119
Key Middle School
58% 47
Brennan High School
52% 92
Smith High School
49% 15
School
Poverty Rate
# Poverty Students
Albemarle ES
92% 82
Lincoln Middle School
87% 90
Roosevelt ES
79% 40
Washington High School
70%
160
Brennan High School
52% 92
Scott ES
74% 56
Robins Charter ES
59%
119
Key Middle School
58% 47
Smith High School
49% 15

31. Targeted Assistance Schools Sec. 1115(a)-(b)
Must identify “Title I students”
Students identified as failing or at risk of failing state standards (some automatically eligible)
NOT – based on poverty!
(NEW) In the past services had to be supplemental; however, the supplement not supplant rule has changed.
Now, services must benefit eligible students.
Must ensure Title I funds are used to benefit identified students (allocability and allowability of Title I funds)
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32. Schoolwide Requirements Sec. 1114(a)(1)-(2)
Consolidate and use funds, together with other federal, state, and local funds to upgrade the entire educational program of a school
Pre-requisite: 40% poverty
(NEW) State may waive (previously waivable only by the Secretary, Secretary may still waive under Sec. 8401).
Not required to identify:
Eligible students; or
Individual services as supplemental.
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33. Schoolwide Use of Funds Sec. 1114(c) and (e)
(NEW) SW funds may be used for:
Preschool Programs; and
Dual or Concurrent Enrollment:
Training for teachers;
Professional Development;
Tuition and fees, books, required instructional materials, innovative delivery methods; and
Transportation.
(NEW) Services may be delivered by non-profit or for profit third party servicers.
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34. School Improvement Allowability (1003 Funds)
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35. School Improvement Allowability
Can school improvement funds be used on non-Title I schools identified for comprehensive or targeted support?
Yes!
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36. Identification of Schools Sec. 1111(c)(4)(D)
(NEW) Two levels of improvement
Targeted Support and Improvement
Comprehensive Support and Improvement
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37. Targeted Support and Improvement Sec. 1111(d)(2)
(NEW) Every year, the SEA must:
Notify each LEA of any school in which any subgroup of students is consistently underperforming; and
Ensure the LEA provide notification to the school re: subgroup(s) identification.
Applies to all public schools, not only Title I schools
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38. Comprehensive Support and Improvement 1111(c)(4)(D)
(NEW) States must establish a methodology for identifying schools for comprehensive support that must include:
At least the lowest performing 5% Title I schools;
All public high schools in the State failing to graduate 1/3 or more of their students; and
Title I schools in which any subgroup, on its own, would be identified as lowest-performing 5% and has not improved in a number of years (as defined by the State) and the school has previously been identified for targeted support and improvement.
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39. Improvement Activities
School Support Teams (Sec. 1003)
With LEA approval, SEAs can provide services directly through:
School support teams;
Educational service agencies; or
Nonprofit or for-profit external providers with expertise in using evidence-based strategies to improve student achievement, instruction, and schools.
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40. Improvement Activities (cont.)
Public School Choice Sec. 1111(d)(1)(D)
(NEW) A LEA may provide all students enrolled in an identified school the option to transfer to another public school.
Priority given to lowest-achieving children from low income families.
Remain in that school until he/she has completed the highest grade
LEA must provide sufficient number of options to provide a meaningful choice for parents.
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41. Public School Choice Funding Sec. 1111(d) and 1003A(e)
(NEW) 5% of Title I, A allocation for Public School Choice Transportation OR
(NEW) 1003(A) funds may be used for school choice transportation only if the LEA does not reserve 5% for 1111(d) transportation.
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42. LEA Reservation of Funds Sec. 1113
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43. LEA-level Set-Asides Sec. 1113(c)
Necessary and Reasonable Amount (calculated before allowable expenditures and transfers)
Homeless Children and Youths
(NEW) Use to apply only to homeless students in non-participating Title I schools; however that language was removed.
Now, this set-aside may be used for all homeless students.
Children in local institutions for neglected children
Children in local institutions for delinquent children and neglected or delinquent children in community day programs, if appropriate
Early childhood education programs
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44. LEA-level Set-asides (cont.)
1% Parent and Family Engagement Sec. 1116(a)(3)
(NEW) 90% of that amount must go to schools.
Previously 95%
Exception for LEA where 1% less than $5,000
(NEW) 5% of Title I, A allocation for Public School Choice Transportation
5% Financial Incentives and Rewards Sec. 1113(c)(4)
To attract and retain qualified and effective teachers who serve in schools identified for comprehensive and targeted support and improvement
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45. Participation of Children Enrolled in Private Schools Sec. 1117

46. Expenditures/Proportionate Share, Sec. 1117(a)(4)
(NEW) Proportionate Share Formula:
LEA determines the participating public attendance school areas.
LEA determines number of children from low-income families residing in each participating area who attend public and private schools.
LEA determines proportion of children in private schools.
LEA applies the private school proportion to the LEA’s total Title I allocation to determine the equitable services proportionate shared.

47. Expenditures/Proportionate Share, Example
(NEW) Proportionate Share Formula (assuming LEA received $1M Title I Funds:
Public School Attendance Area
Public School Low-Income Children
Private School Low Income Children
Total Low Income Children A
500
120
620 B
300 9
309 C
200 6
206 D
350 15
365
Total
1,350
150
1,500
Proportionate Share
90% = $900,000
10% = $100,000

48. Expenditures/Proportionate Share (cont.) Sec. 1117(a)(4)
(NEW) Proportionate Share must be calculated BEFORE any allowable expenditures or transfer by the LEA!
(NEW) That set-aside includes:
Administrative costs for equitable services (reasonable and necessary out of this set-aside)
Parental Involvement (Proportionate amount of 1% Total Title I allocation)
Professional Development
All other activities for eligible private school students.
Clarified in November Fiscal Guidance.

49. 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.)

50. Carryover Sec. 1117(a)(4)(B)
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.
(NEW) There may be extenuating circumstances in which an LEA is unable to obligate all funds within the timeframe.
Under these circumstances, funds may remain available for the provision of equitable services under the respective program during the subsequent school year.

51. Other ESSA Fiscal Changes
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52. Title V – Transferability Sec. 5103
Now allows SEAs or LEAs to transfer all of their funds under Title IIA, Title IVA, or Sec. 4204(c)(3) between those provisions, and into (but not out of) Title I Parts A, C or D, Title IIIA, or Title VB.
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53. Maintenance of Effort (MOE) Sec. 1118(a) and 8521
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.
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54. MOE Consequences Sec. 8521(b)
SEA must reduce amount of allocation in the exact proportion by which LEA fails to maintain effort below 90%.
Calculate using total expenditures and per pupil
The amount of the reduction would be the lesser penalty of the two calculations.
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55. MOE Consequences (cont.) Sec. 8521(b)
(NEW) LEA is not subject to sanctions for failing to maintain 90% effort for one year (either combined fiscal per student or aggregate State and agency expenditures) provided it has not failed to meet MOE for one or more of five immediately preceding fiscal years.
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56. MOE Waiver Sec. 8521(c)
Secretary of Education may waive MOE if “equitable”:
Exceptional or uncontrollable circumstances, such as a natural disaster; or
(NEW) a change in the organizational structure of the LEA; or
A precipitous decline in the financial resources of the LEA.
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57. ED Resources ED webpage! http://www.ed.gov/essa
Dear Colleague letters, links to Federal Register notices, FAQs, etc.
Can sign up for news on ESSA
ED address:
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58. QUESTIONS?
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59. 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.
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