Question also arises over whether Local Control Funding Formula, which eliminates state categorical ELL funding per-se may unintentionally imperil qualification for federal ELL funding.
By Tom Chorneau | SI&A Cabinet Report – http://bit.ly/17TQnFb
Thursday, August 22, 2013 :: Regulators from the U.S. Department of Education have flagged California schools for possible misuse of Title III money intended to provide additional support for English learners.
In regular compliance monitoring conducted earlier this spring, federal officials found evidence that the California Department of Education was not ensuring that local educational agencies were using the Title III money to supplement – not supplant – state funds for the same target group.
The supplement-not-supplant rule is one that characterizes virtually all federal education funding and one that is often misunderstood on the local level.
In general, this rule restricts LEAs and schools in the use of federal money for purposes that supplement and, to the extent practical, increase the level of services that would, in the absence of the federal funds, be made available from non-federal sources for the education of participating students.
At issue with the Title III money is a concern that CDE’s subgrantee monitoring reports do not address the supplement-not-supplant issues as they relate to a state categorical program – the Economic Impact Aid-Limited English Proficient.
“Specifically, the state does not distinguish that Title III funds should supplement the level of federal, state and local public funds, including EIA-LEP funds,” federal officials said. “Consequently, LEAs were supplanting with Title III funds (as described in Finding 2.3) and using Title III funds for unallowable costs.”
In a memo to the California State Board of Education released Wednesday, state schools chief Tom Torlakson said a formal response to the compliance report is being drafted and there are expectations that the department will propose related actions for the board to consider at its September meeting.
Looming as a potential complication over the issue is the newly-adopted school funding formula that has eliminated almost all of the state’s categorical programs as well as the traditional revenue limit funding. The Local Control Funding Formula also absorbed the EIA-LEP program.
Although the LCFF provides new state grants aimed at educationally disadvantaged students – English learners, low-income and foster youth – there are now growing concerns over how districts will properly delineate their use of state and federal funds with respect to the supplanting question.
In general, districts cannot use federal funds to replace state and local funding that is required to fund the district’s core academic program. Supplanting would occur if a district replaces state and local funds with federal Title III money for:
• An activity the district is required to provide by local, state and federal law;
• An activity provided in prior years with non-federal funds;
• An activity provided to non-Title III students with non-federal funds.
The federal review, which included interviews with staff at five districts including Los Angeles Unified and Sacramento, uncovered a number of other compliance issues with the use of Title III funding, including how districts are counting English learners and their participation with private schools.
supporting documents
| California Department of Education Executive Office SBE-002 (REV. 01/2011) | memo-ilsb-elsd-aug13item01 |
| memorandum |
| Date: | July 26, 2013 |
| TO: | MEMBERS, State Board of Education |
| FROM: | TOM TORLAKSON, State Superintendent of Public Instruction |
| SUBJECT: | ESEA, Title III, Part A: United States Department of Education’s Monitoring Report. |
Summary of Key Issues
The United States Department of Education (ED) conducted a comprehensive review of the California Department of Education (CDE) administration of Title III, Part A-English Language Acquisition, Language Enhancement, and Academic Achievement Act, authorized by the Elementary and Secondary Education Act of 1965 (ESEA), as amended on April 10th, April 16 through April 18, April 22nd, and April 29th, 2013.
During the review, the ED team conducted several monitoring activities. The ED team reviewed evidence of State-level monitoring and technical assistance, implementation of the state’s Title III accountability system, and fiscal and administrative oversight with the State Educational Agency (SEA). The ED team also interviewed staff at five Local Educational Agencies (LEAs) - Sacramento Unified School District, Los Angeles Unified School District, Ventura Unified School District, San Francisco Unified District, and Stockton Unified School District.
On June 24, 2013, the CDE and State Board of Education (SBE) staff received the California Title III Monitoring Report. California was given 30 business days from the receipt of the report to respond to all of the compliance issues contained therein. In view of the short time allowed to develop a California response, the CDE requested an extension from the ED for the submission. California’s response is now due October 1, 2013.
The Report contains a listing of the critical monitoring indicators under each monitoring element, a description of the scope of the monitoring review, the findings, and recommendations that the team cited as a result of the review. The ED is requesting the CDE to provide a detailed description of the actions the department will take, regarding issues outlined under the “Further Action Required” heading of the report.
The CDE is in the process of reviewing each finding with the appropriate divisions and units to properly prepare a response. CDE staff has identified multiple areas of inaccurate information and misunderstandings in the ED monitoring report. These areas will be disputed in the response to the findings and resolutions will be proposed for the other findings.
