Requirements and Interactions Julia Martin Brustein & Manasevit, PLLC Fall Forum 2015 The 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 All rights reserved. 2 3 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 All rights reserved. 4 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 All rights reserved. 5 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 liaisons list), runaway, and migrant youth Non-applicants approved by local officials and identified through means other than an application Brustein & Manasevit, PLLC All rights reserved. 6 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 All rights reserved. 7 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 All rights reserved. 8 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 All rights reserved. 9 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 All rights reserved. 10 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 All rights reserved. 11 Brustein & Manasevit, PLLC All rights reserved. 12 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 All rights reserved. 13 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 ) Profits from a la carte sales Cash donations In-kind contribution funds (including volunteer services) Brustein & Manasevit, PLLC All rights reserved. 14 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 All rights reserved. 15 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 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 All rights reserved. 16 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 All rights reserved. 17 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 All rights reserved. 18 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 All rights reserved. 19 Brustein & Manasevit, PLLC All rights reserved. 20 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 All rights reserved. 21 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 All rights reserved. 22 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 LEAs 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 All rights reserved. 23 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 All rights reserved. 24 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 All rights reserved. 25 Brustein & Manasevit, PLLC All rights reserved. 26 USDA and ED data rules: just different enough Brustein & Manasevit, PLLC All rights reserved. 27 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 All rights reserved. 28 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 All rights reserved. 29 Encourage LEAs to find means of allocation that does not mitigate CEPs 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 All rights reserved. 30 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 All rights reserved. 31 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 All rights reserved. 32 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 All rights reserved. 33 Brustein & Manasevit, PLLC All rights reserved. 34 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 All rights reserved. 35 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 All rights reserved. 36 CEP data may be used in finalizing within- State allocations if: EDs list does not match States (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 All rights reserved. 37 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 All rights reserved. 38 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 All rights reserved. 39 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 All rights reserved. 40 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 All rights reserved. 41 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 All rights reserved. 42 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 All rights reserved. 43 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 All rights reserved. 44 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 All rights reserved. 45 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 All rights reserved. 46 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 All rights reserved. 47 Brustein & Manasevit, PLLC All rights reserved. 48 Applicable starting in SY / 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 districts 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 All rights reserved. 49 E-Rate discounts remain valid for the entire four-year CEP cycle. If a schools 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 All rights reserved. 50 USDA FNS: Community Eligibility Provision: Guidance and Q&As(memo SP ) (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 All rights reserved. 52 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 All rights reserved. 53