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**Supplemental Educational Services**

## *Non-Regulatory Guidance*

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*January 14, 2009*

#########   {#section .unnumbered}

######### SUPPLEMENTAL EDUCATIONAL SERVICES

**Title I, Section 1116(e) of the Elementary and Secondary Education
Act**

#### Table of Contents

**I. [INTRODUCTION]{.underline}**

##  A. GENERAL INFORMATION 1 

##  

A-1. What are supplemental educational services?

> A-2. What is the purpose of SES?
>
> A-3. What other educational options are available to students and
> parents under NCLB?
>
> A-4. When must an LEA make SES available?
>
> A-5. Who is eligible to receive SES?

# II. [STATE EDUCATIONAL AGENCY (SEA) RESPONSIBILITIES]{.underline}

##  B. OVERVIEW OF SEA RESPONSIBILITIES 3 

> B-1. What is the responsibility of an SEA in ensuring that SES are
> made available to all eligible students?
>
> B-2. How can an SEA help ensure that parents have a genuine
> opportunity to obtain SES for their child?
>
> B-3. May an SEA require that SES providers adhere to specific program
> design parameters?
>
> B-4. May an SEA develop a policy with regard to SES providers' use of
> incentives?
>
> B-5. What business practices of providers should an SEA guard against?
>
> B-6. May an SEA define hourly rates for providers?
>
> B-7. How may an SEA set some program design parameters without
> inadvertently limiting parental choice?
>
> B-8. What information must an SEA display on its Web site regarding
> the amount of funds available for SES in each LEA in the State?
>
> B-9. What responsibilities does an SEA have if an LEA cannot post SES
> data because it does not have a Web site?
>
> B-10. Are SEAs subject to any reporting requirements regarding SES?

## C. PROVIDER ELIGIBILITY AND APPROVAL 8 

> C-1. How does an SEA approve SES providers?
>
> C-2. How may an SEA meet the requirement to maintain and update its
> list of approved providers?
>
> C-3. Who may apply to be an SES provider?
>
> C-4. May an individual or group of individuals be an SES provider?
>
> C-5. Are faith-based organizations, including entities such as
> religious private schools, eligible to be SES providers?
>
> C-6. May entities that use technology to deliver educational services
> be SES providers?
>
> C-7. May an LEA identified as in need of improvement or corrective
> action be an SES provider?
>
> C-8. May an entity that is affiliated with an LEA that has been
> identified for improvement or corrective action apply to become an SES
> provider?
>
> C-9. If an LEA that is a State-approved provider is identified as in
> need of improvement or corrective action after the beginning of the
> school year, may it continue providing SES through the end of the
> school year?
>
> C-10. May a public school identified as in need of improvement,
> corrective action, or restructuring be an SES provider?
>
> C-11. May an after-school program housed in a school building be an
> SES
>
> provider if the school in which the program is housed is identified as
> in need of improvement, corrective action, or restructuring?
>
> C-12. May teachers who work in a school or in an LEA identified as in
> need of improvement, corrective action, or restructuring serve as SES
> providers?
>
> C-13. Must an SEA require that a provider approved prior to the
> release of the 2008 Title I regulations re-apply so that the SEA can
> consider all of the approval criteria, outlined in C-1, for the
> provider?
>
> C-14. Must an SEA use the same criteria to approve all entities that
> wish to become providers?
>
> C-15. What does it mean for an SES provider to have a "demonstrated
> record of effectiveness" in increasing student academic achievement?
>
> C-16. By definition, SES must be of "high quality, research-based and
> specifically designed to increase the academic achievement of eligible
> students." How does an SEA determine whether the instruction provided
> by a particular SES provider meets these requirements?
>
> C-17. What does it mean to provide instruction that is consistent with
> an LEA's instructional program and aligned with State academic content
> and student academic achievement standards?
>
> C-18. How can an SEA determine whether a provider is "financially
> sound"?
>
> C-19. What Federal civil rights requirements apply to SES providers?
>
> C-20. Why is an entity that provides SES not considered to be a
> recipient of Federal financial assistance?
>
> C-21. How should an SEA gather information from a potential provider
>
> regarding whether the entity has been removed from another State's
> list of approved providers, and what should an SEA consider in
> reviewing this information?
>
> C-22. Why do the regulations require an SEA to use parent information
> and evaluation results in considering whether to approve a provider?
>
> C-23. Do staff employed by SES providers have to meet the highly
> qualified teacher requirements in Sections 1119 and 9101(23) of the
> ESEA?
>
> C-24. May an SEA require that all staff employed by SES providers meet
> the highly qualified teacher requirements in Section 1119 and 9109(23)
> of the ESEA?
>
> C-25. May there be only one approved SES provider in an LEA?
>
> C-26. Often, large providers have multiple franchise operations that
> provide services. May an SEA require separate applications from
> franchises?
>
> C-27. May an SEA approve an SES provider whose program relies on an
> LEA's having certain equipment or instructional resources available in
> order for students to receive SES?
>
> C-28. In what subject areas may an SES provider offer services to
> eligible students?
>
> C-29. May an SEA deny approval to a provider who applies to offer SES
> in only certain subject areas included in the State's ESEA assessments
> system?
>
> C-30. May an SEA approve an entity that allows students enrolled in
> its program to keep a computer upon completion of the SES program?
>
> C-31. What are the obligations of SEAs and LEAs in providing SES to
> students with disabilities who are eligible for services under the
> Individuals with Disabilities Education Act (IDEA) or students covered
> under Section 504 of the Rehabilitation Act of 1973 (Section 504)?
>
> C-32. What are the obligations of SEAs and LEAs in providing SES to
> LEP students?
>
> C-33. If an LEA must provide (either directly or through a contractor)
> SES to students with disabilities or LEP students because there are no
> providers available that can do so, must the LEA or its contractor
> become a State-approved provider?
>
> C-34. What information should an SEA use to meet the requirement that
> an SEA indicate in its list of providers, and an LEA indicate in its
> notice to parents, those providers that are able to serve students
> with disabilities or LEP students?

**D. MONITORING REQUIREMENTS** .21

> D-1. What is an SEA's responsibility with respect to monitoring SES
> providers?
>
> D-2. How may an SEA meet its monitoring responsibility to measure a
> provider's performance in increasing student academic proficiency?
>
> D-3. Under what circumstances must an SEA withdraw approval of a
> provider that is not meeting the statutory requirement to increase
> students' academic proficiency?
>
> D-4. What is an SEA's responsibility regarding monitoring an LEA's
> implementation of SES?
>
> D-5. What steps should an SEA take if it determines that an LEA is
> failing to
>
> implement SES in a manner that is consistent with the statute and
> regulations?

# III. [LOCAL EDUCATIONAL AGENCY (LEA) RESPONSIBILITIES]{.underline}

**E. OVERVIEW OF LEA RESPONSIBILITIES** 23

> E-1. What are the responsibilities of an LEA in implementing the SES
> requirements?
>
> E-2. May an LEA restrict the choice of subjects in which an eligible
> student may receive SES?
>
> E-3. May an LEA impose requirements on a provider that affect the
> design of the provider's program?
>
> E-4. May an LEA require providers on the State-approved list to meet
> additional program design criteria or to go through an additional
> approval process before providing services within the LEA?
>
> E-5. May an LEA impose reasonable administrative and operational
> requirements through its agreements with providers?
>
> E-6. What resources are available to help an LEA inform parents and
> implement SES well?
>
> **F. IDENTIFYING ELIGIBLE STUDENTS** 25
>
> F-1. Who is eligible to receive SES?
>
> F-2. How does an LEA determine eligibility for SES in schoolwide
> programs and targeted assistance programs?
>
> F-3. Which children may receive SES if the demand for services exceeds
> the level that funds can support?
>
> F-4. What data must an LEA use to identify low-income students?
>
> F-5. May an LEA use information from the National School Lunch Program
> (NSLP) to determine student eligibility for SES?
>
> F-6. How may an LEA that operates school lunch programs under
> Provisions 2 and 3 of the NSLA determine which students are eligible
> for SES?
>
> F-7. How does an LEA determine the eligibility of homeless students
> for SES?
>
> F-8. Are children who attend private schools eligible to receive SES?

**G. PROVIDING INFORMATION TO PARENTS** 27

> G-1. When should an LEA notify parents about their child's eligibility
> for SES, and when should services begin?
>
> G-2. What information must an LEA include in its notice to parents
> about SES?
>
> G-3. Are there requirements for the form of an LEA's SES notice?
>
> G-4. What information should an LEA include in its notice to parents
> about each provider that is available to serve students in the LEA?
>
> G-5. What information should an LEA include in the notice in order to
> meet the requirement that the notice explain the benefits of receiving
> SES?
>
> G-6. How must an LEA notify parents of their SES options?
>
> G-7. How may an LEA meet the requirement to notify parents directly of
> their SES options?
>
> G-8. How should an LEA distribute sign-up forms to parents?
>
> G-9. May an LEA set a deadline by which parents must request SES?
>
> G-10. What information must an LEA include on its Web site about SES?
>
> G-11. By when must an LEA post this information on its Web site?
>
> G-12. Do all LEAs have to display the SES information on their Web
> sites?
>
> G-13. What other information should an LEA display on its Web site to
> help parents understand their SES options?
>
> G-14. How can LEAs make their outreach to parents more successful?

**H. ARRANGING FOR SUPPLEMENTAL EDUCATIONAL SERVICES** 33

> H-1. What must an LEA include in its agreement with a provider?
>
> H-2. Who is responsible for developing the individual agreements for
> students receiving SES?
>
> H-3. If an LEA is an approved provider, what is its responsibility
> with respect to a student agreement?
>
> H-4. Must an LEA consult with parents in the development of a
> student's individual agreement?
>
> H-5. Must an LEA obtain a parent's signature as evidence of meeting
> the consultation requirement?
>
> H-6. How can an LEA facilitate parents' participation in the
> consultation process?
>
> H-7. For how long must a provider offer services?
>
> H-8. How often should parents and teachers receive information about
> student progress?
>
> H-9. If parents are not satisfied with the SES their child is
> receiving, or with their child's academic progress, may they request
> and receive a new provider?
>
> H-10. What actions must an LEA take if the demand for SES from a
> particular provider is greater than the provider can meet?
>
> H-11. What happens if there are no approved providers that offer
> services in an LEA?
>
> H-12. For how long is an LEA's waiver from implementing the SES
> requirements in effect?
>
> H-13. If an LEA cannot provide Title I public school choice to
> students in a school in its first year of school improvement and the
> LEA voluntarily decides to offer SES one year earlier than is required
> under the statute, do the SES requirements in Section 1116(e) apply?
>
> H-14. May an LEA offer SES to students who are at risk of failing to
> meet the State's academic achievement standards, but who are not
> low-income?
>
> H-15. How may an LEA fairly select providers to work in school
> buildings if there is not enough room in the schools for all SES
> providers to deliver their programs on-site?
>
> H-16. May an LEA provide a list of eligible students to an approved
> SES provider so that the provider can contact parents regarding its
> services?
>
> H-17. How may an LEA help providers disseminate information on their
> services to parents?
>
> H-18. May an LEA disclose the identity of a student, as well as
> educational records regarding the student, to an SES provider selected
> by the student's parents?
>
> H-19. Does the Family Educational Rights and Privacy Act (FERPA)
> prohibit an SES provider from contacting parents of students to whom
> it previously provided SES?
>
> H-20. May an LEA prohibit or limit approved providers from promoting
> their programs and the general availability of SES?
>
> H-21. May an LEA terminate the services provided to an individual
> student?

**I. THE ROLE OF PARENTS** 39

> I-1. How do parents select an SES provider?
>
> I-2. May parents select any provider that appears on the
> State-approved list?
>
> I-3. What is the role of parents in SES?
>
> I-4. What is the role of parents in supporting student attendance at
> SES sessions?

## IV. [PROVIDER RESPONSIBILITIES]{.underline}

#### J. PROVIDING SUPPLEMENTAL EDUCATIONAL SERVICES 40 

> J-1. What is required of SES providers?
>
> J-2. May an SES provider offer services in the summer?
>
> J-3. How may a prospective SES provider meet the requirement to
> provide information to an SEA on whether the provider has been removed
> from any State's approved provider list?

#### J-4. What resources are available to help prospective providers become State-approved and to help approved providers strengthen the quality of their programs? 

> J-5. May an approved SES provider offer tutoring services to non-SES
> eligible
>
> students alongside the eligible students that it serves in its SES
> program?

J-6. How may a provider use the funds it receives from an LEA for
providing SES?

# V. [FUNDING]{.underline} 

**K. FUNDING ISSUES** 42

> K-1. How much must an LEA spend on SES?
>
> K-2. Must an LEA reserve a portion of its Title I, Part A allocation
> to pay for SES?
>
> K-3. Does funding made available for Title I, Part A through the
> transferability provisions authorized under Section 6123 of the ESEA
> change the base that must be used to calculate the 20 percent
> obligation for choice-related transportation and SES?
>
> K-4. How may an LEA reserve Title I funds to help pay the costs of
> choice-
>
> related transportation, SES, or parent outreach and assistance?
>
> K-5. In reserving Title I, Part A funds for choice-related
> transportation, SES, and parent outreach and assistance, an LEA is not
> permitted under Section 1116(b)(10)(D) to reduce Title I allocations
> to schools identified for corrective action or restructuring by more
> than 15 percent. How should an LEA calculate this 15 percent limit?
>
> K-6. How do the carryover rules described in Section 1127 of the ESEA
> affect any Title I funds reserved for choice-related transportation,
> SES, or parent outreach and assistance?
>
> K-7. May an LEA use school improvement funds made available under
> Section 1003 (School Improvement) to pay for SES?
>
> K-8. What Federal dollars other than Title I, Part A funds may be used
> for SES?
>
> K-9. If an LEA does not incur any choice-related transportation costs,
> must it spend its 20 percent obligation on SES?
>
> K-10. May an LEA limit to less than 20 percent the amount that it will
> make available for SES and choice-related transportation?
>
> K-11. If an LEA provides SES to students enrolled in schools in their
> first year of improvement because it cannot provide public school
> choice (as discussed in H-13), may it count the cost of those services
> toward its 20 percent obligation?
>
> K-12. If the cost of meeting demand for SES and choice-related
> transportation in an LEA equals or exceeds the LEA's 20 percent
> obligation, must an LEA spend its 20 percent obligation on those
> activities?
>
> K-13. If only one school in an LEA has been identified for school
> improvement, corrective action, or restructuring, must the LEA make
> available its full 20 percent obligation for choice-related
> transportation and SES?
>
> K-14. How much must an LEA spend for each student receiving SES?
>
> K-15. How must an LEA calculate the per-pupil funding cap on the cost
> of SES?
>
> K-16. May an LEA establish a lower per-pupil cap for SES?
>
> K-17. What is meant by "the actual cost" of services in determining
> the per-pupil cost of SES?
>
> K-18. May an LEA pay a provider an amount that exceeds the per-pupil
> limitation on funding for SES?
>
> K-19. Must an LEA pay for or provide transportation for students to
> receive SES?
>
> K-20. May an LEA count costs incurred in providing outreach and
> assistance to parents on public school choice or SES toward the 20
> percent obligation?
>
> K-21. What costs for parent outreach and assistance may an LEA count
> toward meeting its 20 percent obligation?
>
> K-22. May an LEA count toward meeting its 20 percent obligation
> administrative costs, other than those for parent outreach and
> assistance, incurred in providing SES to eligible students?
>
> K-23. If an existing after-school program has been approved by the
> State as an SES provider, may an LEA count any funds that it is
> already paying that provider toward meeting the 20 percent obligation?

