1. The Community Eligibility Program Under the Current Administration
Leigh Manasevit, Esq.
Kelly Christiansen

2. 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

3. Participation

4. Who can participate? LEAs or schools that:
Have an “identified students percentage” (ISP) of at least 40% as of April 1st the prior year
May be determined by groups 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

5. Who are “identified students?”
Students “certified for free meals through means other than individual household applications”
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

6. How is the ISP calculated?
(Total # of identified students)
ISP =
(number of enrolled students*)
*“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”

7. Special Rules for Groups
(Total # of identified students for all schools in group)
Group ISP =
(number of enrolled students for all schools in group)
If schools join or leave group, it is considered a new group and new ISP must be calculated
Also applies if there are significant changes (i.e., grades removed, schools merged)
Does not apply if students are just moved around within LEA

8. Special Rules for New Schools
May participate if:
ISP and total enrollment is available before claiming begins
School meets eligibility requirements (on its own or as part of a group)
Can use data from a date later than April 1st to establish eligibility with FNS permission
If data is not available, school may not participate

9. If student population changes, when must ISP be recalculated?
For LEAs participating district wide:
If the LEA’s attendance area changes
If composition of schools in the LEA changes but attendance area remains the same, ISP recalculation is not necessary
For multiple schools participating as a group:
When a school or schools are added to or removed from a CEP group
For individual schools participating:
If the school’s attendance area changes
Mid-year changes to the student population:
Recalculations not required mid-year
If changes occur mid-year, the LEA/school(s) may continue claiming meals using existing ISP for remainder of school year

10. Where to get data?
From relevant State agencies (especially SNAP and Medicaid-administering agencies)
LEAs must run direct certification matches at least 3 times per year
Not required to run additional matches to support CEP

11. CEP Timeline April 1st: April 15th: May 1st:
LEA conducts data “matches” or collects other eligibility data
April 15th:
States provide eligibility information to LEAs who can participate LEA-wide
LEAs provide school-level eligibility information to State
May 1st:
State posts list of eligible (and near-eligible) schools and LEAs on website. Provides link to USDA

12. CEP Timeline, cont. June 30th:*
LEAs notify State of intent to participate in CEP (or withdraw). LEAs must submit identified student and enrollment data to confirm eligibility.
*Note: this deadline has been extended as late as August 31st in recent years

13. Reimbursement

14. How Expenses are Reimbursed
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

15. “Non-federal funding”
CEP participating LEAs/schools must use non-federal funds for all meal costs in excess of federal reimbursement
Non-federal funds = any funds other than Federal reimbursement that are available to the school food service fund
Includes (but not limited to):
State revenues
Profits from a la carte sales
Cash donations
In-kind contribution funds (including volunteer services)

16. 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%
ISP x (multiplier) = total % of meals reimbursed at federal free meal reimbursement rate, a.k.a. “claiming percentage”

17. 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 2nd, 3rd, and 4th 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)

18. What is the “Claiming Percentage Multiplier?”
ISP x (multiplier) = total % of meals reimbursed at federal free meal reimbursement rate, a.k.a. “claiming percentage”
Currently set at 1.6
USDA FNS may change the multiplier 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

19. What happens if ISP drops?
Some LEAs/schools have a “grace year”
LEAs/schools in year 4 of cycle with an identified student percentage of less than 40 percent but not less than 30 percent are permitted to elect for an additional year
LEAs/schools that do not meet the threshold must return to normal counting and claiming procedures the following school year

20. Other Uses for the Claiming Percentage
CEP claiming percentage may also be used for determining area eligibility for:
Summer Food Service Program
Seamless Summer
Child and Adult Care Food Program (CACFP) at-risk afterschool snacks
CACFP tiering
National School Lunch Program (NSLP) afterschool snacks
Individual CEP percentage may be used for purposes of awarding Fresh Fruit and Vegetable Program (FFVP) funds

21. Program Implementation

22. 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

23. State Responsibilities
Conduct administrative review for at least one CEP school, site, or group in an LEA
Including
Reviewing ISP documentation
Reviewing a minimum of 10 percent of student names or a statistically valid sample of directly certified students
Assessing accuracy of claiming percentages

24. State Approval Process
LEAs must notify the State no later than June 30th of the school year prior that it will implement CEP
A State agency 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

25. LEA Responsibilities
Must provide to State by April 15th of each year a list of potentially eligible schools
LEAs must notify the State no later than June 30th of the school year prior if it is newly implementing, or ending its participation in, CEP

