1. Requirements and Interactions Julia Martin jmartin@bruman.com Brustein & Manasevit, PLLC Fall Forum 2015 The

2.  What is the Community Eligibility Program?  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  Part of Healthy, Hunger-Free Kids Act of 2010 (Sec. 104(a))  Phased in as a pilot program starting in 2011; available in all States as of 2014 Brustein & Manasevit, PLLC © 2015. All rights reserved. 2

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4.  LEAs or schools that:  Have an “identified students percentage” (ISP) of at least 40% as of April 1 the prior year  Agree to serve free breakfast AND lunch to all students  Have a record of administering the programs in accordance with regulations Brustein & Manasevit, PLLC © 2015. All rights reserved. 4

5.  An LEA may participate in the CEP for all schools OR only for some schools.  40% identified students minimum for eligibility can be determined:  On a school-by-school basis  For a group of schools as a group  not all must be above threshold  LEA can group schools to maximize ISP  For entire LEA as a whole Brustein & Manasevit, PLLC © 2015. All rights reserved. 5

6.  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 Brustein & Manasevit, PLLC © 2015. All rights reserved. 6

7.  “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” ISP = (Total # of identified students) (number of enrolled students) Brustein & Manasevit, PLLC © 2015. All rights reserved. 7

8.  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 Group ISP = (Total # of identified students for all schools in group) (number of enrolled students for all schools in group) Brustein & Manasevit, PLLC © 2015. All rights reserved. 8

9.  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 1 st to establish eligibility with FNS permission  If data is not available, school may not participate Brustein & Manasevit, PLLC © 2015. All rights reserved. 9

10.  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 Brustein & Manasevit, PLLC © 2015. All rights reserved. 10

11.  ISP must be established using data as of April 1 st  Cannot use October 1 st data from other programs  Due to variations in State and local systems, updates can be done before or after April 1 st, but final numbers must be “representative” of that date  FNS can grant waivers to use more recent data if it “better reflects the number of identified students and/or enrollment”  Note that this applies only to CEP itself! Deadlines for other programs using CEP data are different. Brustein & Manasevit, PLLC © 2015. All rights reserved. 11

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13.  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 Brustein & Manasevit, PLLC © 2015. All rights reserved. 13

14.  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 (as in 7 CFR 210.17)  Profits from a la carte sales  Cash donations  In-kind contribution funds (including volunteer services) Brustein & Manasevit, PLLC © 2015. All rights reserved. 14

15.  “Claiming Percentage” represents amount a school/LEA is reimbursed for CEP meals  ISP x (multiplier) = total % of meals reimbursed at federal free meal reimbursement rate, a.k.a. “claiming percentage”  Round to one decimal place using standard rounding  May not exceed 100% Brustein & Manasevit, PLLC © 2015. All rights reserved. 15

16.  ISP x (multiplier) = total % of meals reimbursed at federal free meal reimbursement rate, a.k.a. “claiming percentage”  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 © 2015. All rights reserved. 16

17.  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 © 2015. All rights reserved. 17

18.  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 Brustein & Manasevit, PLLC © 2015. All rights reserved. 18

19.  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 Brustein & Manasevit, PLLC © 2015. All rights reserved. 19

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21.  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 © 2015. All rights reserved. 21

22.  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 © 2015. All rights reserved. 22

23.  LEAs must notify the State no later than June 30 th 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 Brustein & Manasevit, PLLC © 2015. All rights reserved. 23

24.  Must provide to State by April 15 th of each year a list of potentially eligible schools  LEAs must 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 © 2015. All rights reserved. 24

25.  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 © 2015. All rights reserved. 25

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27. USDA and ED data rules: just different enough Brustein & Manasevit, PLLC © 2015. All rights reserved. 27

28.  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 Brustein & Manasevit, PLLC © 2015. All rights reserved. 28

29.  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 © 2015. All rights reserved. 29

30.  Encourage LEAs to find means of allocation that “does not mitigate CEP’s paperwork reduction benefit”  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 Brustein & Manasevit, PLLC © 2015. All rights reserved. 30

31.  LEAs using a single form must be able to:  Distinguish between forms from students in CEP versus non-CEP households  So LEA can comply with program requirements, e.g. verification, for non-CEP households  Cost allocate expenses for form processing Brustein & Manasevit, PLLC © 2015. All rights reserved. 31

32.  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 © 2015. All rights reserved. 32

33.  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 © 2015. All rights reserved. 33

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35.  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 © 2015. All rights reserved. 35

36.  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 Brustein & Manasevit, PLLC © 2015. All rights reserved. 36

37.  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 © 2015. All rights reserved. 37

38.  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: 2003 allocation guidance still generally applies Brustein & Manasevit, PLLC © 2015. All rights reserved. 38

39.  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 © 2015. All rights reserved. 39

40.  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 © 2015. All rights reserved. 40

41.  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 © 2015. All rights reserved. 41

42.  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 © 2015. All rights reserved. 42

43.  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 © 2015. All rights reserved. 43

44.  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 Brustein & Manasevit, PLLC © 2015. All rights reserved. 44

45.  LEAs and SEAs must disaggregate data based on subgroup of economically disadvantaged students  And must offer school choice/SES  ED: “For most LEAs, [school lunch] data, including CEP data, may be the best source to identify individual economically disadvantaged students” Brustein & Manasevit, PLLC © 2015. All rights reserved. 45

46.  SEA can choose how to identify economically disadvantaged subgroup for purposes of Title I reporting/accountability:  Include only “identified students” directly certified for poverty-based services like SES  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  And all students then eligible for services based on poverty Brustein & Manasevit, PLLC © 2015. All rights reserved. 46

47.  SEA must report on qualifications of teachers in schools in top and bottom quartiles  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 © 2015. All rights reserved. 47

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49.  Applicable starting in SY 2015-16 / E-Rate funding year 2015  LEAs must determine the E-Rate discount for the entire district, rather than for individual schools  Divide the number of students eligible for free and reduced-price meals in the district by the district’s total enrollment  For CEP schools, use Identified Student Percentage (ISP) multiplied by the CEP multiplier (currently 1.6) (claiming percentage)  May not exceed 100 percent Brustein & Manasevit, PLLC © 2015. All rights reserved. 49

50.  E-Rate discounts remain valid for the entire four-year CEP cycle.  If a school’s ISP decreases, the school may continue to use the original percentage for the remainder of the four-year eligibility period.  If the ISP increases, the school may choose to apply the higher percentage for E-Rate purposes Brustein & Manasevit, PLLC © 2015. All rights reserved. 50

51.  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 51 Brustein & Manasevit, PLLC © 2015. All rights reserved.

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53. 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 © 2015. All rights reserved. 53