In September, the CDE will present an action item to the SBE to delegate authority to the SBE President or designee to coordinate with CDE to submit this response and further correspondence related to this monitoring report.
At this time, it is unclear what the fiscal impact will be on the Title III program and its operations as the CDE addresses the corrective actions resulting from the review. Should additional funds be necessary, the impact will be detailed in the CDE’s response to the findings outlined in the ED’s monitoring report.
Attachment(s)
Attachment 1: June 24, 2013, Letter from the United States Department of Education
Regarding the Title III Monitoring Visit (1page).
Attachment 2: June 24, 2013, Report from the United States Department of Education
Regarding the Title III Monitoring Visit (14 pages).
United States Department of Education
OFFICE OF ELEMENTARY AND SECONDARY EDUCATION
Mr. Tom Torlakson
State Superintendent of Public Instruction
California Department of Education
1430 N Street
Sacramento, CA 95814
Dear Superintendent Torlakson:
The U. S. Department of Education’s (ED) Student Achievement and School Accountability Programs office reviewed California’s administration of the Title III program authorized by the Elementary and Secondary Education Act of 1965 as amended (ESEA), April 10th, April 16-18th, April 22nd, and April 29th, 2013. Enclosed is a report based upon the review of the Title III program.
The report includes a brief description of the scope of the monitoring review, findings, and required corrective actions resulting from the review. California has 30 business days from receipt of this report to respond to all findings cited in the report. ED will review the State’s response to determine if all findings have been addressed sufficiently and request additional information, if necessary. ED will allow 30 business days for the State to submit additional information or work with the State to identify a reasonable timeline that allows the State to address and correct all findings. A State that has significant unresolved findings or findings that are repeated from one monitoring review to the next one may have a condition placed on their grant award.
Please note that the findings cited in the report reflect the status of compliance in April at the time of the onsite review.
The ED team would like to thank Karen Cadiero-Kaplan and all of the English Learner Support Division for their hard work and assistance before and during the review. I look forward to continuing to work with you and your staff to address the needs of English language learners.
Sincerely,
/s/
Monique M. Chism, Ph.D.
Director
Student Achievement and
School Accountability Programs
Enclosure
cc: Karen Cadiero-Kaplan, Director, English Learner Support Division
400 MARYLAND AVE., SW, WASHINGTON, DC 20202
http://www.ed.gov/
The Department of Education’s mission is to promote student achievement and preparation for global competitiveness by fostering educational excellence and ensuring equal access.
California Department of Education
April 16-18, 2013
Scope of Review: The U.S. Department of Education’s (ED) Student Achievement and School Accountability Programs office, Title III State Consolidated Grant Group monitored California the week of April 16-18, 2013. The California State Board of Education (SBE) is the governing and policy-making body of the California Department of Education (CDE). The SBE is the entity eligible to receive Federal funds while the (CDE) administers Federal programs. This was a comprehensive review of the CDE’s administration of Title III, Part A, authorized by the Elementary and Secondary Education Act of 1965 (ESEA), as amended.
During the review, the ED team conducted several monitoring activities. The ED team reviewed evidence of State-level monitoring and technical assistance, implementation of the State’s Title III accountability system, and fiscal and administrative oversight with the State educational agency (SEA). The ED team also interviewed staff in five local educational agencies (LEAs) – Sacramento Unified School District (SCUSD), Los Angeles Unified School District (LAUSD), Ventura Unified School District (VUSD), San Francisco Unified School District (SFUSD), and Stockton Unified School District (SUSD).
Monitoring Indicators for Title III, Part A
Overarching Requirement - State Monitoring of Subgrantees
| Indicator | Description | Status | Page |
| Overarching Requirement | State Monitoring of Subgrantees sections 3113—3116, 3121-3022 and 3302 of the ESEA; EDGAR 34 CFR 80.40 | Finding | 3 |
Finding: The CDE did not demonstrate that it is monitoring subgrantees sufficiently to ensure that all areas of Title III noncompliance were identified during its monitoring of subgrantees. The CDE’s subgrantee monitoring reports from recent onsite reviews do not address Title III use of funds and supplement, not supplant issues separately from Economic Impact Aid-Limited English Proficient (EIA-LEP) (the State’s categorical program to help LEP students). The Title III requirements are very specific and are different from other program requirements. Specifically, the State does not distinguish that Title III funds should supplement the level of Federal, State, and local public funds, including EIA-LEP funds. Consequently, LEAs were supplanting with Title III funds (as described in Finding 2.3) and using Title III funds for unallowable costs (as described in Finding 3.2(2)).