L.  **REQUIREMENTS FOR LEAS THAT DO NOT MEET THEIR 20 PERCENT
    OBLIGATION** 49

> L-1. What are the responsibilities of an LEA if it spends less than
> its 20 percent obligation on choice-related transportation, SES, and
> parent outreach and assistance?
>
> L-2. May an SEA require an LEA to meet additional criteria in order
> for the LEA to spend less than its 20 percent obligation?
>
> L-3. May an SEA establish additional requirements or procedures for an
> LEA that
>
> does not meet its 20 percent obligation?
>
> L-4. With which outside groups might an LEA partner to help inform
> eligible students and their families of the opportunity for SES or
> public school choice?
>
> L-5. Does an LEA need to form a formal partnership in order to meet
> the criterion that it partner with outside groups?
>
> L-6. May an LEA partner with an SES provider to meet the criterion
> that it partner with outside groups?
>
> L-7. How does an LEA provide timely, accurate notice to parents
> regarding SES?
>
> L-8. How can an LEA meet the criterion that it offer at least two SES
> enrollment windows of sufficient length and at separate points in the
> school year?
>
> L-9. If an LEA provides at least two SES enrollment windows, what
> information must the LEA provide to parents during each of those
> enrollment windows?
>
> L-10. Does an LEA that provides an "open enrollment" window all year
> for SES meet the criterion to provide a minimum of two enrollment
> windows at separate points in the school year?
>
> L-11. How can an LEA meet the criterion to give providers access to
> school facilities using a fair, open, and objective process?
>
> L-12. May an LEA that spends less than its 20 percent obligation and
> wishes to use the unexpended amount for other allowable activities
> differentiate between an SES provider and a non-SES group in allowing
> access to its school facilities?
>
> L-13. May an LEA that spends less than its 20 percent obligation and
> wishes to use the unexpended amount for other allowable activities
> differentiate between a for-profit SES provider and a non-profit SES
> provider in allowing access to its school facilities?
>
> L-14. Does the "facilities" criterion in L-1 *mandate* that an LEA
> give SES providers access to school facilities?
>
> L-15. When should an LEA notify the SEA of its intention to spend a
> portion of its 20 percent obligation for other allowable activities?
>
> L-16. What are the responsibilities of an SEA for ensuring that an LEA
> spending less than its 20 percent obligation meets the criteria in 34
> C.F.R. §200.48(d)(2)(i)?
>
> L-17. For purposes of an SEA's determining when it must review an LEA,
> what is a "significant portion" of the 20 percent obligation?
>
> L-18. For purposes of an SEA's determining when it must review an LEA,
> how does an SEA determine what is a "complaint supported by credible
> evidence"?
>
> L-19. What actions must be taken by an LEA that the SEA determines has
> not met the criteria for spending less than the amount needed to meet
> its 20 percent obligation?
>
> L-20. May an SEA waive one or more of the individual criteria for an
> LEA that spends less than the amount needed to meet its 20 percent
> obligation?
>
> L-21. Are there LEAs that spend less than their 20 percent obligation
> that are not subject to the criteria in 34 C.F.R. §200.48(d)(2)(i)?
>
> L-22. How do the criteria for spending less than the 20 percent
> obligation apply in the case of an LEA that can provide choice-related
> transportation or SES to all eligible students without spending the
> full 20 percent?
>
> L-23. If an LEA must spend the unexpended amount of its 20 percent
> obligation in a subsequent school year, must it use the same source of
> funds to meet this requirement?
>
> L-24. If an LEA must spend the unexpended amount of its 20 percent
> obligation in
>
> a subsequent school year, may it count costs for parent outreach and
> assistance in the subsequent school year toward meeting its unexpended
> obligation?
>
> L-25. Are unexpended funds that an LEA must spend in a subsequent
> school year subject to the equitable services provisions for private
> school students?

**APPENDICES**

**Appendix A**: Definitions
................................................................58

**Appendix B**: Sample Parent Notification Letter on Supplemental
Educational

Services......................................................................................
60

> **Appendix C**: Flowchart: Requirements and Responsibilities for
> Meeting the 20 Percent
> Obligation....................................................................................62

**PURPOSE OF GUIDANCE AND** **SUMMARY OF MAJOR CHANGES**

This guidance updates and expands upon the SES Guidance that the
Department released on June 13, 2005. It includes a number of new and
modified questions that address issues related to the Title I
regulations released in October 2008 (hereafter referred to as the 2008
Title I regulations), as well as other major policy guidance the
Department has issued since 2005. Responses to other questions are
revised to make them clearer or more responsive to issues based on
experience gained from the implementation of the Title I SES provisions.

The following are new questions that were not in the 2005 guidance: B-4,
B-5, B-8, B-9, B-10, C-8, C-13, C-20, C-21, C-22, C-28, C-29, C-30,
C-34, D-1, D-2, D-4, E-2, G-3, G-4, G-5, G-6, G-7, G-8, G-10, G-11,
G-12, G-13, H-2, H-4, H-5, H-6, H-19, J-3, J-5, J-6, K-20, K-21, and all
of Section L.

The responses to the following questions include significant new
information or changes from the 2005 guidance: A-2, B-1, B-2, B-3, C-1,
C-3, C-4, C-10, C-11, C-15, C-16, C-17, C-31, C-32, C-33, D-3, E-1, E-6,
F-2, G-1, G-2, G-9, G-14, H-1, H-3, H-7, H-8, H-9, H-10, H-15, H-16,
H-17, H-18, H-21, I-1, I-3, J-4, K-1, K-3, K-6, K-8, K-9, K-10, K-12,
K-13, K-14, K-15, and K-16.

The following sections were re-arranged in this version of the guidance:
Section G has become Section H, Section H has become Section I, and
Section I has become Section G. Additionally, several other questions
have been moved to another section or re-ordered within a section.

The following questions from the 2005 guidance are not included in this
new version (numbering reflects the format of the 2005 guidance): A-6,
D-1, D-2, D-3, D-5, D-6, G-14, I-1, J-3, K-1,

K-19, K-21, and K-25.

This guidance represents the Department's current thinking on SES
requirements. It does not create or confer any rights for or on any
person. This guidance does not impose any requirements beyond those
required to comply with applicable law or regulations. If you are
interested in commenting on this guidance, please e-mail us your comment
at <OIIGuidanceDocument@ed.gov> or write to us at the following address:

> U.S. Department of Education
>
> Office of Innovation and Improvement
>
> 400 Maryland Avenue, SW
>
> Washington, D.C. 20202

This guidance document supersedes the following guidance issued by the
Department:

-   Supplemental Educational Services Non-Regulatory Guidance, issued on
    June 13, 2005;

-   Questions and Answers on the Participation of Private Schools in
    Providing Supplemental Educational Services (SES) Under *No Child
    Left Behind*, issued on May 1, 2006, to the extent the issues
    covered in the private schools guidance are covered in this
    guidance;

-   Letter to State Chiefs on District-Affiliated Entities Becoming SES
    Providers, issued on May 10, 2006;

-   Letter to School Districts Regarding SES Providers Contacting
    Parents, issued on August 10, 2007;

-   Letter to State Chiefs Regarding Individual Student Agreements and
    Computers Used in SES Programs, issued on August 20, 2008; and

-   All previous guidance on the SES provisions that the Department has
    issued informally, to the extent the issues covered by such informal
    guidance are covered in this guidance.

######## Supplemental Educational Services

***Title I, Section 1116(e) of the Elementary and Secondary Education
Act***

## I. [INTRODUCTION]{.underline}

**A. GENERAL INFORMATION**

**A-1. What are supplemental educational services?**

Supplemental educational services (SES) are additional academic
instruction designed to increase the academic achievement of students in
schools in the second year of improvement, corrective action, or
restructuring. These services, which are in addition to instruction
provided during the school day, may include academic assistance such as
tutoring, remediation and other supplemental academic enrichment
services that are consistent with the content and instruction used by
the local educational agency (LEA) and are aligned with the State's
academic content and achievement standards. SES must be high quality,
research-based, and specifically designed to increase student academic
achievement *\[Section 1116(e)(12)(C); 34 §C.F.R. 200.45(a)\]*.

**A-2. What is the purpose of SES?**

Title I, Part A of the Elementary and Secondary Education Act of 1965
(ESEA), as reauthorized by the No Child Left Behind Act of 2001 (NCLB),
calls for parents of eligible students attending Title I schools that
have not made adequate yearly progress (AYP) in increasing student
academic achievement for three years to be provided with opportunities
and choices to help ensure that their children achieve at high levels.
SES provide extra academic assistance for eligible children. Students
from low-income families who are attending Title I schools that are in
their second year of school improvement (i.e., have not made AYP for
three years), in corrective action, or in restructuring status are
eligible to receive these services.

State educational agencies (SEAs) are required to identify entities,
both public and private, that qualify to provide these services. Parents
of eligible students are then notified, by the LEA, that SES will be
made available, and parents may select any approved provider in the
geographic area served by the LEA or within a reasonable distance of
that area that they feel will best meet their child's needs. The LEA
will sign an agreement with the provider selected by the parent, and the
provider will then provide services to the child and report on the
child's progress to the parents and to the LEA.

The goal of SES is to increase eligible students' academic achievement
in a subject or subjects that the State includes in its ESEA assessments
under Section 1111 of the ESEA, which must include reading/language
arts, mathematics, and science, as well as English language proficiency
for students with limited English proficiency (LEP).

**A-3. What other educational options are available to students and
parents under NCLB?**

#### NCLB provides several options for parents*.* Two options address educational issues and one addresses the issue of student safety.

#### 

Students attending Title I schools identified for improvement are given
the option of (1) transferring to another public school, or (2)
receiving SES, depending on the eligibility of the student and the
status of the school. (An SEA may also require non-Title I schools to
offer SES and public school choice.) The option to transfer to another
public school is available to all students enrolled in Title I schools
that are identified for improvement, corrective action, or
restructuring. SES, as discussed in this document, are available to
students from low-income families who are enrolled in Title I schools in
the second year of school improvement and for subsequent years. These
options continue until the school has made AYP for two consecutive
years. In circumstances where public school choice is not possible
(i.e., if all schools at a grade level are in school improvement, if an
LEA has only a single school at that grade level, or if schools in an
LEA are remote from each other making it impractical to transfer to a
new school), we encourage LEAs to consider offering SES during the first
year of school improvement. When both options are available, parents of
students eligible for SES have the choice of which option they would
prefer for their child. For more information on public school choice
requirements, go to:
<http://www.ed.gov/policy/elsec/guid/schoolchoiceguid.doc>.

Another educational choice exists for parents when their children are in
schools that have been identified as persistently dangerous, or when a
child has been the victim of a violent crime on school property
*\[Section 9532\]*. Such students have the option of transferring to a
different, safer public school. States must identify schools that are
persistently dangerous in time for LEAs to notify parents and students,
at least 14 days calendar prior to the start of the school year, that
their school has been identified *\[68 Fed. Reg. 35671 (June 16,
2003)\]*. For more information on the unsafe school choice option, go
to: <http://www.ed.gov/policy/elsec/guid/unsafeschoolchoice.doc>.

**A-4. When must an LEA make SES available?**

In general, an LEA must make SES available for eligible students
attending Title I schools that do not make AYP after one year of school
improvement (three years of not making AYP). For example, if a school
did not make AYP in the 2005-2006 and 2006-2007 school years, it would
be identified for improvement. If the school did not make AYP again in
the 2007-2008 school year, the school would be identified for its second
year of improvement and the LEA would have to make SES available to
eligible students in the school at the beginning of the 2008-2009 school
year.

A school must continue offering SES to its eligible students until the
school is no longer identified for school improvement, corrective
action, or restructuring. A school is no longer identified for
improvement, corrective action, or restructuring when it has made AYP
for two consecutive years.

**A-5. Who is eligible to receive SES?**

Eligible students are all students from low-income families who attend
Title I schools that are in their second year of school improvement, in
corrective action, or in restructuring. Eligibility is not dependent on
whether a student is a member of a subgroup that did not make AYP or
whether a student is in a grade that takes the statewide assessments
required by Section 1111 of the ESEA.

If the funds available are insufficient to provide SES to each eligible
student whose parent requests those services, an LEA must give priority
to the lowest-achieving eligible students *\[Section 1116(b)(10)(C); 34
C.F.R. §200.45(d)\]*. In this situation, the LEA should use objective
criteria to determine which students are the lowest-achieving. For
example, the LEA may focus services on the lowest-achieving eligible
students in the subject area that resulted in the school being
identified for improvement, corrective action, or restructuring. The
services should be tailored to meet the instructional needs of eligible
students in order to increase their academic achievement. (See Section F
for additional information.)

**II. [STATE EDUCATIONAL AGENCY RESPONSIBILITIES]{.underline}**

**B. OVERVIEW OF SEA RESPONSIBILITIES**

**B-1. What is the responsibility of an SEA in ensuring that SES are
made available to all eligible students?**

An SEA has a number of responsibilities in ensuring that SES are
available to all eligible students. The SEA must approve SES providers,
maintain a list of approved providers, display certain information on
its Web site, monitor its LEAs' implementation of SES, and monitor the
quality and effectiveness of providers. Specifically, the SEA must:

1.  Consult with parents, teachers, LEAs, and interested members of the
    public to promote maximum participation by providers to ensure, to
    the extent practicable, that parents have as many choices as
    possible *\[Section 1116(e)(4)(A); 34 C.F.R. §200.47(a)(1)(i)\]*.

2.  Provide and disseminate broadly, through an annual notice to
    potential providers, information on the opportunity to provide SES
    and the process for obtaining approval to be an SES provider
    *\[Section 1116(e)(4)(E); 34 C.F.R. §200.47(a)(1)(ii)\]*. (See
    Section C for additional information.)

3.  Develop and apply objective criteria for approving potential
    providers *\[Section 1116(e)(4)(B); 34 C.F.R. §200.47(a)(2)\]*. (See
    C-1.)

4.  Maintain an updated list of approved providers across the State, for
    each LEA, from which parents may select, and indicate which
    providers are able to serve students with disabilities or LEP
    students *\[Section 1116(e)(4)(C); 34 C.F.R. §200.47(a)(3)(ii)\]*.
    An SEA should also give each LEA a list of approved providers in its
    general geographic location. (See C-2.)

5.  Post on its Web site, for each LEA, the amount equal to 20 percent
    of the LEA's Title I, Part A allocation available for SES and
    choice-related transportation (also known as the "20 percent
    obligation") and the per-pupil amount available for SES *\[34 C.F.R.
    §200.47(a)(1)(ii)(B)\]*. (See B-8.)

6.  Develop, implement, and publicly report on standards and techniques
    for monitoring the quality and effectiveness of services offered by
    approved SES providers, and for withdrawing approval from providers
    that fail, for two consecutive years, to contribute to increasing
    the academic proficiency of students served by the providers
    *\[Section 1116(e)(4)(D); 34 C.F.R. §200.47(a)(4)\]*. (See D-1.)

7.  Develop, implement, and publicly report on standards and techniques
    for monitoring an LEA's implementation of SES *\[34 C.F.R.
    §200.47(a)(4)(iii)\]*. (See D-4.)

