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AEP Online |
Blaschke on Federal FundingTerms Under Which an "Affiliated Entity" Can Provide Supplemental Educational Services to Districts Identified for ImprovementOne of the major bones of contention between third party supplemental educational service (SES) providers and districts that have been identified for improvement is whether a district’s "affiliated entity" can be approved by the SEA to provide SES. Private SES providers argue that entities such as Boards of Cooperative Education Services (BOCES) and teacher groups, among others, can have a competitive advantage over them through better access to student information and in other areas. On the other hand, districts argue that if USED's goal is to increase SES participant rates, then districts or their affiliated entities can do so at much lower per participant tutoring costs and with less disruption to all parties concerned, including parents. The issue will continue to grow as: (a) more districts are identified for improvement or corrective action and more of their Title I allocations have to be earmarked for both staff development (10%) and SES parent choice (20%); and (b) USED and state policies are making it more difficult for districts to reallocate such unspent funds for other allowable purposes, as in the case of a new law in Florida. On May 10 in a policy letter addressed to Chief State School Officers, Assistant Secretary Henry Johnson attempted to clarify the conditions under which an affiliated entity could be allowed by the SEA to provide supplemental educational services. In addition to the general conditions and criteria any SES provider has to meet in order to receive SEA approval (e.g., demonstrated record of effectiveness, adequate financial capabilities, among others), the letter identifies a number of conditions that an "affiliated entity" of the district should also meet. The letter states: "Federal regulations prohibit either a local educational agency (LEA) or a school that has been identified as in need of improvement from serving as SES provider (34 CFR 200.47(b)(1)(iv)). However, the Department believes there may be some entities that are affiliated with an LEA, yet sufficiently separate and distinct from the LEA to be eligible to apply to become an SES provider even if the LEA has been identified for improvement. These entities may include 21st Century Community Learning Centers, community education programs, parent information and resource centers, and other entities loosely affiliated with an LEA." In determining whether the entity is "separate" and "distinct" from the LEA that has been identified for improvement or corrective action, the SEA should consider the following criteria: 1) "The existence of the State law that establishes the entity as separate and legally distinct form the school district." The Philadelphia Public School District argued that the State law created the Philadelphia Intermediate Education Unit as a separate entity from the Philadelphia Public School District and therefore the IEU should be allowed to provide SES services using many of the staff and facilities of the school district. After a significant controversy and highly critical statements from several third party independent providers, USED ruled that the IEU was distinct and separate from the district and was allowed to continue providing SES services as long as other conditions were met (e.g., removal of any indications of favoritism). 2) "The entity has decision-making authority independent from the Superintendent. (It may, however, still be held accountability to the school board.)" Depending upon a state’s charter school law, some district charter schools created by the district could meet this criterion. 3) "The entity has a separate stream of funding and does not rely on the district for its financial stability." The types of related entities which might meet this condition would include alternative schools and special schools, among others, which may receive a large portion of their total funding from other local agencies which are funded by programs such as the Workforce Investment Act or the Department of Justice Dropout Prevention Programs; or charge fees, for example, to hospitality firms to provide English language development for English Language Learners employed by the firm. Last Fall the Florida SEA approved an entity within the Hillsborough Public Schools that wanted to use staff involved in GED preparation programs to provide tutoring to middle school students in schools identified for improvement, over which the entity had no responsibility. They subsequently overturned this decision. 4) "The entity has its own hiring capabilities and does not need to abide by the district’s hiring obligations and requirements." This condition is most likely to be interpreted differently by SEAs, particularly as it applies to the use of teachers already employed by a district that has been identified for improvement. In a policy letter dated October 21, 2003, then Secretary of Education Rod Paige stated, "The final [Title I] regulations do not restrict in any way the ability of a highly qualified teacher employed by a school identified for improvement, corrective action, or restructuring from forming an entity that would serve as a supplemental educational services provider, or from work for such an entity." On several occasions Secretary Paige indicated that a local teacher organization - including an NEA or AFT local affiliate - could be approved by the SEA as an SES provider. In fact, two of the five SES models identified subsequently in a USED publication in Toledo, Ohio, and Rochester, New York, were teacher group entities. However, in the Fall of 2005, the Florida SEA turned down a request by a group of teachers in Pinellas County who wanted to be approved to provide SES to the district that had been identified for improvement. The remaining considerations included in the May 10 letter were: the entity has a separate and independent advisory committee; has a status as a 501 (c)(3) non-profit organization; and/or has its own operating means to communicate with the public. Among other related entities would be private schools that want to be approved by the state to provide SES as described in more detail in the June 1 TechMIS issue. The USED policy letter cautions SEAs that, "An entity may not necessarily meet all of these criteria in order to be considered separate and distinct from its LEA, but an SEA should use these criteria to determine whether the entity is sufficiently independent from the LEA." Questions, ideas, or in need of more information? Please contact Stacey Pusey at 302-295-8349.
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