Citation: Section 80.40 of the Education Department’s General Administrative Regulations (EDGAR) requires States to monitor grant and subgrant activities to ensure compliance with applicable Federal requirements.
Further action required: The CDE must ensure that its Title III monitoring activities focus on compliance with Title III fiscal and programmatic requirements, particularly in the area of ensuring LEAs are not supplanting with Title III funds. The CDE must develop and submit to ED a revised monitoring plan, a revised monitoring instrument and evidence of implementation.
Monitoring Area 1: Standards, Assessments and Accountability
| Indicator Number | Description | Status | Page |
| Element 1.1 | English Language Proficiency (ELP) Standards section 3113 of the ESEA | Finding | 4 |
| Element 1.2 | ELP Assessment sections 3113 and 3116 of the ESEA | Findings | 4 |
| Element 1.3 | Annual Measurable Achievement Objectives (AMAOs) sections 3122(a)(1)(2)(3) and 1111(b)(2)(B) of the ESEA | Findings | 5 |
| Element 1.4 | Data Collection and Reporting sections 3121 and 3123 of the ESEA; EDGAR 34 CFR 76.731 | Findings | 6 |
Element 1.1 – English Language Proficiency (ELP) Standards
Finding: The SBE approved the adoption of newly aligned ELP standards in November 2012. The California English Language Development Standards are aligned to the State’s Common Core English language arts standards. However, the CDE has not yet aligned the new ELP standards to the State’s Common Core math and science standards.
Citation: Section 3113(b)(2) of the ESEA requires States to establish standards and objectives for raising the level of English proficiency that are derived from the four domains of speaking, listening, reading, and writing, and that are aligned with achievement of the State academic content and student academic achievement standards in section 1111(b)(1) of the ESEA. These content standards include reading/language arts, math, and science.
Further action required: The CDE must submit a plan that includes a timeline detailing the process to align the new ELP standards to the State’s Common Core math and science standards. Once the State aligns the new ELP standards to the State’s Common Core math and science standards, the CDE must provide evidence of this alignment to ED.
Element 1.2 – English Language Proficiency (ELP) Assessment
Finding (1): The CDE’s ELP assessment is not aligned with the State’s new recently adopted ELP standards. The CDE indicated that it plans to develop and adopt a new State ELP assessment, pending legislative authority and funding, that will be aligned to the State’s new ELP standards.
Citation: Section 3122(a)(3)(ii) of the ESEA requires States to ensure that LEAs use assessments that are “valid and reliable assessment[s] of English proficiency consistent with section 1111(b)(7)” of the ESEA. Although States may develop their own test or use a commercially-developed English language proficiency assessment, in order to ensure adequate assessment validity, they must ensure that any English language assessment that they use is aligned with the State’s ELP standards.
Further action required: The CDE must submit a plan that includes a timeline detailing the process align the State’s ELP assessment to the revised State ELP standards. If the State adopts the new ELP assessment, the CDE must provide evidence of this alignment to ED.
Finding (2): The CDE is using a composite score for its ELP progress and proficiency measures that is not consistent with its approved Consolidated State Application (CSA). The CDE currently assigns weights for the K-1 CELDT (CELDT) assessment results at: 45 percent weight for the domain of listening, 45 percent weight for the domain of speaking, and five percent weights each for the domains of reading and and writing. This weighting of domain scores was not included in the approved CSA amendment. The CDE’s approved amendment includes equal 25 percent weights for all four domains of language.
Citation: Section 3113(b)(5) of the ESEA requires that each State include in its State plan a description of how it will hold LEAs accountable for meeting the AMAOs described in section 3122 of the ESEA. The AMAOs include measures of progress in English, and proficiency in English as measured by a valid and reliable assessment (3122(a)(3)). The Notice of Final Interpretations (NOI) of Title III requires States to be able to demonstrate that its ELP assessment meaningfully measures student progress and proficiency in each language domain and, overall, is a valid and reliable measure of student progress and proficiency in English, consistent with the purpose for which the assessment(s) are used. The State can use a composite score so long as the State can demonstrate that the composite score meaningfully measures student progress and proficiency in each of the language domains and, overall, is a valid and reliable measure of student progress and proficiency in English [73 Fed. Reg. 61828, 61833 (October 17, 2008)].