8.  Monitor each LEA's implementation of SES, including any LEA that
    spends less than the amount needed to meet its 20 percent obligation
    and chooses to spend the remainder of that obligation on other
    allowable activities to ensure that the LEA complies with the
    criteria in 34 C.F.R. §200.48(d)(2)(i) *\[34 C.F.R.
    §200.48(d)(3)\]*. (See L-1.)

9.  In addition to its regular monitoring, review by the beginning of
    the next school year any LEA that spends significantly less than the
    amount needed to meet its 20 percent obligation and has been the
    subject of multiple complaints, supported by credible evidence,
    regarding implementation of the public school choice and SES
    requirements *\[34 C.F.R. §200.48(d)(3)(ii)(A)\]*. (See L-16.)

**B-2. How can an SEA help ensure that parents have a genuine
opportunity to obtain SES for their child?**

An SEA should consider ways that it can help parents understand and
access SES for their child. It can do this directly, through its own
actions and outreach, as well as indirectly, by providing technical
assistance to its LEAs and by encouraging LEAs to provide outreach and
assistance to help parents make informed decisions about SES.

An SEA might work directly to help parents understand SES and how they
can enroll their child in an SES program by:

-   Developing a public service announcement on SES, or developing
    brochures or other media that can be shared with parents.

-   Posting on the SEA Web site clear and useful information about
    providers approved to serve in the State, questions a parent might
    consider in selecting a provider, a list of schools whose students
    are eligible for SES, and contact information for LEA and State SES
    coordinators.

-   Working with local parent organizations in the State, such as the
    State's Parent Information and Resource Center(s) (PIRC) and other
    outside groups, to develop resources for parents. (See
    <http://www.nationalpirc.org/directory/index.html> for a list of the
    PIRCs funded by the U.S. Department of Education.)

-   Posting on its Web site an SES registration form that parents can
    download, complete, and return to their LEAs. Such a form would list
    the providers available to parents and could be accepted by all LEAs
    in the State.

Additionally, an SEA could provide technical assistance to its LEAs in
the areas of parent outreach and improving access to SES by:

-   Providing LEAs with model practices on how LEAs can display
    information for parents on their Web sites, in a manner that is easy
    for parents to access and understand, about SES participation and
    eligibility rates and about approved providers in the LEA.

-   Developing a model parent notification letter for its LEAs that
    meets the requirements of the statute and regulations, and a uniform
    contract that all LEAs in the State could use with SES providers to
    ensure that LEAs use fair and equitable contracts and do not
    unfairly marginalize providers or limit providers' abilities to
    promote their programs and services.

-   Developing model procedures for allowing providers to operate their
    programs in school buildings.

Finally, an SEA could encourage its LEAs to implement policies that
likely will improve parents' understanding of and access to SES, such
as:

-   Holding "provider fairs" to give parents an opportunity to meet and
    learn about providers and their programs and to assist parents in
    gathering information on SES and signing up for services. Any such
    fairs should be scheduled at times and locations that are convenient
    to parents.

-   Providing teachers and principals with information about SES and
    local providers, so that these educators can be a resource for
    parents and encourage parents to enroll their child in SES.

-   Providing multiple enrollment periods, of sufficient length, so that
    parents have sufficient time to make decisions about SES programs
    for their child.

-   Making the registration process as open and accessible as possible
    by making registration materials widely available to parents and
    providers.

Note that if an LEA spends less than its 20 percent obligation and
wishes to use the funds for other allowable activities, the LEA
***must,*** among other things:

-   Partner, to the extent practicable, with outside groups, such as
    faith-based organizations, other community-based organizations, and
    business groups, to help inform eligible students and their families
    of the opportunity to receive SES;

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-   Ensure that eligible students and their parents have a genuine
    opportunity to obtain SES, including by\--

    -   Providing timely, accurate notice; and

    -   Ensuring that sign-up forms for SES are distributed directly to
        all eligible students and their parents and are made widely
        available and accessible through broad means of dissemination;

-   Provide a minimum of two enrollment "windows," at separate points in
    the school year, that are of sufficient length to enable parents to
    make informed decisions about SES and selecting a provider; and

-   Ensure that SES providers are given access to school facilities,
    using a fair, open and objective process, on the same basis and
    terms as are available to other groups that seek access to school
    facilities *\[34 C.F.R. §200.48(d)(2)(i)\]*. (See L-1.)

Although these practices are not required for LEAs that spend their full
20 percent obligation or spend the unexpended amount in the subsequent
school year, the Department believes they are good, sound practices that
would improve implementation of SES in any LEA.

**B-3. May an SEA require that SES providers adhere to specific program
design parameters?\
**

Yes. As part of its responsibility to approve providers, an SEA may
establish certain program design criteria for providers to meet aimed at
ensuring that all approved providers offer high-quality services. An SEA
could, for example, set a range of acceptable student/tutor ratios. If
it does so, an SEA should define acceptable ranges (e.g., 1-10:1 ratio)
as opposed to absolute values (e.g., 6:1) so as not to unduly restrict
providers' service delivery options.

An SEA also could establish a range of (or a cap on) acceptable rates
that providers may charge in the State to prohibit exorbitant or
unrealistically low rates. The use of ranges would help ensure the
delivery of quality services while providing necessary flexibility to
accommodate fluctuations in attendance and variations in per-pupil
funding among LEAs. In all cases, an SEA should strive to maintain a
variety of program configurations (e.g., online and offline,
individualized and small group, short and long program lengths) so that
parents' choice of providers and programs is not limited, consistent
with Section 1116(e)(4)(A) of the ESEA.

Although SEAs have the authority to establish program design criteria
for SES providers, it is important to note that LEAs may not impose
requirements on providers' program design.

**B-4. May an SEA develop a policy with regard to SES providers' use of
incentives?**

Yes. An SEA may develop a policy with regard to providers' use of
financial incentives or other gifts directed to families or to school or
LEA personnel to encourage enrollment in an SES program. The Department
suggests that an SEA consult with providers on this issue. An SEA should
ensure that its policy applies equally to all providers, including
public entities, does not prohibit activities by private providers that
are allowed by public entities, and does not bar standard marketing
practices.

For example, an SEA might want to allow providers to offer nominal
incentives to parents or students to attend information sessions and
provider fairs, for regular student attendance, or for student academic
achievement. On the other hand, an SEA might want to prohibit providers
from giving any financial incentive or gift to a student or parent for
enrolling in a specific program or changing enrollment to another
program. Additionally, an SEA might want to prohibit providers from
offering cash or other incentives to schools for signing up students for
their programs.

**B-5. What business practices of providers should an SEA guard
against?**

An SEA should ensure that providers do not engage in unfair or illegal
business practices. For example, an SEA should clearly take action if it
learns that a provider is offering "kickbacks" to LEA officials,
principals, or teachers who encourage parents to select that provider,
or if it learns that a provider is engaging in false advertising about
its SES program or other providers' programs. An SEA's requirements for
providers should expressly prohibit such practices so that both
providers and LEAs know up front that they are not allowed.

An SEA should also ensure that LEA practices do not give preferential
treatment to certain providers due, for instance, to their long-standing
relationship with the LEA, or give preferential treatment to its own
program over other providers' programs. For example, an SEA should guard
against an LEA's advertising its SES program to parents, but not
allowing other providers to advertise in the same way. Each of these
practices could unfairly encourage participation in one program over
other State-approved programs.

# B-6. May an SEA define hourly rates for providers?

As explained in B-3, an SEA may, *if it so chooses*, define parameters
for acceptable program designs that affect the hourly rates providers
charge throughout the State, in order to prohibit grossly exorbitant or
unrealistically low rates. An SEA should avoid arbitrarily setting
uniform pricing or hourly rates, however, and, if defining acceptable
program design parameters for providers, should consider the following
factors:

-   Pupil/tutor ratio;

-   Variation in per-pupil allocations among LEAs in the State;

-   Number of instructional hours;

-   Qualifications (and therefore cost) of the tutoring staff;

-   Cost of instructional materials and equipment (books, computers,
    manipulatives, etc.);

-   Rental fees or other overhead costs (including variations throughout
    a State);

-   LEAs' payment policies regarding attendance; and

-   Variation in the cost of doing business among LEAs in the State.

An SEA should avoid setting uniform rates within the State because this
could ultimately limit parents' choices of providers or reduce services
provided to students. Uniform hourly rates do not accommodate local
variations in charges and payment schedules and could result in rates
that underpay providers in more expensive markets and overpay them in
less expensive ones. In the case of underpayment, this may lead to
providers being unable or unwilling to serve a particular market, which
would then limit parental choice.

For these reasons, the Department encourages SEAs to determine
acceptable ranges for program design parameters rather than create
uniform hourly rates. Furthermore, an SEA's focus should not be on
micromanaging the SES marketplace as a whole. Rather, the SEA should
make sure that no provider charges a fee that is grossly exorbitant, or
a fee that is so low that it is unlikely students will be served well by
the provider's program.

**B-7. How may an SEA set some program design parameters without
inadvertently limiting parental choice?**

An SEA that desires to set program design parameters should ensure that
such parameters do not result in the inability of a wide variety of
providers, including non-profits, for-profits, LEAs, and faith-based and
community organizations, from being able to participate as eligible
providers, thereby limiting parental choice. This can be accomplished by
ensuring that such parameters take into account the type of factors
described in B-3 and B-6 and by consulting with providers who are
currently providing services within the State prior to setting such
parameters.

An SEA should inform prospective providers about the program parameters
(e.g., provider's cost, pupil/tutor ratio) it will allow and can include
such information in its request for applications. An SEA should also
work with its LEAs to ensure that parents have as much information as
possible about providers' programs, including the number of hours of
service, the pupil/tutor ratio, and the style of instruction being
offered.

**B-8. What information must an SEA display on its Web site regarding
the amount of funds available for SES in each LEA in the State?**

An SEA must post on its Web site, for each LEA in the State: (1) the 20
percent obligation that the LEA must spend for choice-related
transportation and SES; and (2) the maximum per-pupil allocation for SES
in the LEA (the LEA's Title I, Part A allocation divided by the number
of children in low-income families as determined by the Census Bureau)
*\[34 C.F.R. §200.47(a)(1)(ii)(B)\]*.

An SEA should be able to easily calculate each LEA's 20 percent
obligation and per-pupil allocation from data the SEA has available. The
posting of this information will help give all stakeholders a better
understanding of the resources available to support SES and public
school choice in an LEA.

For example, an SEA might provide the information in the following
format:

**State Name**

  ----------------- ----------------- ----------------- -----------------
  **Local           **Title I, Part A **20 percent      **Per-pupil
  educational       allocation**      obligation**      allocation for
  agency**                                              SES**

  School District A \$1,000,000       \$200,000         \$1,000

  School District B \$500,000         \$100,000         \$950

  School District C \$750,000         \$150,000         \$1,200

  School District D \$250,000         \$50,000          \$1,100
  ----------------- ----------------- ----------------- -----------------

### An SEA also might want to clarify that the per-pupil allocation for an LEA is the dollar amount of free tutoring an eligible student could receive and is not an out-of-pocket expense for parents. The SEA should post this information in a timely manner before the start of the school year as soon as the SEA determines its Title I, Part A allocations for LEAs.

**B-9.** **What responsibilities does an SEA have if an LEA cannot post
SES data because it does not have a Web site?**

As discussed in G-10 through G-12, an LEA is required to prominently
display on its Web site information on several aspects of SES. This
includes data on student eligibility and participation in SES, as well
as a list of SES providers approved by the State to serve the LEA and
the locations where services are provided. However, if an LEA that is
required to offer SES to eligible students does not have its own Web
site, an SEA must post this information on behalf of the LEA *\[34
C.F.R. §200.39(c)(2)\]*. An SEA that must post this information on
behalf of one or more LEAs must do so as early in the school year as
possible, particularly with respect to information on approved
providers, so that parents can access this information when making
decisions about their child's participation in SES. Additionally, the
SEA should post this information on its SES Web page, on another page
linked to its SES Web page, or at another prominent location on its Web
site so that parents can easily find the information.

**B-10. Are SEAs subject to any reporting requirements regarding SES?**

Yes. Each SEA must include, in its annual Consolidated State Performance
Report, information on SES, including the number of schools with
students eligible for SES, the number of students eligible for and
participating in SES, and the amount of funds spent on SES *\[Section
1111(h)(4)\]*. States must also provide this information through the
Education Data Exchange Network (EDEN/ED*Facts*) for each individual LEA
required to offer SES.

###### 

###### C. PROVIDER ELIGIBILITY AND APPROVAL

**[Overview of State Approval]{.underline}**

**C-1. How does an SEA approve SES providers?**

An SEA must develop and apply objective criteria that are based on
statutory and regulatory requirements for approving providers and make
these criteria publicly available to prospective providers. In addition,
the SEA must publish its list of approved providers.

In conducting its approval process, the SEA must ensure that each
provider it approves:

1.  Has a demonstrated record of effectiveness in increasing the
    academic achievement of students in subjects relevant to meeting the
    State's academic content and student academic achievement standards
    *\[Section 1116(e)(12)(B)(i); 34 C.F.R. §200.47(b)(1)(i)\]*. (See
    C-15.)

2.  Is capable of providing instructional services that are:

> \(a\) High quality, research-based, and designed to increase student
> academic achievement *\[Section 1116(e)(12)(C); 34 C.F.R.
> §200.47(b)(2)(ii)(C)\]*. (See C-16.)
>
> \(b\) Consistent with the instructional program of the LEA *\[Section*
> *1116(e)(5)(B), (12)(B)(ii); 34 C.F.R. §200.47(b)(1)(ii),
> (b)(2)(ii)(A)\]*. (See C-17.)
>
> \(c\) Aligned with State academic content and student academic
> achievement standards *\[Section 1116(e)(5)(B); 34 C.F.R.
> §200.47(b)(2)(ii)(B)\]*. (See C-17.)
>
> \(d\) Secular, neutral, and nonideological *\[Section 1116(e)(5)(D);
> 34 C.F.R. §200.47(b)(2)(ii)(D)\]*.

3.  Is financially sound *\[Section 1116(e)(12)(B)(iii); 34 C.F.R.
    §200.47(b)(1)(iii)\]*. (See C-18.)

4.  Will provide SES consistent with applicable Federal, State, and
    local health, safety, and civil rights laws *\[Section
    1116(e)(5)(C); 34 C.F.R. §200.47(b)(2)(iii)\]*. (See C-19.)

Additionally, in approving a provider, an SEA must consider, at a
minimum:

5.  Information from the provider on whether the provider has been
    removed from any State's approved provider list *\[34 C.F.R.
    §200.47(b)(3)(i)\]*. (See C-21.)

6.  Parent recommendations or results from parent surveys, if any,
    regarding the success of the provider's instructional program in
    increasing student achievement *\[34 C.F.R. §200.47(b)(3)(ii)\]*.
    (See C-22.)

7.  Evaluation results, if any, demonstrating that the provider's
    instructional program has improved student achievement *\[34 C.F.R.
    §200.47(b)(3)(iii)\]*. (See C-22.)

The criteria that an SEA uses to approve SES providers should be
developed in consultation with LEAs, parents, teachers, and other
interested members of the public, and promote participation by the
maximum number of providers to ensure, to the extent practicable, that
parents have as many choices as possible *\[Section 1116(e)(4)(A); 34
C.F.R. §200.47(a)(1)(i)\]*.

