1. Understanding Supplement Not Supplant Under ESSA, IDEA, and Perkins
Bonnie Little Graham, Esq.

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

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

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

5. 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!

6. 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!

7. 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

8. 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

9. 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

10. 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.

11. 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.

12. 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.

13. 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

14. 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.

15. 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

16. 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

17. Supplement not Supplant Pop Quiz17

18. 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?

19. 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?

20. 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?

21. 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?

22. 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?

23. 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?

24. IDEA Supplement Not Supplant

25. 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

26. 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
If LEA meets MOE, then LEA meets supplement/not supplant requirements
No particular cost test
ARRA Guidance, April 2009

27. LEA Supplement Not Supplant (cont.)
Notwithstanding (SNS), (MOE), and (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

28. 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].”

29. CEIS and Supplement Not Supplant
CEIS must supplement any ESEA activities or services. 34 CFR (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

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

31. Perkins Supplement Not Supplant

32. 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.

33. 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?

34. 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.

35. 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.

36. Legal 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 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.