Further action required: The CDE must either use the weights for its CELDT assessment that are in the approved CSA, or submit to ED a CSA amendment reflecting the desired change. An amendment request must include evidence of whether the proposed composite scoring method is a valid and reliable measure of student progress and proficiency in English.
Recommendation: LEAs were not assessing all identified LEP students with the California English Language Development Test , in particular, LEP students with disabilities. LEAs did not appear to be implementing CELDT test administration polices correctly and/or were administering alternative ELP assessments, which are not aligned to the State’s ELD standards, to LEP students with disabilities. ED recommends the CDE review the recommended alternative ELP assessments to ensure they are valid, reliable, appropriate for assessing English language proficiency, and aligned to the States ELD standards. The CDE should also take steps necessary to ensure its policies are implemented.
Element 1.3 – AMAOs
Finding (1): The CDE did not provide evidence that it has accurately applied the accountability requirements in section 3122(b) of the ESEA to Title III subgrantees that have not met the AMAOs for more than four consecutive years. The CDE requires districts that have not met their AMAOs for two or four years to develop plans that address the accountability requirements in section 3122(b). However, the State does not continue to provide oversight for these LEAs after their fourth year of not meeting AMAOs. At a minimum the State must apply the accountability provisions in Section 3122(b)(4) to ensure that such LEAs improve outcomes for the LEP students served. Additionally, the CDE did not provide evidence that it had provided all the required technical assistance to subgrantees that failed to meet their AMAOs during the development of the improvement plans and throughout implementation.
Citation: Section 3122(b)(4) of the ESEA requires that, for a subgrantee that has not met AMAOs for four consecutive years, the State must require the subgrantee to modify its curriculum, program, and method of instruction, or make a determination of whether the subgrantee should continue to receive funds, and require it to replace educational personnel relevant to the failure to meet AMAOs.
Section 3122(b)(3) of the ESEA requires a State to provide technical assistance to subgrantees during the development of the improvement plans and throughout the implementation. The SEA is required to provide technical assistance to the LEAs; provide technical assistance, if applicable, to schools served by the LEAs that need assistance to enable the schools to meet the AMAOs; develop, in consultation with the LEA, professional development strategies and activities, based on scientifically based research, that the LEA will use to meet such objectives; require LEAs to utilize such strategies and activities; and develop, in consultation with the LEAs, a plan to incorporate strategies and methodologies, based on scientifically based research, to improve the specific program or method of instruction provided to LEP children.
Finding (2): The CDE did not provide evidence that its AMAO 3 calculation includes graduation rate. During interviews, CDE staff stated the AMAO 3 calculations include graduation rate, but this was not clearly reflected in the evidence provided. Also staff in one LEA was not aware that AMAO 3 calculations include graduation rate.
Citation: Section 3122(a)(3)(A)(iii) of the ESEA requires that the SEA’s AMAOs include making adequate yearly progress (AYP) for LEP children.
Section 1111(b)(2)(C)(vi) of the ESEA states that AYP must include graduation rates for public secondary school students.
Further action required: The CDE must provide ED with evidence that its AMAO 3 calculations include graduation rates for secondary school students.
Element 1.4 – Data Collection and Reporting
Finding: The CDE did not provide evidence that its data reporting procedures for Title III purposes are accurate. ED found discrepancies between data reported in the State’s Consolidated State Performance Report (CSPR) and in the evidence as reported by LEAs. For example, all 5 LEAs provided data for the number of identified LEP students that were not assessed on the CELDT during the 2011-12 school year, whereas the CDE reported in the CSPR (CSPR data element 1.6.3.2.1) that all LEP students had been assessed in that year. Additionally, as reported by the LEAs, the student count of LEP students tested included initial fluent English proficient (IFEP) students. The counts of LEP students tested should not include students who are not LEP (CSPR data elements 1.6.2.1 and 1.6.3.2.1). SEA’s failure to maintain accurate data on LEP students significantly diminishes the quality of data submitted to ED, and reduces the likelihood that annual measurable achievement objectives (AMAOs) determinations and State allocations to LEAs are accurate.
Citation: The Department requires States to submit an annual CSPR for all covered ESEA programs (ESEA 9303). The CSPR includes data elements specific to Title III, enabling States to satisfy the Title III reporting requirement of section 3123 of the ESEA. By submitting the CSPR, States also meet the EDGAR requirement to submit program performance reports on an annual basis (34 CFR 76.720).
Further action required: The CDE must provide ED with a written explanation for the discrepancies in the 2011-2012 CSPR data and a plan that details the steps the CDE will take to ensure that any data submitted to ED in the future are accurate.