SEAs have flexibility in developing their approval process, but must
provide an opportunity at least annually for new providers to apply for
inclusion on the State list and must ensure that interested providers
are adequately informed of the procedures potential providers must
follow when applying for State approval *\[Section 1116(e)(4)(E); 34
C.F.R. §200.47(a)(1)(ii)\]*. SEAs may establish a reasonable period of
time during which additional providers may apply, be evaluated for
approval, and be added to the list.

SEAs may not, as a condition of approval, require a provider to hire
only staff who meet the "highly qualified teacher" requirements in
Sections 1119 and 9101(23) of the ESEA *\[34 C.F.R §200.47(b)(4)\]*.

**C-2. How may an SEA meet the requirement to maintain and update its
list of approved providers?**

An SEA must maintain an updated list of all approved providers in the
State. This information must identify which providers have been approved
to deliver SES in each LEA *\[Section 1116(e)(4)(C); 34 C.F.R.
§200.47(a)(3)(i)\]*. The list must indicate those providers that are
able to serve students with disabilities or LEP students *\[34 C.F.R.
§200.47(a)(3)(ii)\]*. The list must also identify those providers whose
services are accessible through technology, such as distance learning
programs *\[34 C.F.R. §200.47(a)(3)(i)\]*. The Department recommends
that the list include a brief description of the services,
qualifications, and demonstrated effectiveness of each provider, because
LEAs must include this information in their notice to parents.

**[Provider Eligibility]{.underline}**

**C-3. Who may apply to be an approved provider?**

A provider of SES may be any public or private (non-profit or
for-profit) entity that meets the State's criteria for approval. Public
schools (including charter schools), private schools, LEAs, educational
service agencies, institutions of higher education, faith-based
organizations, community-based organizations, business groups, and
individuals are among the types of entities that may apply to the SEA
for approval to provide SES.

All potential providers should be held to the same criteria. LEAs,
charter schools, and other public schools may not automatically be
considered to be approved providers; they must meet the SEA's
established criteria and go through the same approval process as all
other potential providers. However, schools and LEAs that have been
identified for improvement, corrective action, or restructuring may not
be SES providers. (See C-7 and C-10.)

**C-4. May an individual or group of individuals be an SES provider?**

Yes. An individual or group of individuals may be an SES provider if the
individual or group meets the applicable statutory and regulatory
requirements, as well as the SEA's criteria for approval.

#### 

**C-5. Are faith-based organizations, including entities such as
religious private schools, eligible to be SES providers?**

Yes. A faith-based organization (FBO) is eligible to become a provider
of SES on the same basis as any other private entity, if it meets the
applicable statutory and regulatory requirements. An SEA may not
discriminate against potential SES providers on the basis of the
entity's religious character or affiliation. Additionally, a provider,
including an FBO, may not discriminate against students receiving SES on
the basis of religion. An FBO is not required to give up its religious
character or identity to be a provider; it may retain its independence,
autonomy, right of expression, religious character, and authority over
its governance. An FBO, for example, may retain religious terms in its
name, continue to carry out its mission, and use its facilities to
provide services without removing or altering religious art, icons,
scriptures, or other symbols from areas where SES are provided. (See 34
C.F.R. §80.36(j) (<http://www.ed.gov/policy/fund/reg/fbci-reg.html>) for
more information.)

Neither Title I nor other Federal funds may be used to support religious
practices, such as religious instruction, worship, or prayer. (FBOs may
implement such practices, but not as part of SES.) FBOs, like other
providers, must ensure that the instruction and content they provide are
secular, neutral, and non-ideological *\[Section 1116(e)(5)(D); Section
1116(e)(9); 34 C.F.R. §200.47(b)(2)(ii)(D)\]*.

**C-6. May entities that use technology to deliver educational services
be SES providers?**

Yes. The statute permits providers, including those that are not
physically located within an LEA, to use alternate methods for delivery
of services, which may include online, Internet-based approaches, as
well as other distance-learning technologies. Rural LEAs or LEAs with
limited availability of SES providers are especially encouraged to work
with providers using these technologies. In addition, a provider that
uses technology to deliver tutoring services may provide students with
computers for the students to use or keep as part of the provider's
instructional program. (See C-30.)

**C-7. May an LEA identified as in need of improvement or corrective
action be an SES provider?**

No. Federal regulations do not allow an LEA that is identified as in
need of improvement or corrective action to be approved as an SES
provider *\[34 C.F.R. §200.47(b)(1)(iv)(B)\]*. However, schools within
such an identified LEA that are not identified for improvement,
corrective action, or restructuring may apply to be approved providers.

SEAs must notify LEAs of their improvement status prior to the beginning
of the school year, and should provide LEAs as much advance notice as
possible so that an LEA that is identified as in need of improvement and
that is serving as an SES provider can act quickly to offer parents who
signed up for its services the option of selecting another provider. An
SEA may not keep an LEA on its approved provider list if that LEA is
identified as in need of improvement or corrective action under Section
1116 *\[34 C.F.R. §200.47(b)(1)(iv)(B)\]*. An SEA, based on either
preliminary or final AYP determinations, should immediately remove from
its approved provider list any LEA that is identified as in need of
improvement or is in corrective action.

In order to avoid a disruption in services for students that is often
created when an LEA provider is identified for improvement and, thus,
may no longer provide SES, an SEA should consider using preliminary AYP
data to provide early warning to LEA providers that have not made AYP in
the prior year that they should make alternate arrangements for the
students they are serving. In this way, parents would have an adequate
opportunity to select another provider before services begin.

The only exception to the prohibition on LEAs in improvement or
corrective action status serving as SES providers occurs if an LEA must
provide SES to students with disabilities, students covered under
Section 504, or LEP students because no approved providers are available
to do so. In these cases, the LEA must provide those services (either
directly or through a contractor) even if it has been identified as in
need of improvement or corrective action. (See C-31 through C-33.) If
the cause of an LEA's identification for improvement or corrective
action is the performance of its students with disabilities or LEP
students, it would be preferable for the LEA to serve those students
through a contractor rather than directly serving them.

**C-8. May an entity that is affiliated with an LEA that has been
identified for improvement or corrective action apply to become an SES
provider?**

If an entity is affiliated with an LEA that is identified for
improvement or corrective action but is separate and distinct from the
LEA, it is eligible to apply to become an SES provider. Such an entity
might be a 21st Century Community Learning Center, a community education
program, a parent information and resource center, or another entity
that is loosely affiliated with an LEA.

An SEA may approve as an SES provider an entity that is affiliated with
an LEA in improvement or corrective action, provided the SEA determines
that the entity is separate and distinct from the LEA in which it is
operating. In making that determination, an SEA should consider whether
the entity satisfies criteria such as the following:

-   State law establishes the entity as separate and legally distinct
    from the LEA.

-   The entity has decision-making authority independent from the
    Superintendent. (It may, however, be accountable to the school
    board.)

-   The entity has a separate stream of funding and does not rely on the
    LEA for its financial stability.

-   The entity has its own hiring capabilities and does not need to
    abide by the LEA's hiring obligations and requirements.

-   The entity has its own operating structure (e.g., a means of
    communicating with the public separate from the LEA).

-   The entity has a separate and independent advisory committee.

-   The entity has status as a 501(c)(3) non-profit organization.

An entity does not have to meet all of these criteria in order to be
considered separate and distinct from its LEA, but an SEA should use
these criteria in determining whether an entity is sufficiently
independent from its LEA to be eligible to serve as an SES provider. A
stronger case may be made for an entity that meets multiple criteria.
Whatever the case, an SEA should document the justification it uses to
award approval to an entity that is affiliated with an LEA identified
for improvement or corrective action. An SEA may want to consider adding
a question to its provider application that would help the SEA determine
whether a prospective provider is affiliated with an LEA and the nature
of that affiliation.

Additionally, entities that are affiliated with an LEA must meet the
criteria that an SEA requires for all SES providers in the State,
including providing high-quality instruction and demonstrating a record
of effectiveness. Moreover, as a condition of approval, such an entity
would need to function as any other SES provider in the LEA. For
example, the entity, despite its LEA affiliation, could not have access
to information unavailable to other providers, such as student addresses
for outreach purposes.

**C-9. If an LEA that is a State-approved provider is identified as in
need of improvement or corrective action after the beginning of the
school year, may it continue providing SES through the end of the school
year?**

No. If an LEA has been approved as an SES provider and is then
identified as in need of improvement or corrective action, the SEA must
require the LEA to cease offering its SES program *\[34 C.F.R.
§200.47(b)(1)(iv)(B)\]*. This should be done as soon as possible, but no
later than the start of the next semester of the school year.

**C-10. May a public school identified as in need of improvement,
corrective action, or restructuring be an SES provider?**

No. If a public school is identified as in need of improvement,
corrective action, or restructuring, the school may not be an approved
SES provider *\[34 C.F.R. §200.47(b)(1)(iv)(A)\]*.

SEAs must notify LEAs of a school's improvement status prior to the
beginning of the school year, and should provide LEAs as much advance
notice as possible so that an LEA in which a public school was
previously serving as an SES provider can act quickly to offer parents
who signed up for the school's services the option of selecting another
provider. An SEA may not keep a public school on its approved provider
list if that school is identified as in need of improvement, corrective
action, or restructuring under Section 1116 *\[34 C.F.R.
§200.47(b)(1)(iv)(A)\]*. An SEA, based on either preliminary or final
AYP determinations, should immediately remove from its approved provider
list any public school that is identified as in need of improvement,
corrective action, or restructuring.

**C-11. May an after-school program housed in a school building be an
SES provider if the school in which the program is housed is identified
as in need of improvement, corrective action, or restructuring?**

Programs that operate *independently* from a school identified as in
need of improvement, corrective action, or restructuring and are not a
part of the school's regular education program may become SES providers
if they meet the SEA's criteria. The status of the school does not
affect the eligibility of an independent entity housed in the school. An
SEA should consider the factors listed in C-8 in determining if an
after-school program housed in a school identified as in need of
improvement, corrective action, or restructuring is sufficiently
separate and distinct from that school to operate independently.

**C-12. May teachers who work in a school or in an LEA identified as in
need of improvement, corrective action, or restructuring serve as SES
providers?**

Yes. An individual or group of teachers who works in a school or an LEA
identified as in need of improvement, corrective action, or
restructuring may apply to the SEA for approval as an SES provider or
may be hired by any State-approved provider (including an approved LEA
provider) to serve as a tutor in the provider's SES program.

**[SEA Approval Requirements]{.underline}**

**C-13. Must an SEA require that a provider approved prior to the
release of the 2008 Title I regulations re-apply so that the SEA can
consider all of the approval criteria, outlined in C-1, for the
provider?**

No. An SEA is required to implement the provider approval requirements
specified in 34 C.F.R. §200.47(b) (see C-1) for all *new* providers
beginning with its next approval cycle after November 28, 2008. An SEA
does not need to require a provider approved by an SEA prior to November
28, 2008 to re-apply. SEAs that require approved providers to renew
their approval every few years would then consider the new criteria in
34 C.F.R. §200.47(c) when evaluating applications for renewal. An SEA
that does not have renewal processes, however, does not need to create
one.

It is important to note that most of the criteria that SEAs must
consider in approving new providers are statutory requirements (items 1,
2, 3, and 4 in C-1). Thus, they pre-date the 2008 Title I regulations
and are criteria that existing providers already have met as part of an
SEA's approval process. Additionally, SEAs must examine two of the
criteria (items 6 and 7 in C-1) in their monitoring of SES providers.
(See D-1.)

**C-14. Must an SEA use the same criteria to approve all entities that
wish to become providers?**

Yes. The SEA must develop and use the same criteria for determining
whether an entity can be included on the State's approved provider list.

**C-15. What does it mean for an SES provider to have a "demonstrated
record of effectiveness" in increasing student academic achievement?**

An approved SES provider must have a demonstrated record of
effectiveness in increasing the academic achievement of students in
subjects relevant to meeting the State's academic content and student
achievement standards *\[Section 1116(e)(12)(B)(i); 34 C.F.R.
§200.47(b)(1)(i)\]*. An SEA must consider whether a potential provider
can demonstrate that its program meets this standard for approval
*\[Section 1116(e)(4)(B)\]*. In doing so, an SEA might require an
applicant to submit empirical evidence, as well as information about the
methodology used to collect such evidence, that the provider's
instructional program has increased student academic achievement. An SEA
also might require an applicant to submit qualitative data (such as
feedback from parents or students served) to demonstrate its program's
effectiveness; an SEA must consider available feedback from parents,
whether submitted by an applicant or available from an LEA or other
party, as part of the approval process. (See C-22.)

Applicants that are seeking to become first-time providers may not have
a history of providing services from which they can develop a
demonstrated record of effectiveness. In these cases, an SEA has
discretion to determine how it will evaluate whether the applicant can
meet this requirement. It could, for example, require the applicant to
submit what it anticipates to be the effects of its instructional
program on student achievement and an explanation for why it anticipates
such effects; such information might be based on the demonstrated
effectiveness of the applicant's instructional program as it was
implemented by *another* entity or the soundness of the research on
which the program is based. Additionally, an SEA could require an
applicant to submit information on how the applicant will measure the
effectiveness of its instructional program in increasing student
achievement.

Note that, with regard to determining whether a provider has a
demonstrated record of effectiveness, an LEA *may not* make such a
determination for the purposes of contracting and working with
State-approved providers. Nor may an LEA refuse to permit a
State-approved provider to serve students in the LEA because the LEA
disagrees with the provider's program design. (See E-3.)

**C-16. By definition, SES must be of "high quality, research-based, and
specifically designed to increase the academic achievement of eligible
students." How does an SEA determine whether the instruction provided by
a particular SES provider meets these requirements?**

One of the most important considerations in assessing the educational
practices of a potential provider is whether those practices result in
improved academic achievement for students in the subject areas of the
State's academic assessments required under Section 1111 of the ESEA. A
provider applicant should submit, as part of the State approval process,
any academic research supporting the particular instructional program it
will use. An applicant should submit, for example, research that
demonstrates how its curriculum, instructional strategies, materials,
and size and structure are designed to increase the academic achievement
of students. An SEA has the authority and the responsibility to approve
only entities that will contribute to increased student achievement
*\[Section 1116(e)(4)(B); 34 C.F.R. §200.47(b)(1)(i)\]*.

In approving an SES provider, an SEA may also want to consider the
following questions regarding a provider's proposed instructional
practices and program:

1.  Will the progress of students receiving these services be regularly
    monitored?

2.  Will the instruction be focused, intensive, and targeted to student
    needs?

3.  Will students receive constant and systematic feedback on what they
    are learning?

4.  Will instructors be adequately trained to deliver SES?

5.  How will the provider measure whether students and parents
    participating in the program are satisfied with the instructional
    program?

**C-17. What does it mean to provide instruction that is consistent with
an LEA's instructional program and aligned with State academic content
and student academic achievement standards?**

SEAs are responsible for determining whether a provider can deliver SES
that are consistent with an LEA's instructional program and aligned with
State academic content and student academic achievement standards
*\[Section 1116(e)(5)(B); 34 C.F.R. §200.47(b)(1)(ii), (b)(2)(ii)\]*.
This does not mean that the instructional content and methods of a
potential provider must be identical to those of the LEA, but they must
share a focus on the same State academic content and student academic
achievement standards and be designed to help students meet those
standards. One of the virtues of SES is that public and private
providers offer a diversity of programs from which parents may choose
that are consistent with, but not necessarily identical to, the LEA's
instructional program and are aligned with State academic standards. In
its application to the SEA, a provider should describe the connections
between its SES program and the State's academic standards and, where
possible, cite the specific academic standards the program addresses.

