Julia Martin, Esq.

1. To Accountability…and Beyond!! Brustein & Manasevit Fall Forum 2016November 30 – December 2, 2016 The Community Eligibility Program under ESSA • Julia Martin, Esq. • jmartin@bruman.com • Brette Kaplan Wurzburg, Esq. • www.bruman.com bwurzburg@bruman.com

2. Agenda CEP in a nutshell State and LEA responsibilities Potential impact of ESSA?

3. CEP in a Nutshell

4. 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.

5. Who can Participate? • LEAs or schools that: • Have an “identified student percentage” (ISP) of at least 40% as of April 1 the prior year • May be determined by group 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 • An LEA may participate in the CEP for all schools OR only for some schools

6. Who are “identified students?” • Students “certified for free meals through means other than individual household applications” as of April 1 (or other date with permission from FNS) • 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

7. Calculating ISP ISP = (total # of identified students) (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”

8. Reimbursement • 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 3 rates: free, reduced-price, and paid • All vary depending on school poverty, location, and meal (breakfast vs. lunch vs. snacks) and are adjusted from year to year • Under CEP, there are 2 rates: free and paid • CEP participating LEAs/schools must use non-federal funds for all meal costs in excess of federal reimbursement

9. 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”

10. How Long is the 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)

11. What is the “Claiming Percentage Multiplier?” • 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 ISP x (multiplier) = total % of meals reimbursed at federal free meal reimbursement rate, a.k.a. “claiming percentage”

12. State and LEA Responsibilities

13. 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

14. State Responsibilities • LEAs must notify the State no later than June 30th of the school year prior that it will implement CEP • State 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

15. State Responsibilities • 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

16. LEA Responsibilities • Provide to State by April 15th of each year a list of potentially eligible schools • Notify the State no later than June 30th of the school year prior if it is newly implementing, or ending its participation in, CEP

17. LEA Responsibilities • 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

18. Data Collection: 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

19. Data Collection: USDA • Encourage LEAs to find data method that “does not mitigate CEP’s paperwork reduction benefit,” e.g. single form • 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 • Allow LEAs to: • Distinguish between forms from students in CEP vs. non-CEP households • Cost allocate expenses for form processing

20. 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

21. 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

22. Potential Impact of ESSA?

23. ESEA vs. ESSA vs. NCLB? • The base law for K-12 education is the Elementary and Secondary Education Act (ESEA) • Remains primary law • No Child Left Behind (NCLB) made changes to ESEA, but has been superseded • The Every Student Succeeds Act (ESSA) makes changes to the version of ESEA that was amended by NCLB • So… • Citations are to ESEA as amended by ESSA • NCLB isn’t necessarily “bad law,” but much of it was changed or removed by ESSA • When in doubt, refer to ESEA as amended!

24. ESEA vs. CEP ESEA CEP USDA ED SEA STATE LEA SFA

25. 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 • Including Title I of ESEA

26. 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

27. ESEA: Other Data Sources • ESEA Sec. 1113(a)(5) (as amended by ESSA): • Census data • Free or reduced price lunch data • TANF • Medicaid eligibility • Composite of above • Must use the same measure for: • Identifying eligible areas • Ranking areas • Determining allocations

28. ESSA: Other Data Sources • NEW: LEA may use feeder pattern for secondary schools with majority of affected schools’ approval (Sec. 1113(a)(5)(B)) • (currently in guidance, codified in ESSA) • Project middle school or high school poverty by extrapolating from population of elementary school attendance areas that feed into schools • One of several changes in ESSA designed to maximize high school participation in means-tested programs • Why? Remove stigma, improve data integrity where diluted or difficult to obtain

29. 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

30. 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) • ED said before ESSA passage that 2003 allocation guidance still generally applies • Unclear how this will change under ESSA • General allocation rules are the same under new law

31. ESSA Allocations • Several changes under ESSA will impact State and district funding under ESEA regardless of poverty measure • Changes to Title I allocation, set-asides • Elimination of Title I “hold harmless” for SY 2017-18 to accommodate set-asides • Changes in Title II formula at State level, removal of “hold harmless” at LEA and State level • Any changes to allocation caused by switching data sources may be overshadowed by these changes

32. 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”

33. 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)

34. 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

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

36. 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 State 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”

37. CEP and Title I Reporting • SEA can choose how to identify economically disadvantaged subgroup for purposes of Title I reporting/accountability for CEP schools: • Include only “identified students” directly certified for poverty-based services like SES  this will go away following transition to ESSA • Use survey data; or • Base reporting and accountability on all students • In this case, “economically disadvantaged” subgroup is same as “all students” subgroup • Under NCLB, all students then eligible for services based on poverty  possibly carries over in schools/districts implementing new targeted interventions

38. 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): 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

39. Questions to Ask About Data in Light of ESSA • What data source are we using to measure poverty? • If we have CEP schools, how are we making the data sources comparable (which suggested metric)? • Is our data comparable between elementary and secondary schools? • Are we comfortable using that data source for ALL purposes? • Are we changing schoolwide/rank and serve thresholds? Does that impact CEP or vice versa? • Are we upgrading data systems to meet other new ESSA requirements (e.g. school site expenditure data)? Should we make other changes to collect more/better poverty data?

40. Private Schools • Private schools are eligible to participate in CEP if they otherwise meet the eligibility requirements • But LEAs may need to find new data for determining need for equitable services, other items • 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

41. CEP and Equitable Services • 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

42. ESSA and Equitable Services • State must appoint ombudsman to hear school complaints • Likely to also receive complaints about school meals (even though CEP not part of ESSA) • Private school may complain in writing if it believes LEA is not providing services/has not conducted appropriate consultation • State has the option to bypass LEA to provide services directly or through a contractor • Applicable to child nutrition?

43. Other Potential Effects of ESSA • Use of CEP in accountability systems? • States must develop system that rates schools on metrics including • At least one “valid, reliable, comparable, and Statewide” indicator of school quality (law suggests rating of school climate and safety) • Other factors as determined by the State • Low-performing districts/schools must craft interventions • Will CEP or school meal quality/participation factor in, either as school quality measure or solution?

44. When will we have answers? • Healthy, Hunger-Free Kids Act passed 2010 • ED published guidance in 2015 • ESSA signed into law December 2015 • ED said it will publish select regulations and guidance in 2016 • Advice on CEP: ???? • (USDA unlikely to publish new guidance/ regulations since its programs not affected)

45. Resources • USDA FNS: “Community Eligibility Provision: Guidance and Q&As”(memo SP45-2015) (Updated September 2015) • ED: “Guidance: The CEP and Selected Requirements under Title I, Part A” (March 2015) • USDA: Proposed rule on CEP (November 4, 2013) • USDA Community Eligibility Resource Center: http://www.fns.usda.gov/school-meals/community-eligibility-provision-resource-center

46. Questions?

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