Recommendation: ED recommends that the CDE provide LEAs with guidance on the requirement to notify parents of their failure to meet AMAOs not later than 30 days after such failure occurs, as required by section 3302(b) of the ESEA. One LEA received its AMAO notification from the SEA, but then delegated its responsibility to schools to send letters notifying parents of the LEA’s failure to meet AMAOs. This resulted in the LEA exceeding 30 days for the parental notification regarding failure to meet AMAOs.
Monitoring Area 2: Instructional Support
| Indicator Number | Description | Status | Page |
| Element 2.2 | State Oversight and Review of Local Plans sections 3116(a) and 3115(c) of the ESEA; EDGAR 34 CFR 76.770 | Finding | 8 |
| Element 2.3 | Activities by Agencies Experiencing Substantial Increases in Immigrant Children and Youth sections 3114 and 3115 of the ESEA | Findings | 8 |
| Element 2.4 | Private School Participation section 9501 of the ESEA | Finding | 10 |
Element 2.2 - State Oversight and Review of Local Plans
Finding: The CDE did not demonstrate that its procedures for reviewing subgrantee plans for the Title III State Formula Grant Program are sufficient to ensure that such plans include activities that meet statutory requirements. Specifically, the CDE’s current practice of only reviewing the plans when LEAs are monitored or in improvement is not sufficient to ensure that subgrantees carry out appropriate activities that meet Title III requirements with budgets and narratives that reflect allowable expenses. Consequently, LEAs were exceeding their administrative cap [as described in Finding 3.2(1)], spending funds on unallowable activities [as described in Finding 3.2(2)], and supplanting with Title III funds (as described in Finding 3.4). (Recurring finding from 2009 review)
Citation: Section 3116 of the ESEA requires eligible entities desiring subgrants from the SEA to submit a plan containing information that the SEA requires, including, among other information, a description of programs and activities to be implemented. Additionally, EDGAR 34 CFR 76.770 requires States to have procedures for reviewing and approving applications for subgrants and amendments to those applications and for performing other administrative responsibilities the State has determined are necessary to ensure compliance with applicable statutes and regulations.
Further action required: The CDE must ensure that its procedures for reviewing subgrantee Title III State Formula are sufficient to ensure that such plans include activities that meet statutory requirements. To accomplish this, the CDE must develop a comprehensive plan to enhance its procedures for review of Title III plans and submit to ED evidence of these changes. This plan must include a timeline, implementation steps, staff, and resources.
Element 2.3 - Activities by Agencies Experiencing Substantial Increases in Immigrant Children and Youth
Finding (1): The CDE did not correctly apply eligibility requirements for Title III immigrant children and youth subgrants. Specifically, the CDE staff indicated during interviews that the State awarded immigrant children and youth subgrants for 3 years but do not ensure districts were eligible each year. Although the CDE later stated that eligibility is determined annually, evidence was not provided in order to demonstrate the State annually determines eligibility for the immigrant children and youth subgrants.
Additionally, the CDE did not demonstrate that its procedures for reviewing Title III Immigrant Children and Youth Program plans are sufficient to ensure that such plans include activities that meet statutory requirements. Specifically, the CDE’s current practice of only reviewing the plans when LEAs are monitored or in improvement is not sufficient to ensure that subgrantees carry out appropriate activities that meet Title III requirements with budgets and narratives that reflect allowable expenses.
Citation: Section 3114(d)(1) of the ESEA indicates that Title III immigrant subgrants should be awarded to eligible entities in the State that have experienced a significant increase, as compared to the average of the two preceding fiscal years, in the percentage or number of immigrant children and youth who have enrolled during the fiscal year preceding the fiscal year for which the subgrant is made, in public and nonpublic elementary and secondary schools in the geographic areas under the jurisdiction of, or served by, such entities.
Section 3116 of the ESEA requires eligible entities desiring subgrants from the SEA to submit a plan containing information that the SEA requires, including, among other information, a description of programs and activities to be implemented. Additionally, EDGAR 34 CFR 76.770 requires States to have procedures for reviewing and approving applications for subgrants and amendments to those applications and for performing other administrative responsibilities the State has determined are necessary to ensure compliance with applicable statutes and regulations.