**C-18. How can an SEA determine whether a provider is "financially
sound"?**

An SEA is responsible for developing criteria to determine whether a
provider is "financially sound" for the purposes of providing SES. An
SEA might require potential SES providers to submit audited financial
statements or other evidence. An SEA might also employ site audits to
verify the accuracy of the information submitted. To determine financial
soundness, an SEA need not examine or monitor a provider's daily
expenditures.

**C-19. What Federal civil rights requirements apply to SES providers?**

Under Section 1116(e)(5)(C) of the ESEA, an SES provider must meet all
applicable Federal, State, and local civil rights laws (as well as
health and safety laws). With respect to Federal civil rights laws, most
apply generally to "recipients of Federal financial assistance." These
laws include Title VI of the Civil Rights Act of 1964 (discrimination on
the basis of race and national origin), Title IX of the Education
Amendments of 1972 (discrimination on the basis of sex), Section 504 of
the Rehabilitation Act of 1973 (Section 504) (discrimination on the
basis of disability), and the Age Discrimination Act of 1975
(discrimination on the basis of age).

An SES provider, merely by being a provider, is not a recipient of
Federal financial assistance. As a result, the above-referenced Federal
civil rights laws are not directly applicable to a provider unless the
provider otherwise receives Federal financial assistance for other
purposes.

The provisions of two Federal civil rights laws, however, may apply to
SES providers despite the fact that a provider is not a "recipient of
Federal financial assistance." Title II of the Americans with
Disabilities Act of 1990 (ADA) would apply to public entities, but not
private entities, that provide SES. Under Title III of the ADA, which is
enforced by the U.S. Department of Justice, private providers that
operate places of public accommodation (except for religious entities)
must make reasonable modifications to their policies, practices, and
procedures to ensure nondiscrimination on the basis of disability,
unless to do so would fundamentally alter the nature of the program.
Likewise, these providers must take those steps necessary to ensure that
students with disabilities are not denied services or excluded because
of the absence of auxiliary aids and services, unless taking those steps
would fundamentally alter the nature of services or would result in an
undue burden (i.e., significant difficulty or expense). In addition, an
entity that employs 15 or more employees is subject to Title VII of the
Civil Rights Act of 1964, which prohibits discrimination in employment
on the basis of race, color, religion, sex, or national origin, except
that Title VII does not apply to the employment of individuals of a
particular religion by a religious organization.

All the Federal civil rights laws, however, apply to SEAs and LEAs, as
recipients of Federal financial assistance or as public entities. As
such, SEAs and LEAs have the responsibility for ensuring that there is
no discrimination in their SES programs.

What this means in terms of SES for students with disabilities, students
covered under Section 504, and LEP students is addressed in items C-31
and C-32.

**C-20. Why is an entity that provides SES not considered to be a
recipient of Federal financial assistance?**

Under the regulations that define "Federal financial assistance," an SES
provider, merely by being a provider, is not a recipient of Federal
financial assistance. That is because an entity that serves as an SES
provider receives a contract from an LEA procuring its services to
provide SES. But the regulations that define "Federal financial
assistance," for example, those implementing Section 504 and the Age
Discrimination Act, specifically exclude procurement contracts from the
definition of "Federal financial assistance" *\[34 C.F.R. §104.3(h); 34
C.F.R. §110.3\]*. (See also 34 C.F.R. §100.13(f); 34 C.F.R. §106.2(g).)
This is because a procurement contract is not intended to provide
assistance to the contractor but, rather, to obtain a service for the
issuer of the contract, which, in this case, is the LEA.

**C-21. How should an SEA gather information from a potential provider
regarding whether the entity has been removed from another State's list
of approved providers, and what should an SEA consider in reviewing this
information?**

The simplest way for an SEA to gather information from a potential
provider regarding whether the entity has been removed from another
State's list of approved providers is for an SEA to request such
information from a potential provider in its application for approval as
an SES provider. In addition to asking applicants whether they have been
removed from another State's list of approved providers, an SEA should
ask applicants to describe the reason(s) for such removal. For example,
if a provider was removed from one State's list because the provider did
not serve any eligible students (because no students signed up for the
provider), that might not be sufficient to deter a second State from
approving that provider. However, a State would likely be more concerned
about a provider that was removed from a State's list due to health or
safety violations, or for failing to improve student academic
achievement, for example. An SEA should also take into account the rigor
of another State's evaluation when considering a provider that was
removed from another State's list as the result of evaluation findings.

**C-22. Why do the regulations require an SEA to use parent information
and evaluation results in considering whether to approve a provider?**

Parents can be objective and reliable sources of information for an SEA
to consider in approving providers. The regulations require that an SEA
consider, in approving a provider, results from parent surveys or parent
recommendations, if any exist, regarding the success of the provider's
instructional program in increasing student achievement *\[34 C.F.R.
§200.47(b)(3)(ii)\]*. Although parent feedback, by itself, may not
provide a sufficient basis for an SEA to determine whether a provider
should be approved, it can be an important component of an SEA's
decision.

An SEA may consider parent feedback obtained through a provider, LEA, or
other parties. An SEA has discretion in reviewing feedback by parents,
and might consider different forms of feedback given the manner in which
SES are implemented in its LEAs. For example, an SEA might rely on
interviews or focus groups of parents in considering whether to approve
potential providers that are small, local community-based organizations,
while it might consider survey data more appropriate in reviewing an
applicant that is a large, for-profit company. Whatever method an SEA
uses, it should take into account the validity and reliability of the
information it receives.

In addition to parent feedback, an SEA must consider evaluation results,
if any, in making its decision to approve a provider *\[34 C.F.R.
§200.47(b)(3)(iii)\]*. An SEA has some flexibility in determining the
type of evaluation results it will consider, and should consider only
the results from evaluations that it believes were obtained using
objective methodologies and scientifically valid methods. Evaluation
results, like parent feedback, are only one component of an array of
information an SEA should consider in approving providers.

**C-23. Do staff employed by SES providers have to meet the highly
qualified teacher requirements in Sections 1119 and 9101(23) of the
ESEA?**

No. The highly qualified teacher requirements in Sections 1119 and
9101(23) of the ESEA do not apply to SES providers.

**C-24. May an SEA require that staff employed by SES providers meet the
highly qualified teacher requirements in Sections 1119 and 9101(23) of
the ESEA?**

No. 34 C.F.R. §200.47(b)(4) of the Title I regulations specifically
prohibits an SEA from requiring a provider to hire only staff who meet
these requirements.

**C-25. May there be only one approved SES provider in an LEA?**

An SEA should strive to identify more than one SES provider for each
LEA. The inclusion of distance-learning providers is one way to expand
the pool of providers. However, it is possible that only a single
provider will be available in an LEA.

**C-26. Often, large providers have multiple franchise operations that
provide services. May an SEA require separate applications from
franchises?**

An SEA has discretion in determining how it will consider and approve
providers with multiple operations. Although the same curriculum and
instructional methods may be used by all franchises of a particular
provider, an SEA may decide to require each franchise to apply
separately. Alternatively, an SEA could choose to accept one application
that would cover all the franchises.

# 

**C-27. May an SEA approve an SES provider whose program relies on an
LEA's having certain equipment or instructional resources available in
order for students to receive** **SES?**

Yes. However, in deciding whether to approve such providers, an SEA
should weigh the benefits of the potential services against the need to
ensure that providers do not impose unreasonable costs on LEAs. For
example, some potential providers may offer distance-learning programs
that would require an LEA to have computers for students to use to
obtain the instruction. Although this type of arrangement may result in
the provision of high-quality services, the LEA might not have the
equipment, personnel, or other resources required by an SES provider to
implement the program. If an LEA does provide resources to enable an SES
provider to serve the LEA's students, the LEA may charge the costs of
such resources against the per-pupil allocation that the provider
receives.

**C-28. In what subject areas may an SES provider offer services to
eligible students?**

The statute defines SES as services that are in addition to instruction
provided during the school day and are of high quality, research-based,
and specifically designed to increase the academic achievement of
children on the academic assessments required under Section 1111 of the
ESEA and help them meet the State's academic achievement standards
*\[Section 1116(e)(12)(C); 34 C.F.R. §200.47(b)(2)(ii)(C)\]*. Section
1111 requires assessments in, at a minimum, reading or language arts,
mathematics, science, and English language proficiency (for LEP
students). Accordingly, an SES provider may offer services in any one or
more of those subjects. If a State includes other subjects in its ESEA
assessments, an SES provider may offer students services in those
subject areas, as well.

**C-29. May an SEA deny approval to a provider who applies to offer SES
in only certain subject areas included in the State's ESEA assessment
system?**

No. An SEA may not prohibit an SES provider wishing to provide services
only in certain of the subject areas included in the State's ESEA
assessment system\--e.g., science\--from applying for and gaining
approval if the provider meets the State's approval criteria and the
statutory and regulatory requirements. A provider may provide services
in one or more of the following subject areas: reading/language arts,
mathematics, science, English language proficiency (for LEP students),
or any other subject area the State includes in its ESEA assessment
system.

**C-30. May an SEA approve an entity that allows students enrolled in
its program to keep a computer upon completion of the SES program?**

Yes. If the primary purpose of a computer in the SES program is
instructional, it would be appropriate for SEAs to approve an entity
that allows students to keep the computer upon completion of the SES
program. However, if the computer's primary purpose is not
instructional, the computer may be an unallowable incentive under State
policy. SEAs should continue to monitor SES providers and determine
whether providers are using computers as incentives in a way that
violates State policy. (See B-4.)

# [Serving Students with Disabilities and LEP Students]{.underline}

# C-31. What are the obligations of SEAs and LEAs in providing SES to students with disabilities who are eligible for services under the Individuals with Disabilities Education Act (IDEA) or students covered under Section 504 of the Rehabilitation Act of 1973 (Section 504)?

LEAs that arrange for SES must ensure that eligible students with
disabilities who are eligible for services under IDEA and eligible
students covered under Section 504 have an equal opportunity to
participate in SES, and that they receive appropriate accommodations in
the provision of SES *\[34 C.F.R. §200.46(a)(4)\]*. SEAs must indicate
on their lists of approved SES providers, and LEAs must indicate in
their notice to parents on SES, those providers that are able to serve
students with disabilities *\[34 C.F.R. §§200.47(a)(3)(ii);
200.37(b)(5)(ii)(B)\]*.

Furthermore, the SES program within each LEA and within the State may
not discriminate against these students. Consistent with this
requirement, an LEA may not, through contractual or other arrangements
with a private provider, discriminate against an eligible student with a
disability or an eligible student covered under Section 504 by failing
to provide for appropriate SES with necessary accommodations. Such
services and necessary accommodations must be available, but not
necessarily from each provider. Rather, SEAs and LEAs are responsible
for ensuring that the available SES providers include some providers
that can serve students with disabilities and students covered under
Section 504 with any necessary accommodations, with or without the
assistance of the SEA or LEA. Note that if no provider is able to
provide SES with necessary accommodations to an eligible student with a
disability or a student covered under Section 504, the LEA would need to
provide those services, with the necessary accommodations, either
directly or through a contract *\[Section 1116(e); 34 C.F.R.
§200.46(a)(4)\]*. (See C-33.) However, the LEA's obligation to provide
services to an eligible student with a disability or a student covered
under Section 504 does not apply if there are no approved providers able
to serve ***any*** students in the LEA; students with disabilities and
students covered under Section 504 have no greater right to receive SES
than any other students in an LEA.

SES must be consistent with a student's individualized education program
(IEP) under Section 614 of IDEA or a student's individualized services
plan under Section 504 *\[34 C.F.R. §200.46(b)(3)\]*. However, these
services must be in addition to, and not a substitute for, the
instruction and services required under IDEA and Section 504 and should
not be written into IEPs under IDEA or into Section 504 plans. In
addition, parents of students with disabilities (like other parents)
should have the opportunity to select a provider that best meets the
needs of their child. An LEA can help facilitate the participation in
SES of a student with disabilities by providing a copy of the student's
IEP, or relevant portion of the IEP, to the provider selected by the
student's parents, with the parents' written consent.

**C-32. What are the obligations of SEAs and LEAs in providing SES to
LEP students?**

LEAs that arrange for SES must ensure that LEP students receive
appropriate SES and language assistance in the provision of those
services *\[34 C.F.R. §200.46(a)(5)\]*. SEAs must indicate on their list
of approved providers, and LEAs must indicate in their notice to parents
on SES, those providers that are able to serve LEP students *\[34 C.F.R.
§§200.47(a)(3)(ii); 200.37(b)(5)(ii)(B)\]*. The SEA and each LEA are
responsible for ensuring that eligible LEP students receive SES and
language assistance in the provision of those services through either a
provider or providers that can serve LEP students with or without the
assistance of the LEA or SEA. Note that if no provider is able to
provide such services, including necessary language assistance, to an
eligible LEP student, the LEA would need to provide these services,
either directly or through a contract *\[Section 1116(e); 34 C.F.R.
§200.46(a)(5)\]*. (See C-33.) However, the LEA's obligation to provide
services to an eligible student LEP student does not apply if there are
no approved providers able to serve ***any*** students in the LEA; LEP
students have no greater right to receive SES than any other students in
an LEA.

**C-33. If an LEA must provide (either directly or through a contractor)
SES to students with disabilities or LEP students because there are no
providers available that can do so, must the LEA or its contractor
become a State-approved provider?**

As discussed in C-31 and C-32, if no provider is able to provide SES
with necessary accommodations to an eligible student with a disability
or a student covered under Section 504, or if no provider is able to
provide SES with language assistance to an eligible LEP student, the LEA
would need to provide those services, with the necessary accommodations,
either directly or through a contract. If an LEA or its contractor is
providing SES to students with disabilities, students covered under
Section 504, or LEP students because there are no approved providers
available that can do so, the LEA or its contractor does not need to be
formally approved by the State to provide SES in this instance. However,
an LEA that must provide SES to students with disabilities, students
covered under Section 504, or LEP students because there are no approved
providers available to do so should communicate to the State its
intention to provide these services.

Such an LEA should make every effort to ensure that the services it
provides meet the standards of quality that apply to approved providers
in the State. The LEA or its contractor must also abide by all other
requirements applicable to the provision of SES (such as the requirement
to establish and measure student progress against specific goals and the
requirement to regularly inform parents of their child's progress). The
LEA may count funds spent providing SES in this situation toward the
LEA's 20 percent obligation.

It is also important to stress that an LEA should only determine that
there are no approved providers available to provide services to
students with disabilities and LEP students after completing an
exhaustive review of the providers on the State's approved list. It is
possible, for instance, that nearby providers (that is, providers
located close to, but not within, the geographic jurisdiction of the
LEA) or those that offer distance learning services will be able to
provide services to those two populations of students, even if no
provider located within the area served by the LEA can do so.