26. Verification
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

27. Data Collection

28. 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
May conduct own survey
though USDA guidance notes that CEP is supposed to reduce burden

29. Data Surveys: 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

30. 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

31. 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

32. CEP and ESEA

33. 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

34. Data Collection Deadlines
CEP reimbursement rate based on data collected April 1 of previous school year (unless LEA chooses to use count from earlier in grant cycle)
If CEP and Non-CEP data are collected at different times, three options for purposes of ED allocations:
LEA can use CEP data from April 1 for CEP schools and NSLP data for non-CEP schools so long as both occur during same year
LEA can use count of NSLP applications and direct certification data accessed as of approximately April 1
For Title I purposes only, LEAs using direct certification data can access that data on approximately the same date it looks at other data for non-CEP schools
LEA may not use older pre-CEP data to allocate funds

35. 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

36. 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)
Latest allocation guidance published as part of new general ESSA fiscal guidance in November 2015
Says earlier guidance on use of CEP data still applicable

37. 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”

38. 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)

39. 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

40. 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 waive 40% poverty threshold
Reminder: CEP groups do NOT have to be grouped for purposes of ranking

41. 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

42. 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

43. CEP and Equitable Services
Not every child in a private CEP school automatically generates Title I equitable services funds
ONLY students who live in a participating public school attendance area would generate those funds

44. 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 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”

45. CEP and Title I Reporting
SEA can choose how to identify economically disadvantaged subgroup for purposes of Title I reporting/accountability for CEP schools:
Use survey data; or
Base reporting and accountability on all students in a CEP school
In this case, “economically disadvantaged” subgroup is same as “all students” subgroup

46. 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): To identify quartile for a CEP schools, 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 use to allocate funds

47. Potential Changes in the New Administration

48. Potential Changes to CEP Multiplier
USDA has the ability to set CEP multiplier anywhere between 1.3 and 1.6
Obama administration said repeatedly it would keep it at 1.6
No change to multiplier this year
Final CEP regulations published in July 2016 attempt to set 1.6 as default multiplier in final regulation
But may still be modified by administration

49. Impact of Potential Multiplier Change
Impact on Timing
Would come after most schools/LEAs have committed to CEP participation for the year
Statutory deadline is June 30th
Has been extended to August 31st in recent years
LEAs/schools can end participation any time
But this could be disruptive for families
Schools/LEAs can keep claiming percentage for 4-year cycle, so would impact only those starting a new cycle

50. Impact of Potential Multiplier Change
Impact on Reimbursement
ISP x (multiplier) = total % of meals reimbursed at federal free meal reimbursement rate, a.k.a. “claiming percentage”
Changing multiplier from 1.6 to 1.3 would significantly impact reimbursement

51. Impact on ESEA
CEP numbers can be used for many purposes including within-State allocations, identifying economically disadvantaged subgroup for reporting
Likely won’t be affected since most calculations made using numbers of “identified” or directly certified students
But rank and serve could be impacted
Can compare CEP and non-CEP schools using direct cert data only, direct cert with multiplier, or direct cert with multiplier compared with FRL data
Biggest impact will be on LEAs that use the third option

52. Impact on ESEA Teacher Qualifications
SEA and LEA must report on qualifications of teachers in schools in top and bottom quartiles
ED (2015 CEP guidance): To identify quartile for a CEP school, an LEA may use either:
Direct certification data x 1.6 multiplier in CEP schools, or
Direct certification data only (across all schools)

53. Likelihood of Changes?
Administration modifications are relatively easy to do
Multiplier already needs to be republished each year
Could tweak regulations through regular rulemaking process
New guidance could modify the way programs are executed
If instructed by Congress to review regulations with an eye to lowering administrative burden/cost, could make additional changes
Most likely changes to meal pattern requirements, including whole grain and sodium standards

54. Statutory Modifications?
Much, much harder!
Need to find time on Congressional calendar
Need to find agreement among members (Senate Agriculture Democrats, House Democratic leadership vigorously oppose more changes)
Need to bring legislation through House and Senate processes
Is this a priority? Nope!
Likely to stay under the radar for the time being

55. Resources
USDA FNS: “Community Eligibility Provision: Guidance and Q&As”(memo SP ) (Updated September 2015)
ED: “Guidance: The CEP and Selected Requirements under Title I, Part A” (March 2015)
USDA Community Eligibility Resource Center:
USDA Final Rule on Community Eligibility (July 2016):

56. Questions?

57. 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.