Further action required: The CDE must provide evidence that its eligibility requirements for Title III immigrant subgrants for the 2012-2013 school year to meet the Title III statutory requirement outlined above. The CDE must provide a list of LEAs that have received immigrant subgrants for the 2012-2013 school year.The CDE must also ensure that its procedures for reviewing subgrantee immigrant children and youth plans are sufficient to ensure that such plans include activities that meet statutory requirements. To accomplish this, the CDE must develop a comprehensive plan to enhance its procedures for review of Title III immigrant children and youth plans and submit to ED evidence of these changes. This plan must include a timeline, implementation steps, staff, and resources.
Finding (2): The CDE has not ensured that LEAs properly identify immigrant children and youth based on the definition in section 3301(6) of the ESEA. Two districts reported students from Puerto Rico in their immigrant counts and CDE staff stated that their current data collection system includes Puerto Rican students in the immigrant counts. (Recurring finding from 2009 review)
Citation: Section 3301(6) of the ESEA defines immigrant children and youth as individuals who (A) are aged 3 through 21; (B) were not born in any State; and (C) have not been attending one or more schools in any one or more States for more than 3 full academic years.
Section 3301(14) of the ESEA defines State as each of the 50 States, the District of Columbia, and the Commonwealth of Puerto Rico.
Further action required: The CDE must provide ED with evidence that it counts the appropriate students in the Title III immigrant children and youth counts. The State must submit to ED evidence that it has informed LEAs regarding how to report accurate student immigrant counts to the State.
Element 2.4 - Private School Participation
Finding: The CDE has not ensured that Title III subgrantees comply fully with the requirements in section 9501 of the ESEA to provide services to private school LEP students in areas served by the LEA. LEAs indicated that a home language survey and annual ELP student assessment are eligibility requirements for LEP children in private schools to receive Title III services. Additionally, representatives from two LEAs described public school requirements that were also being required of private schools in order for their LEP students to be eligible for Title III services. In one LEA, a private school that initially sought to receive Title III services decided not to apply because the LEA required private schools to meet the same requirements as the public schools in the LEA, including providing a minimum time for students’ English language development instruction, adoption of a formal curriculum, and teacher credentialing. As a result of adding additional requirements not authorized by Federal law, private school students may have not received services they were eligible for.
Citation: Section 9501 of the ESEA requires that LEAs, after timely and meaningful consultation with private school officials, provide to private school children and their teachers, on an equitable basis, services that address their needs.
Further action required: The CDE must provide guidance and technical assistance to subgrantees regarding the requirements in section 9501of the ESEA. The guidance will clarify that LEAs should not impose additional requirements not authorized by Federal law on private schools. The CDE must submit to ED evidence that it has developed and disseminated guidance and provided technical assistance to Title III subgrantees.
Monitoring Area 3: Fiduciary
| Indicator Number | Description | Status | Page |
| Element 3.1 | State Allocations, Reallocations and Carryover section 3111(b) of the ESEA; 20 USC 6821(b)(3); sections 3114(a)-(d) of the ESEA | Findings | 11 |
| Element 3.2 | LEA Allocations, Reallocations and Carryover section 3115 of the ESEA | Findings | 13 |
| Element 3.3 | Maintenance of Effort sections 1120A and 9021 of the ESEA | X | N/A |
| Element 3.4 | Supplement, Not Supplant section 3115(g) of the ESEA | Finding | 14 |
Element 3.1 – State Allocations, Reallocations and Carryover
Finding (1): The CDE does not comply with the Title III supplement, not supplant provision as evidenced by the following:
o The primary responsibilities of some CDE staff whose salaries are paid 100 percent by Title III have job responsibilities for State programs including EIA, Seal of Biliteracy, and programs required by State law.
o The primary responsibilities of some CDE staff whose salaries are paid 100 percent by Title III include “Federal program monitoring,” which encompasses monitoring for other Federal programs and State requirements.
o The Title III State Director is funded 80 percent by Title III with responsibilities that include many other State programs. This position also serves as Director of the English Learner Support Division. The work done by this Division includes the Economic Impact Aid and Seal of Biliteracy programs, which are required by State law. Additionally, the Title III Director’s responsibilities include Migrant Education. The Title III State Director spends more than 20 percent of her time on these other responsibilities.
o 32 percent of the Complaints Management payables are funded by Title III. However, there was no evidence that a third of all complaints are specifically related to Title III.
o $264,054 of Title III funds were spent on translation of parent documents and $244,284 was spent on a Parent Document Clearinghouse for storing these translated documents. These materials are not specific to the Title III, but are related to general education.