**C-34. What information should an SEA use to meet the requirement that
an SEA indicate in its list of providers, and an LEA indicate in its
notice to parents, those providers that are able to serve students with
disabilities or LEP students?**

An SEA may rely on self-reported information from a provider regarding
its ability to serve students with disabilities or LEP students. To
obtain this information, an SEA could include a question in its provider
application asking applicants to report if they are able to serve
students with disabilities or LEP students. Many SEAs already require
this information in their application and, for these SEAs, no additional
data collection should be necessary. An SEA must collect this
information from new providers, as well as those providers approved
prior to November 28, 2008. Note that an SES provider should inform the
SEA if its ability to serve students with disabilities or LEP students
changes from what it previously reported.

An LEA should use the information on its SEA's list of approved
providers to meet its own responsibility to include in its notice to
parents information on those providers able to serve students with
disabilities or LEP students.

**D. MONITORING REQUIREMENTS**

**D-1. What is an SEA's responsibility with respect to monitoring SES
providers?**

An SEA is responsible for monitoring the quality and effectiveness of
services of an approved provider and removing any provider that fails,
for two consecutive years, to contribute to increasing academic
achievement among the students it serves *\[Section 1116(e)(4)(D); 34
C.F.R. §200.47(c)\]*. Such monitoring must include, at a minimum,
examination of evidence that the provider's instructional program:

1.  Is consistent with the instruction provided and the content used by
    the LEA and the SEA *\[Section 1116(e)(5)(B), (e)(12)(B)(ii); 34
    C.F.R. §200.47(c)(1)(i)\]*;

2.  Addresses students' individual needs as described in students' SES
    plans *\[Section 1116(e)(3)(A); 34 C.F.R. §200.47(c)(1)(ii)\]*;

3.  Has contributed to increasing students' academic proficiency
    *\[Section 1116(e)(4)(D); 34 C.F.R. §200.47(c)(1)(iii)\]*; and

4.  Is aligned with the State's academic content and student academic
    achievement standards *\[Section 1116(e)(5)(B), (e)(12)(B)(ii); 34
    C.F.R. §200.47(c)(1)(iv)\]*.

Additionally, an SEA must consider, if available, parent recommendations
or results from parent surveys regarding the success of the provider's
instructional program in increasing student achievement and evaluation
results demonstrating that the provider's instructional program has
improved student achievement *\[34 C.F.R. §200.47(c)(2)\]*.

An SEA may also want to consider monitoring the extent to which a
provider's program, as implemented, reflects its program design, as
proposed in its application to the SEA; student enrollment (including
enrollment of students with disabilities and LEP students); and
attendance in a provider's program. An SEA's monitoring criteria must be
publicly reported *\[Section 1116(e)(4)(D); 34 C.F.R.
§200.47(a)(4)(iii)\]*, and an SEA should report any findings resulting
from such monitoring.

An SEA is ultimately responsible for monitoring providers, and should
request assistance from its LEAs only in collecting and reporting data
to the SEA, not in monitoring the effectiveness of providers.

**D-2. How may an SEA meet its monitoring responsibility to measure a
provider's performance in increasing student academic proficiency?**

An SEA must examine a provider's effectiveness in improving student
academic proficiency as part of its responsibility to monitor a
provider's performance for purposes of renewing or withdrawing approval
of a provider *\[34 C.F.R. §200.47(c)(1)(iii)\]*. Additionally, an SEA
must monitor whether a provider is addressing students' needs as
described in their individual student plans *\[34 C.F.R.
§200.47(c)(1)(ii)\]*. An SEA may use State assessment results, LEA
assessments, provider assessments, or other measures to assess the
academic achievement gains of students receiving SES. Whatever measure
is used, it should be specified publicly (ideally in the SEA's notice
inviting entities to apply to become SES providers) so that all
providers know how the SEA will measure providers' performance in
increasing student academic proficiency.

**D-3. Under what circumstances must an SEA withdraw approval of a
provider that is not meeting the statutory requirement to increase
students' academic proficiency?**

An SEA must have standards and techniques for withdrawing approval of an
SES provider and removing the provider from the State-approved list
*\[34 C.F.R. §200.47(a)(4)(ii)\]*. The statute requires an SEA to remove
from the approved list any provider that fails, for two consecutive
years, to contribute to increased student proficiency relative to State
academic content and student academic achievement standards *\[Section
1116(e)(4)(D)\]*. In addition, a provider may be removed from the list
if it fails to provide SES consistent with applicable health, safety,
and civil rights requirements, or fails to meet any other regulatory or
statutory requirements, particularly after more than one violation.

**D-4. What is an SEA's responsibility regarding monitoring an LEA's
implementation of SES?**

An SEA is required to develop, implement, and publicly report on the
standards and techniques it will use to monitor LEAs' implementation of
SES *\[34 C.F.R. §200.47(a)(4)(ii)\]*. An SEA must ensure that its LEAs
meet the requirements of the statute and its implementing regulations.
Monitoring LEAs to ensure that they meet all requirements for
implementing SES should be part of the regular Title I monitoring that
SEAs conduct of their LEAs *\[see 34 C.F.R. §80.40\]*.

As part of its regular Title I monitoring of LEAs, an SEA must ensure
that an LEA meets the criteria in 34 C.F.R. §200.48(d)(2)(i) if the LEA
spends less than its 20 percent obligation for choice-related
transportation and SES and uses the unexpended amount for other
allowable activities *\[34 C.F.R. §200.48(d)(3)(i)\]*. Further, an SEA
must review, before the beginning of the subsequent school year, any LEA
that has spent a significant portion of its 20 percent obligation for
other allowable activities and has been the subject of multiple
complaints, supported by credible evidence, regarding implementation of
public school choice or SES requirements *\[34 C.F.R.
§200.48(d)(3)(ii)\]*. (See L-1 and L-16.)

An SEA should consider tools and strategies it can use throughout the
year to monitor LEAs' progress in meeting the requirements of the law.
An SEA might choose, for example, to require an LEA to submit to the SEA
the parental notification letters the LEA has developed, or an SEA might
request that an LEA provide it with updates throughout the year on how
many students in the LEA are eligible for SES, and how many students
sign up for and receive services.

The Department, as part of its auditing and on-site and desk monitoring
of Title I, requests evidence documenting that SEAs are effectively
monitoring the implementation of SES by their LEAs.

**D-5. What steps should an SEA take if it determines that an LEA is
failing to implement SES in a manner that is consistent with the statute
and regulations?**

An SEA is responsible for ensuring that SES requirements are properly
implemented by LEAs in the State. If an SEA determines that an LEA is
failing to implement SES in a manner consistent with the statute and
regulations, an SEA might provide technical assistance to the LEA, or
institute peer-to-peer oversight and technical assistance by another LEA
that the SEA determines to be in compliance with the law and
implementing effective SES practices. Additionally, an SEA should,
pursuant to Section 1116(b)(14)(B) of the ESEA, take such corrective
actions as the SEA determines to be appropriate and in compliance with
State law. An SEA should act promptly to rectify a situation in which an
LEA is out of compliance with the statute or regulations so that such
compliance problems do not delay eligible students from enrolling and
participating in SES programs.

The enforcement mechanisms available to SEAs under Federal law and
regulations in carrying out this responsibility include: (1) withholding
approval, in whole or in part, of the application of an LEA until the
SEA is satisfied that program requirements will be met; (2) suspending
payments to an LEA, in whole or in part, if the SEA has reason to
believe that the LEA has failed substantially to comply with program
requirements; (3) withholding payments, in whole or in part, if the SEA
finds, after reasonable notice and opportunity for a hearing, that an
LEA has failed substantially to comply with program requirements; and
(4) ordering, in accordance with a State audit resolution, repayment of
misspent funds. Sections 432 and 440 of the General Education Provisions
Act (20 U.S.C. 1231b-2, 1232c) provide more detailed information on
these enforcement mechanisms, including due process requirements.

**III. [LOCAL EDUCATIONAL AGENCY RESPONSIBILITIES]{.underline}**

**E. OVERVIEW OF LEA RESPONSIBILITIES**

**E-1. What are the responsibilities of an LEA in implementing the SES
requirements?**

An LEA must:

1.  Notify parents about the availability of services, at least annually
    *\[Section 1116(e)(2)(A); 34 C.F.R. §200.46(a)(1)\]*. (See G-2.)

2.  Help parents choose a provider, if requested *\[Section
    1116(e)(2)(B); 34 C.F.R. §200.46(a)(2)\]*.

3.  Apply fair and equitable procedures for serving students if not all
    students can be served *\[Section 1116(e)(2)(C); 34 C.F.R.
    §200.46(a)(3)\]*. (See F-3.)

4.  Ensure that eligible students with disabilities and LEP students
    receive appropriate services *\[34 C.F.R. §200.46(a)(4), (5)\]*.
    (See C-31 through C-33.)

5.  Enter into an agreement with a provider selected by parents of an
    eligible student *\[Section 1116(e)(3); 34 C.F.R. §200.46(b)\]*.
    (See H-1.)

6.  Assist the SEA in identifying potential providers within the LEA
    *\[Section 1116(e)(4)(A); 34 C.F.R. §200.46(a)(2)\]*. (See C-1).

7.  Protect the privacy of students who are eligible for or receive SES
    *\[Section 1116(e)(2)(D); 34 C.F.R. §200.46(a)(6)\]*. (See H-16
    through H-18.)

8.  Prominently display on its Web site, in a timely manner to ensure
    that parents have current information: (a) beginning with data for
    the 2007--2008 school year and for each subsequent school year, the
    number of students who were eligible for and the number of students
    who participated in SES; and (b) for the current school year, the
    list of providers approved by the SEA to serve in the LEA and the
    locations where services are provided *\[34 C.F.R.
    §200.39(c)(1)(ii), (iii)\]*. (See G-10 through G-12.)

9.  Meet its 20 percent obligation. If an LEA spends less than the
    amount needed to meet its 20 percent obligation, then it must
    either: (a) spend the remainder of that obligation in the subsequent
    school year; or (b) meet the criteria in 34 C.F.R. §200.48(d)(2)(i)
    *\[34 C.F.R. §200.48(d)(1), (2)\]*. (See L-1.)

**E-2. May an LEA restrict the choice of subjects in which an eligible
student may receive SES?**

In general, an LEA may restrict the subjects in which an eligible
student may receive SES only if the LEA does not have sufficient funds
to provide services to all eligible students whose parents request
services. (See A-5 and F-3.)

**E-3. May an LEA impose requirements on a provider that affect the
design of the provider's program?**

No. An LEA may not impose requirements that relate to the design of a
provider's educational program; doing so would undermine the SEA's
authority to approve providers. The involvement of LEAs in program
designs is not provided for in the statute or regulations.

For example, an LEA may not require that providers offer a certain
number of hours of services to receive the statutory per-pupil amount
for services, or employ only State-certified teachers as tutors.
Likewise, an LEA may not require that providers' programs have certain
student-teacher ratios. These types of requirements may create a
"one-size-fits-all" model of services that does not effectively take
into consideration the varied needs of students, which would undermine
parents' opportunity to select the most appropriate provider and
services for their child.

Under no circumstances should an LEA refuse to offer any provider on the
State-approved list as an option to parents because of program design
concerns. If an LEA has specific concerns regarding a provider's program
design, the LEA should convey those concerns to the SEA.

As explained in B-3, SEAs may establish certain parameters on program
design.

**E-4. May an LEA require providers on the State-approved list to meet
additional program design criteria or to go through an additional
approval process before providing services within the LEA?**

No. Once a provider is on the State-approved list, an LEA may not
require an additional approval process or impose additional program
design requirements on the provider, except the requirement to abide by
applicable local health, safety, and civil rights laws.

**E-5. May an LEA impose reasonable administrative and operational
requirements through its agreements with providers?**

Yes. For example, an LEA may require that all employees of a provider
undergo background checks if the LEA requires this for all entities with
whom it enters into contracts for direct services to students. Or, an
LEA might require that each provider carry a reasonable amount of
liability insurance if the LEA requires this of other contractors that
serve its students. These types of conditions are allowable, so long as
they are reasonable, do not subject SES providers to more stringent
requirements than apply to other contractors of the LEA, and do not have
the effect of inappropriately limiting educational options for parents.
Similarly, an LEA may include in its contracts with providers
administrative provisions dealing with such issues as the fees charged
to providers for the use of school facilities, the frequency of payments
to providers, and whether payments will be based, in whole or in part,
on student attendance.

**E-6. What resources are available to help an LEA inform parents and
implement SES well?**

The Department has produced a guidebook to assist LEAs with meeting
their obligations to notify parents about SES and public school choice
and to implement the requirements of the two provisions. The guidebook,
[Giving Parents Options: Strategies for Informing Parents and
Implementing Public School Choice and SES Under *No Child Left
Behind*]{.underline}, is available at
<http://www.ed.gov/admins/comm/choice/options/index.html>.

**F. IDENTIFYING ELIGIBLE STUDENTS**

**F-1. Who is eligible to receive SES?**

All students from low-income families who attend a Title I school that
is in its second year of school improvement, in corrective action, or in
restructuring are eligible to receive SES. Eligibility is not dependent
on whether a student is a member of a subgroup that did not make AYP, or
whether the student is in a grade that takes the statewide assessment
required by Section 1111 of the ESEA.

**F-2. How does an LEA determine eligibility for SES in schoolwide
programs and targeted assistance programs?**

Whether a school implements either a Title I schoolwide program or a
targeted assistance program, if the school is identified as in its
second year of school improvement, corrective action, or restructuring,
all students from low-income families attending the school are eligible
for SES. In other words, in a targeted assistance school, eligibility
does not depend on whether the student is receiving Title I services.
Note that in a schoolwide program, although all students are eligible
for Title I services, only students from low-income families are
eligible for SES.

**F-3. Which children may receive SES if the demand for services exceeds
the level that funds can support?**

If sufficient funds are not available to serve all eligible children, an
LEA must give priority to the lowest-achieving eligible students
*\[Section 1116(b)(10)(C); 34 C.F.R. §200.45(d)\]*. As noted in A-5, an
LEA must use fair and equitable procedures in determining which students
are the lowest achieving, and should use professional judgment in
applying those criteria *\[34 C.F.R. §200.46(a)(3)\]*. One possible
approach to prioritizing students would be for an LEA to establish a
cut-off score (on the State's assessments under Section 1111 of the ESEA
or another assessment), either on a school-by-school basis or for all
schools across the LEA, and make SES available to students whose scores
fall below the cut-off level. Alternatively, as noted in A-5, an LEA
might decide to focus services on students who are the lowest-achieving
in the subject or subjects that resulted in the school being identified
for improvement. Or it might decide that the best use of limited SES
funds is to focus on the lowest-performing students in particular
grades.

An LEA should not assume, before it contacts parents, that it will have
limited resources for SES. Rather, the LEA should notify all eligible
families of their children's eligibility. Only if more families request
SES than there are funds available to provide services should the LEA
set priorities to determine which eligible students can be served. The
LEA should review the information available about the performance of
eligible students and apply its priorities in a manner that is fair and
objective.

**F-4. What data must an LEA use to identify low-income students?**

For the purposes of determining eligibility for SES, an LEA must
determine family income on the same basis that the LEA uses to make
allocations to schools under Title I, Part A *\[Section 1116(e)(12)(A);
34 C.F.R. §200.45(b)\]*.