(Recurring finding from 2009 review)
Citation: Section 3115(g) of the ESEA requires Title III funds be used to supplement the level of Federal, State, and local public funds that, in the absence of such availability, would have been expended for programs for LEP children and immigrant children and youth and in no case to supplant such Federal, State and local public funds.
Further action required: The CDE must immediately make changes to current staff allocations so that Title III funds are not used to support non-Title III related duties and responsibilities. Additionally, the CDE must immediately make changes to the way charges to Complaints Management, Parent Document Clearinghouse, and Federal programs monitoring are allocated so that Title III funds pay for these activities only proportionally, if at all. The CDE must provide ED with evidence that it will use Title III funds only for allowable Title III costs and not to supplant other funding. Such evidence should include budget documents, revised job descriptions, and other documentation that demonstrates that Title III funds are no longer utilized to support non-Title III related activities.
Finding (2): The CDE awards two million dollars for County Office “grants”. Carrying out State level activities through a third party is an allowable use of funds, however subgranting to accomplish this is not. The only allowable subgrants under Title III, Part A are for the LEP formula subgrants and the immigrant children and youth subgrants. Additionally, these County Office grants are charging administrative costs. These administrative costs should be included in the SEA’s administrative set aside.
Citation: States may make subgrants only to the extent authorized by the program statute. (EDGAR 76.50). The only allowable subgrants under Title III are from allocations under section 3114. These are for subgrants to LEAs based on the number of LEP students, to carry out the activities described in section 3115(a)-(d), and to LEAs that experience substantial increases in immigrant children and youth, to carry out the activities described in section 3115(e).
Further action required: The CDE must immediately cease awarding County Office “grants”. The CDE must provide ED with evidence that it has taken this action, such as budget documents and other documentation that demonstrates that the CDE does not subgrant. If the CDE wishes to enter contracts with the County Offices, the CDE must follow its State procurement laws. If the CDE provides funds to the County Offices through a contract to carry out State level activities, the CDE must have a process to include any administrative costs in the State’s administrative set-aside.
Finding (3): The CDE has not ensured that subgrantees receive funds in a timely manner in order to fully implement the Title III program. Title III funds are awarded in December of each year, and any Title III expenditures prior to December are funded through carryover funds or other sources. This is six months into the grant period. Additionally, new charter schools that had submitted a Title III plan for the 2012-2013 school year had not yet been awarded Title III funds as of April 25, 2013. Because the CDE awards funds in the middle of the school year, LEAs may not have sufficient time to implement proposed activities during the school year for which the grant was made.
Citation: Section 3114(a) of the ESEA requires States to award subgrants to LEAs with approved plans. Section 76.700 of EDGAR requires States and subgrantees to use federal funds in accordance with the applicable statute and approved State plan. Section 76.702 of EDGAR requires a State to use fiscal control and fund accounting procedures that ensure proper disbursement and accounting for Federal funds.
Further action required: The CDE must develop and implement a comprehensive corrective action plan, including a timeline, implementation steps, staff, and resources, to ensure that Title III awards are made in a timely manner so that LEAs can carry out their proposed activities. The CDE must submit this plan to ED, along with evidence of implementation.
Finding (4): The CDE did not provide sufficient evidence that its cash management procedures for allowing the drawdown of funds by LEAs meet the requirements in section 80.21 of EDGAR. Specifically, the CDE gives districts an initial allocation of twenty-five percent of their award in December. This allocation is not based on the LEAs’ need for the funds. This accounting procedure allows an LEA to carry cash on hand. As a result, LEAs are accumulating interest that they have to return to the Federal Treasury.
Citation: Section 80.21 of the EDGAR and OMB Circular A-102 require a State to use methods and procedures for transferring funds that minimize the time elapsing between the transfer of funds and the recipients’ disbursement of the funds. The Treasury regulations at 31 CFR part 205 provide more detail for this requirement. Section 80.21(d) provides that if a grantee (State) does not demonstrate the willingness and ability to maintain procedures to minimize the elapsed time, then “reimbursement shall be the preferred method.”
Further action required: The CDE must review and revise its cash management procedures, including drawdown policies, as they apply to Title III subgrants, to ensure that they meet the disbursement requirements in EDGAR and the Treasury regulations. The CDE must provide to ED a timeline and plan for the review and revisions, as well as evidence that it has implemented the revised procedures.
Recommendation: The CDE is advised to examine its allocations sequence used for making set-asides from its State Title III grant award. Under section 3114 of the ESEA, in determining its maximum set aside for immigrant subgrants, the CDE should determine this set-aside on the basis of its total Title III grant award, rather than the 95 percent of the total SEA grant award that is reserved for subgrants to LEAs. However, the immigrant set-aside is “not more than 15 percent” so the State has discretion to use a smaller amount.