**F-5. May an LEA use information from the National School Lunch Program
(NSLP) to determine student eligibility for SES?**

The law specifically requires an LEA to use the same data to determine
eligibility for SES that it uses for making within-district Title I,
Part A allocations to schools; historically, most LEAs use school lunch
data for that purpose. However, determining student eligibility for SES
(unlike determining Title I allocations) requires identifying individual
students as coming from low-income families. This has led to questions
about whether LEAs may use school lunch data to determine student
eligibility for SES while abiding by the student privacy provisions of
the NSLP.

Section 9 of the Richard B. Russell National School Lunch Act (NSLA)
*\[42 U.S.C. 1758\]* establishes requirements and limitations regarding
the release of information about children certified for free and reduced
price meals provided under the NSLP. The NSLA allows school officials
responsible for determining free and reduced price meal eligibility to
disclose *aggregate* information about children certified for free and
reduced price school meals. Additionally, the statute permits
determining officials to disclose *the names of individual children*
certified for free and reduced price school meals and the child's
eligibility status (whether certified for free meals or reduced price
meals) to persons directly connected with the *administration or
enforcement of a Federal or State education program*.

Because Title I is a *Federal education program,* determining officials
may disclose a child's eligibility status to persons directly connected
with, and who have a need to know, a child's free and reduced price meal
eligibility status in order to administer the Title I SES requirements.
The statute, however, does not allow the disclosure of any other
information obtained from the free and reduced price school meal
application or obtained through direct certification. School officials
should keep in mind that the intent of the confidentiality provisions in
the NSLA is to limit the disclosure of a child's eligibility status to
those who have a "need to know" to properly administer and enforce a
Federal education program. As such, schools should establish procedures
that limit access to a child's eligibility status to as few individuals
as possible.

School officials, prior to disclosing individual information on the NSLP
eligibility of individual students, should enter into a memorandum of
understanding or other agreement to which all involved parties
(including both school lunch administrators and educational officials)
would adhere. This agreement should specify the individuals who would
have access to the information, how the information would be used in
implementing Title I requirements, and how the information would be
protected from unauthorized uses and third-party disclosures, as well as
include a statement of the penalties for misuse or improper disclosure
of the information.

Additional information on this issue is provided in a December 17, 2002
letter from the Departments of Education and Agriculture (available at
<http://www.ed.gov/programs/titleiparta/letter121702.html>).

**F-6. How may an LEA that operates school lunch programs under
Provisions 2 and 3 of the NSLA determine which students are eligible for
SES?**

"Provision 2" and "Provision 3" of the NSLA allow schools that offer
students lunches at no charge, regardless of the students' economic
status, to certify students as eligible for free or reduced price
lunches once every four years and longer, under certain conditions. NSLP
regulations prohibit schools that make use of these alternatives from
collecting eligibility data and certifying students on an annual basis
for other purposes.

For the purpose of identifying students as eligible for SES, school
officials may deem all students in Provision 2 and Provision 3 schools
as "low-income." Additional information on this issue is provided in a
February 20, 2003 letter from the Departments of Education and
Agriculture (available at
<http://www.ed.gov/programs/titleiparta/22003.html>). However, as set
forth in F-3, LEAs must give priority to serving the lowest-achieving
eligible students if the level of demand for SES exceeds the level that
available funds can support.

**F-7. How does an LEA determine the eligibility of homeless students
for SES?**

Homeless students, like other students, are eligible to receive SES if
they are from low-income families (which will most likely be the case
for almost every homeless child) and are enrolled in a Title I school in
its second year of improvement, in corrective action, or in
restructuring. The place of residence of a student (or the lack of a
permanent residence) is not an issue in determining eligibility for any
child.

**F-8. Are children who attend private schools eligible to receive
SES?**

No. Only children from low-income families attending Title I public
schools identified for improvement, corrective action, or restructuring
-- not all children participating in Title I -- are eligible to receive
SES.

**G. providing information to parents**

**G-1. When should an LEA notify parents about their child's eligibility
for SES, and when should services begin?**

At least annually, an LEA must provide notice to the parents of each
eligible student regarding the availability of SES. Specific information
about the timing of services should be provided directly to the parents
of eligible students so that there is sufficient time to allow them to
select an SES provider.

Ideally, an LEA should notify parents about their options to transfer
their child to another public school or to receive SES (provided their
child is eligible) at the same time so that parents can make an informed
decision about which option would be best for their child. However,
because an LEA must provide notice regarding public school choice
"sufficiently in advance of, but no later than 14 calendar days before,
the start of the school year" *\[34 C.F.R. §200.37(b)(4)(iv)\]*, an LEA
may not yet have available all of the required SES information to
provide to parents at that time. The Department strongly encourages
that, at a minimum, an LEA acknowledge in its public school choice
notification to parents that SES are also an option for eligible
students and that additional information about SES will be forthcoming.
The LEA should then provide the required information as early as
possible in the school year, and begin offering SES in a timely manner
thereafter. (See G-2.)

**G-2. What information must an LEA include in its notice to parents
about SES?**

An LEA should work to ensure that parents have comprehensive,
easy-to-understand information about SES *\[Section 1116(e)(2)\]*. An
LEA's notice to parents must:

1.  Explain how parents can obtain SES for their child *\[Section
    1116(e)(2)(A)(i); 34 C.F.R. §200.37(b)(5)(i)\]*.

2.  Identify each approved SES provider within the LEA or in its general
    geographic location, including providers that are accessible through
    technology, such as distance learning *\[Section 1116(e)(2)(A)(ii);
    34 C.F.R . §200.37(b)(5)(ii)(A)\]*.

3.  Describe briefly the services, qualifications and evidence of
    effectiveness for each provider *\[Section 1116(e)(2)(A)(iii); 34
    C.F.R. §200.37(b)(5)(ii)(B)\]*. (See G-4.)

4.  Indicate providers that are able to serve students with disabilities
    or LEP students *\[34 C.F.R. §200.37(b)(5)(ii)(B)\]*. (See G-4.)

5.  Include an explanation of the benefits of receiving SES *\[34 C.F.R.
    §200.37(b)(5)(ii)(C)\]*. (See G-5.)

Additionally, an LEA should describe the procedures and timelines that
parents must follow to select a provider to serve their child, such as
where and when to return a completed application, when and how the LEA
will notify parents about enrollment dates and start dates; and whom to
contact in the LEA for more information. If an LEA anticipates that it
will not have sufficient funds to serve all eligible students, it should
also include in the notice information on how it will set priorities in
order to determine which eligible students receive services. (See F-3.)

LEAs may provide additional information in the notice to parents, as
appropriate. However, any additional information should be balanced and
should not attempt to dissuade parents from exercising their option to
obtain SES for their child.

**G-3. Are there requirements for the form of an LEA's SES notice?**

Yes. An LEA's notice to parents regarding their option to obtain SES for
their child must be:

1.  Easily understandable, in a uniform format, including alternate
    formats upon request, and to the extent practicable, in a language
    the parents can understand *\[Section 1116(e)(2)(A); 34 C.F.R.
    §200.36(b)\]*; and

2.  Clear and concise, and clearly distinguishable from other
    information on school improvement that an LEA sends to parents *\[34
    C.F.R. §200.37(b)(5)(iii)\]*.

An LEA should ensure that it provides informative content to parents,
including providing all required SES information, as described in G-2,
as well as a clear explanation of the LEA's SES procedures and timelines
that may be helpful to parents. Equally essential to any parent notice
is readability; an SES notice with legal and professional education
terms may prove uninformative and intimidating to parents. To ensure
that the notice is "clear and concise," an LEA should use terms that
parents easily understand, such as "free tutoring" instead of, or in
addition to, "supplemental educational services," and include other key
phrases that clearly convey the benefits of SES, such as "help your
child succeed in school." An LEA may want to assess a notice's
readability against readability indexes; the notice should use simple,
plain language and, if practicable and appropriate, be translated into
multiple languages.

The SES notice to parents must also be "clearly distinguishable" from
other school improvement information *\[34 C.F.R. §200.37(b)(5)(iii)\]*.
This does not preclude an LEA from including the SES notice in the same
mailing as other information about school improvement, but the SES
notice must stand out so that parents can easily recognize and
understand it, apart from the other information they receive on their
school's improvement status. For example, an LEA might print its SES
notice on brightly colored paper and in large, bold font so that parents
are more likely to read it.

**G-4. What information should an LEA include in its notice to parents
about each provider that is available to serve students in the LEA?**

An LEA must include in its notice to parents information about the
services, qualifications, and evidence of effectiveness for each SES
provider able to serve students in the LEA *\[Section
1116(e)(2)(A)(iii); 34 C.F.R. §200.37(b)(5)(ii)(B)\]*. In describing
each provider's services, either in the letter itself or in an
accompanying document, an LEA should include information on the grade
levels each provider will serve; the subjects in which services will be
provided; where and when each provider will offer its program; how many
sessions each provider will offer and how long each session will last;
the pupil/tutor ratio for each provider; qualifications of a provider's
tutors, if available; whether a provider operating off-site will offer
transportation for students; and, as required in 34 C.F.R.
§200.37(b)(5)(ii)(B), whether a provider is able to serve students with
disabilities or LEP students. Many LEAs develop a provider brochure
containing this information that is colorful and easy for parents to
understand and use in selecting an appropriate provider.

**G-5. What information should an LEA include in the notice in order to
meet the requirement that the notice explain the benefits of receiving
SES?**

An LEA has discretion in determining what information regarding the
benefits of SES to include in its notice to parents. In addition to
benefits substantiated by research conducted by the Department or by
States, LEAs, or other entities related to improving student academic
proficiency, an LEA's notice could include, for example, the fact that
SES are free tutoring that can be tailored to the particular academic
needs of each participating student, are available at no cost to
parents, and make productive use of a student's out-of-school time in a
safe environment. Additionally, an LEA could note that SES allow parents
to select the approved provider of their choice that best meets their
child's academic needs.

**G-6. How must an LEA notify parents of their SES options?**

Federal regulations require that, throughout the school improvement
process, an LEA provide information to parents (1) directly, through
such means as regular mail or e-mail (see G-7) and (2) through broader
means of dissemination such as the Internet, the media, and public
agencies serving the student population and their families. LEAs must
distribute information to parents regarding SES through both of these
means *\[34 C.F.R. §200.36(c)\]*.

LEAs that are most effective in reaching eligible families are those
that provide information to parents through as many means as
practicable, including less traditional forms of parent outreach, such
as radio and TV ads and notices at venues that parents may frequent,
such as movie theaters, shopping malls, beauty parlors, and places of
worship. LEAs should also enlist schools in their efforts to reach
parents. For example, an LEA could use back-to-school nights as forums
to explain SES to parents and offer them advice about enrolling their
children. As part of this effort, an LEA should educate teachers and
principals about SES so as to be sure that they can effectively and
objectively assist parents in making their selections if parents request
such assistance.

In providing this information, LEAs must take care not to disclose to
the public the identity of any student eligible for SES without the
written permission of the student's parents *\[Section 1116(e)(2)(D); 34
C.F.R. §200.36(d)\]*.

**G-7. How may an LEA meet the requirement to notify parents directly of
their SES options?\
**

To meet the requirement to provide information directly to parents, an
SEA may require that LEAs notify parents of their SES options through
regular mail; however, the SEA is not required to do so. In the absence
of such a requirement from its SEA, an LEA may voluntarily decide to
meet its responsibility to inform parents directly by notifying parents
through other means, such as through e-mail or by sending a notice home
in a student's backpack.

In setting policy in this area, an SEA and its LEAs should consider
which method of direct communication is likely to be most effective in
reaching parents of eligible students and, in doing so, may wish to take
into account such factors as family mobility, student grade level, and
access to the Internet. An SEA and LEA may together find that the
particular circumstances of the LEA, or of a subgroup of eligible
students within the LEA, may favor one type of direct communication over
another. LEAs are encouraged to notify parents through multiple means,
so as to further increase the likelihood of reaching parents.

Additionally, SEAs and LEAs should bear in mind that an LEA must be able
to demonstrate that it has met the parent notification requirement. If
an LEA chooses to send notices home in a student's backpack, the SEA and
LEA should consider the evidence that would sufficient to verify that
the LEA has met its responsibility. An LEA could, for instance, ask for
signed responses from parents acknowledging that they have received the
notice. Alternatively, the LEA could show that it has met the
requirement to notify parents by demonstrating a sufficient level of
demand for SES, through the number of students who request or
participate in SES.

**G-8. How should an LEA distribute sign-up forms to parents?**

An LEA should make its SES sign-up form accessible to parents and should
widely distribute the form. For example, an LEA could post the form on
its Web site and mail the form home to parents, as well as leave copies
of the form at the schools that have students eligible for SES, at LEA
offices, and at sites where parents may go, such as libraries or
community centers. Additionally, an LEA should not restrict the
distribution of sign-up forms (including the photocopying of forms) by
individuals and organizations outside the LEA. Finally, LEAs should
ensure that they have an open, reasonable, and convenient process for
parents to return completed sign-up forms.

Note that an LEA that spends less than its 20 percent obligation and
uses the unexpended amount for other allowable activities ***must***,
among other things, ensure that sign-up forms for SES are distributed
directly to all eligible students and their parents and are made widely
available and accessible through broad means of dissemination, such as
the Internet, other media, and communications through public agencies
serving eligible students and their families *\[34 C.F.R.
§200.48(d)(2)(i)(B)(2)\]*. (See L-1.)

**G-9. May an LEA set a deadline by which parents must request SES?**

Yes. For any "enrollment window" an LEA provides, an LEA may establish a
reasonable deadline by which parents must sign up for services. To
ensure that parents can make informed decisions about requesting SES and
selecting a provider, an LEA should make certain that parents have
sufficient time, information, and opportunity to make these decisions.
The Department encourages all LEAs to provide more than one enrollment
window, at separate points during the school year, in order to expand
SES enrollment opportunities for families, or to allow enrollment
throughout the year. An open enrollment process that lasts throughout
the school year would accommodate students who are newly enrolled in a
school that is identified for improvement at the beginning of or during
the school year and would also meet the criterion in 34 C.F.R.
§200.48(d)(2)(i)(B)([3]{.underline}) for LEAs that spend less than their
20 percent obligation. (See L-10.) Whatever procedures an LEA uses, it
must ensure that it meets all demand for SES from eligible students,
consistent with the LEA's obligation to spend an amount equal to 20
percent of its Title I allocation for choice-related transportation,
SES, and parent outreach and assistance.

Note that an LEA that spends less than its 20 percent obligation and
uses the unexpended amount for other allowable activities ***must***,
among other things, provide a minimum of two enrollment windows, at
separate points in the school year, that are of sufficient length to
enable parents of eligible students to make informed decisions about
requesting SES and selecting a provider. (See L-1.)

**G-10. What information must an LEA include on its Web site about
SES?**

An LEA is required to prominently display on its Web site the following
information regarding SES:

1.  Beginning with data from the 2007-2008 school year, and for each
    subsequent school year, the number of students who were eligible for
    and the number of students who participated in SES *\[34 C.F.R.
    §§200.39(c)(1)(ii); 200.42(b)(5); 200.43(b)(5);
    200.43(c)(1)(iii)\]*; and

2.  For the current school year, a list of SES providers approved by the
    State to serve the LEA and the locations where services are provided
    *\[34 C.F.R. §§200.39(c)(1)(iii); 200.42(b)(5); 200.43(b)(5);
    200.43(c)(1)(iii)\]*.