Element 3.2 – LEA Allocations, Reallocations and Carryover
Finding (1): The CDE has not ensured that subgrantees are in compliance with the two percent administrative cap under Title III. The State has not ensured that LEAs include administrative positions funded under Title III in the two percent administrative cap. As a result, several LEAs visited exceeded their two percent cap. Additionally, the SEA’s local plan template, Local Educational Agency (LEA) Plan for LEAs in Program Improvement Year 3 Corrective Action, states, “No more than three percent of Title III funds may be allocated toward administrative costs. The district may also take indirect costs as established each year.” LEAs may allocate no more than two percent of Title III funds for administrative costs, including indirect costs.
Citation: Section 3115(b) of the ESEA requires each eligible entity receiving funds under section 3114(a) for a fiscal year to use not more than two percent of such funds for the cost of administering the subgrant. This restriction applies to all direct and indirect costs associated with administering the Title III subgrant.
Further action required: The CDE must provide additional guidance to its LEAs about the two percent restriction on administrative costs under Title III and describe how it will ensure, through its monitoring and review of LEA plans and budgets, that LEAs do not exceed the two percent cap. The CDE must submit evidence that it has provided additional guidance to its LEAs and the description of the procedures it will implement to ensure compliance with the administrative cap.
Finding (2): The CDE does not provide sufficient oversight of activities and budgets to ensure that LEAs expend Title III funds on activities that are allowable, allocable, necessary and reasonable. The State’s LEA Consolidated Application does not require LEAs to provide detailed information regarding how Title III funds will be used. As a result, ED could not establish, in all LEAs visited, that Title III funds were spent on allowable activities. For example, one LEA was providing “discretionary funds” to each school in the district. There was neither oversight nor guidance on allowable use of these funds.
Additionally, ED found that LEAs were spending Title III funds on activities that were not allowable. One district used Title III funds for a water cooler and building rental costs and another LEA used Title III funds for academic caps & gowns. It is unclear by reviewing the local plans or through interviews with Title III staff, how these expenditures support the required Title III activities.
The ED team also reviewed purchase orders for food-related expenses in LEAs visited, and although these expenditures appeared to be reasonable and allowable, one LEA indicated during interviews that it was not aware of the circumstances under which Title III funds could be used for these types of expenditures.
Citation: Section 9304(a) of the ESEA requires that the SEA ensure that programs authorized under the ESEA are administered in accordance with all applicable statutes, regulations, program plans, and applications.
Office of Management and Budget (OMB) Circular A-87 (2 CFR 225) requires that in order for costs to be allowable under Federal awards, they must be reasonable, necessary, and allocable.
Further action required: The CDE must provide ED with a description of how it will annually ensure funds are used for activities that are reasonable, necessary, and allocable for Title III program implementation. Additionally, the CDE must provide evidence of guidance to LEAs regarding allowable uses of Title III funds.
Element 3.4 – Supplement, Not Supplant
Finding: While the CDE does monitor LEAs, it is not sufficient to ensure that LEAs do not supplant with Title III funds as evidenced by the following:
- Two LEAs’ program handbooks referred to both Title III funds and EIA-LEP funds as supplemental. Neither plan stated that the Title III funds should supplement, but not supplant, EIA-LEP funds. Title III funds should supplement the level of Federal, State, and local funds, including the EIA-LEP funds.
- One LEA used Title III funds for instructional aides hired specifically to administer the CELDT and to purchase curriculum materials that are part of the core language instruction educational program.
- Two LEAs spent a significant portion of their Title III budget on program materials. It was not clear that these materials supplement the core curriculum.
- One LEA received a notice from the SEA that it had a large amount of carryover and needed to spend funds. The LEA then “recoded” expenses to Title III that had been previously paid for through other State or local funds.
- One LEA was supplanting teacher salaries with Title III funds.
Citation: Section 3115 (g) of the ESEA requires Title III funds be used to supplement the level of Federal, State, and local public funds that, in the absence of such availability, would have been expended for programs for LEP children and immigrant children and youth and in no case to supplant such Federal, State and local public funds.
Further action required: The CDE must develop and provide ED with a detailed plan and timeline for ensuring that its Title III subgrantees comply with the Title III non-supplanting provision. The plan must address how the State will annually ensure that its Title III subgrantees comply with the Title III non-supplanting provision.
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