An LEA should display this information on its Web site in a place that
is visible and easy for parents to locate. Note that an LEA must list on
its Web site all SES providers approved by the State to serve the LEA.
This includes SES providers approved by the State that are located
within the LEA, as well as in its general geographic location, and
providers accessible through distance learning technology *\[34 C.F.R.
§§200.37(b)(5)(ii)(A); 200.39(c)(1)(iii)\]*.

An LEA also must display on its Web site information on aspects of
public school choice. For more information, see the Public School Choice
Non-Regulatory Guidance, D-8, at:
<http://www.ed.gov/policy/elsec/guid/schoolchoiceguid.doc>.

**G-11. By when must an LEA post this information on its Web site?**

An LEA must post the information, described in G-10, in a timely manner
to ensure that parents have current information on their options *\[34
C.F.R. §200.39(c)(1)\]*. An LEA must post information on approved
providers as early in the school year as possible so that parents can
access this information when making decisions about their child's
participation in SES, and update this information periodically
throughout the school year, as updates become necessary. Regarding the
number of students who were eligible for and who participated in SES in
prior years, an LEA should display this information as soon as it
becomes available.

Beginning with the 2008-2009 school year, an LEA must post data on the
number of students who were eligible for and participated in SES during
the 2007-2008 school year, and must post the list of SES providers for
the 2008-2009 school year. For the 2009-2010 school year, the LEA must
post data on the number of students who were eligible for and
participated in SES during the 2007-2008 and 2008-2009 school years, and
must post the list of providers for the 2009-2010 school year. An LEA
must continue posting historical data on SES participation and
eligibility, and its current list of providers, in subsequent school
years accordingly.

**G-12. Do all LEAs have to display the SES information on their Web
sites?**

All LEAs must prominently display information on student eligibility and
participation in SES, and the list of approved SES providers and
location of services, unless the LEA (1) does not have any Title I
schools in year two of improvement, in corrective action, or in
restructuring; (2) is not able to offer SES because there are no
approved providers able to serve in the LEA; or (3) is required to offer
SES, but does not maintain a Web site, in which case the SEA must
display the required information, on behalf of the LEA, on the SEA's Web
site *\[34 C.F.R. §200.39(c)(2)\]*. An LEA that is required to offer SES
but does not maintain a Web site should notify its SEA before the start
of the school year that it does not have a Web site. An LEA must provide
the information required so that the SEA can meet its obligation to post
the required information on its own Web site. (See B-9.)

An LEA that no longer has any Title I schools identified for school
improvement, corrective action, or restructuring, or is no longer able
to offer SES because it has no available providers, is encouraged to
continue to display on its Web site historical data on student
eligibility for and participation in SES from prior school years,
although it is not required to do so. **\
**

**G-13. What other information should an LEA display on its Web site to
help parents understand their SES options?**

An LEA's Web site should include information on which providers are able
to serve student with disabilities or LEP students, and other
information, such as the LEA's SES timeline and procedures for student
enrollment, to help parents make informed decisions about their SES
options. Additionally, an LEA could include information, obtained from
the SEA's Web site, on the LEA's 20 percent obligation and per-pupil
allocation.

**G-14. How can LEAs make their outreach to parents more successful?**

Whenever possible, an LEA should try to personalize the SES process for
parents. For example, an LEA could consider having staff or volunteers
on hand to help parents understand and complete the enrollment
application. In addition, parent outreach centers and community- and
faith-based organizations may be particularly well-suited to help
parents with the process. An LEA should have a specific and designated
contact person, with a phone number and email address whom parents can
contact with questions. Additionally, an LEA could let parents register
for SES online. These options are in addition to the required actions an
LEA must take to implement SES by notifying parents in a way that is
clear and concise, and clearly distinguishable from other school
improvement information, and by prominently displaying certain SES
information on its Web site. In addition, LEAs spending less than their
20 percent obligation may be required to partner with outside groups, if
practicable, to help inform parents about SES. (See L-1.)

If few eligible parents sign up for services, an LEA should evaluate its
outreach efforts and consider the extent to which its efforts meet the
following six communication goals for designing and implementing
effective outreach strategy to parents: (1) get parents' attention; (2)
inform them about their SES options; (3) help them understand how to
obtain services; (4) motivate parents to take action to exercise their
choices; (5) encourage parents to follow and communicate with the
provider about their child's progress; and (6) encourage parents to
provide feedback regarding the impact and quality of the services their
child receives. (These communication goals are adapted from *Innovations
in Education: Creating Strong Supplemental Educational Services
Programs*, available at:
<http://www.ed.gov/admins/comm/suppsvcs/sesprograms/index.html>.)

**H. ARRANGING FOR SUPPLEMENTAL EDUCATIONAL SERVICES**

**H-1. What must an LEA include in its agreement with a provider?**

Once parents select a provider for their child, an LEA must enter into
an agreement with the provider that includes the following:

1.  Specific achievement goals for the student, developed in
    consultation with the student's parents and the provider *\[Section
    1116(e)(3)(A); 34 C.F.R. §200.46(b)(2)(i)(A)\]*;

2.  A description of how the student's progress will be measured and how
    the student's parents and teachers will be regularly informed of
    that progress *\[Section 1116(e)(3)(A), (B); 34 C.F.R.
    §200.46(b)(2)(i)(B), (ii)\]*;

3.  A timetable for improving the student's achievement *\[Section
    1116(e)(3)(A); 34 C.F.R. §200.46(b)(2)(i)(C)\]*;

4.  A provision for terminating the agreement if the provider fails to
    meet the student's specific achievement goals and timetables
    *\[Section 1116(e)(3)(C); 34 C.F.R. §200.46(b)(2)(iii)\]*;

5.  Provisions governing payment for the services, which may include
    provisions addressing missed sessions *\[Section 1116(e)(3)(D); 34
    C.F.R. §200.46(b)(2)(iv)\]*;

6.  A provision prohibiting the provider from disclosing to the public
    the identity of any student eligible for or receiving SES without
    the written permission of the student's parents *\[Section
    1116(e)(3)(E); 34 C.F.R. §200.46(b)(2)(v)\]*; and

7.  An assurance that SES will be provided consistent with applicable
    health, safety, and civil rights laws *\[Section 1116(e)(5)(C)\]*.
    (See C-19, C-31, C-32.)

In the case of a student with a disability, the achievement goals,
measurement and reporting of progress, and timetable described in items
1 through 3 above must be consistent with the student's IEP under
Section 614(d) of the IDEA *\[Section 1116(e)(3)(A); 34 C.F.R.
§200.46(b)(3)\]*. In the case of a student covered by Section 504, the
achievement goals, measurement, and reporting must be consistent with
the student's individualized services under Section 504 *\[34 C.F.R.
§200.46(b)(3)\]*. SES must be in addition to, and not a substitute for,
the instruction and services required under the IDEA and Section 504,
and should not be written into a student's IEP or Section 504 plan.

**H-2. Who is responsible for developing the individual agreements for
students receiving SES?**

Section 1116 of the ESEA requires "*the* *local educational agency* to
develop, in consultation with parents (and the provider chosen by the
parents) a statement of specific achievement goals for the student, how
the student's progress will be measured, and a timetable for improving
achievement" *\[Section 1116(e)(3)(A) (emphasis added)\].*

It is the responsibility of the LEA, not the responsibility of a
provider, to ensure that an agreement is completed for each student
participating in SES and that each agreement includes the information
required under the statute. However, an LEA and a provider may agree
that the provider will complete, on behalf of the LEA, the agreement for
each student the provider serves. An LEA cannot require a provider to
develop the agreements for the students it serves, absent the provider's
consent. Ultimately, the LEA is responsible for reviewing and approving
all agreements, and for making sure that all agreements, whether
developed by the LEA or by a provider on behalf of the LEA, are
completed for all students participating in SES and include the required
information.

**H-3. If an LEA is an approved provider, what is its responsibility
with respect to a student agreement?**

An LEA that is a provider must prepare an agreement that contains the
required information listed in H-1. Although the LEA is not formally
entering into an agreement with itself as the provider, the information
is necessary so that parents of a student receiving services from the
LEA know, for example, the achievement goals for the student, how
progress will be measured, and the timetable for improving the student's
achievement.

**H-4. Must an LEA consult with parents in the development of a
student's individual agreement?**

Yes, subject to the qualifications discussed in H-5. Section
1116(e)(3)(A) of the ESEA requires consultation with a student's parents
in developing the student's individual agreement. The term "parent" as
defined in Section 9101(31) of the ESEA, includes a legal guardian or
other person standing in loco parentis (such as a grandparent or
stepparent with whom the child lives, or a person who is legally
responsible for the child's welfare).

**H-5. Must an LEA obtain a parent's signature as evidence of meeting
the consultation requirement?**

The statute does not specifically require a parent's signature as
evidence that consultation on a student's agreement has occurred.
Rather, an LEA must offer parents a genuine opportunity to consult on
the terms of their child's individual student agreement.

An LEA cannot use the consultation requirement to deny SES to a child
whose parents have not participated in the development of their child's
SES plan but who have otherwise requested that their child receive SES.
An LEA must be able to demonstrate that it (or a provider acting on its
behalf) has made reasonable efforts to consult with a parent of each
student who has requested SES. This may include attempts to reach
parents through telephone, email, home visits, at school events, or
other means.

An SEA should determine what it considers reasonable efforts by its LEAs
to consult with parents, and should provide guidance to its LEAs that
outlines when, how often, and through what means an LEA (or a provider
on behalf of the LEA) must attempt to consult with parents before it can
deem the consultation requirement to be met. An SEA could also develop a
broad definition of "consultation" that includes conversations with
parents by phone or email. We encourage SEAs to establish reasonable
requirements for their LEAs in this area and to ensure that services for
students are not delayed because LEAs (or providers on behalf of LEAs)
have not yet consulted with parents.

**H-6. How can an LEA facilitate parents' participation in the
consultation process?**

To facilitate parents' participation in the consultation process, an LEA
could indicate on its SES enrollment forms that the LEA is required to
consult with parents during the development of individual student
agreements and that parents' participation in this process is expected
and appreciated. Additionally, an LEA could include, on the SES
enrollment form or through other means, an opportunity for parents to
express their preferred method of consultation.

**H-7. For how long must a provider offer services?**

In general, a provider must continue to provide SES to eligible students
who are receiving such services until the end of the school year in
which such services were first received *\[Section 1116(e)(8); 34 C.F.R.
§200.45(c)(3)\]*. However, the availability of funds and the intensity
of services selected (i.e., the number of sessions per week) may limit
the provision of services to a shorter period of time. In such case, the
parent should be made aware of the anticipated duration of services and
this information should be detailed in the child's individual student
agreement.

**H-8. How often should parents and teachers receive information about
student progress?**

As part of the agreement described in H-1, the LEA and provider, after
consultation with the parents, must agree to a schedule for informing
parents and the student's teacher(s) about the student's progress. The
intent of this requirement is to ensure that instructional goals are
being met and that parents and teachers are aware of whether SES are
helping the student improve his or her academic achievement.

**H-9. If parents are not satisfied with the SES their child is
receiving, or with their child's academic progress, may they request and
receive a new provider?**

Although neither the law nor the regulations require an LEA to allow
students to change providers during the course of a school year, an LEA
may allow for such changes if, for example, a parent believes the
provider is unlikely to be able to meet their child's progress goals. If
a number of parents request a change of a particular provider because of
the provider's likely inability to meet students' goals, the SEA may
need to monitor more carefully the provider's provision of SES.
Additionally, an LEA may want to consider reimbursing providers for
services provided, rather than paying providers up-front for an entire
semester or year, in order to make it easier to arrange for students to
change providers during the year.

**H-10. What actions must an LEA take if the demand for SES from a
particular provider is greater than the provider can meet?**

An approved provider might not have the capacity to serve all the
students who select that provider. In anticipation of such a situation,
LEAs must use a fair and equitable process for selecting students to
receive services *\[Section 1116(e)(2)(C); 34 C.F.R. §200.46(a)(3)\]*.

**H-11. What happens if there are no approved providers that offer
services in an LEA?**

If there are no approved providers that offer services in an LEA, the
LEA may request a waiver from the SEA of all or part of the SES
requirement. An SEA may only grant a waiver if it determines that: (1)
none of the approved providers can make their services available in the
LEA or within a reasonable distance of the LEA; and (2) the LEA provides
evidence that it cannot provide these services itself *\[Section
1116(e)(10)(A); 34 C.F.R. §200.45(c)(4)(i)\]*.

The SEA must notify the LEA in writing of its approval or disapproval of
an LEA's waiver request within 30 days of receiving the request and if
it has disapproved the request, the reasons for the disapproval
*\[Section 1116(e)(10)(B); 34 C.F.R. §200.45(c)(4)(ii)\]*. Where
services appear limited, an SEA should seek to include on its list of
approved providers those providers who deliver services using
e-learning, online, or distance learning technologies. Prior to
approving a waiver, an SEA should require the LEA to explain why it is
unable to use distance-learning technologies to make SES available to
eligible students.

**H-12. For how long is an LEA's waiver from implementing the SES
requirements in effect?**

States are required to update at least annually the list of approved SES
providers. Because of this requirement, a waiver may not extend beyond
the next timeframe for updating the list. With each updated list of
providers, the LEA must request a waiver from implementing the SES
requirements *\[34 C.F.R. §200.45(c)(4)(iii)\]*.

**H-13. If an LEA cannot provide Title I public school choice to
students in a school in its first year of school improvement and the LEA
voluntarily decides to offer SES one year earlier than is required under
the statute, do the SES requirements in Section 1116(e) apply?**

Some LEAs may have no schools available to which students can transfer
for Title I public school choice. This situation might occur when all
schools at a grade level are in school improvement, when an LEA has only
a single school at that grade level, or when an LEA's schools are so
remote from one another that choice is impractical. In these situations,
an LEA may wish to offer SES to students who are enrolled in schools
that are only in their first year of improvement. Because an LEA is not
required to offer SES to eligible students enrolled in a school in its
first year of school improvement, the requirements in Section 1116(e) of
the ESEA do not apply. In other words, such an LEA would not need to
provide SES only to low-income students, to contract only with
State-approved providers, or to fund SES at the per-pupil amount set
forth in Section 1116(e)(6) of the ESEA.

However, because an LEA will be required to offer SES consistent with
the statutory requirements in Section 1116(e) of the ESEA to students in
that school the next year if the school remains in improvement status,
it would help avoid confusion and administrative complexity if the LEA,
in that first year, abides by the requirements of Section 1116(e) as
much as possible. If an LEA uses Title I funds to provide SES-like
services outside the requirements of Section 1116(e), it must ensure
that those services meet all the requirements governing the use of Title
I, Part A funds, such as serving only students who are at-risk of
failing to meet the State's academic achievement standards in a targeted
assistance program *\[see generally Sections 1114, 1115\]*.

# 

# H-14. May an LEA offer SES to students who are at risk of failing to meet the State's academic achievement standards, but who are not low-income? 

# 

# Yes. However, an LEA may not "count" funds spent on providing SES to non-low-income students toward meeting its 20 percent obligation. Moreover, if an LEA uses Title I funds to provide SES to students not covered under the requirements in Section 1116(e) of the ESEA, those services must meet all other Title I requirements. In addition to Title I, Part A funds, an LEA could use other appropriate Federal, State, or local funds to provide SES to students who are not from low-income families. 

**H-15. How may an LEA fairly select providers to work in school
buildings if there is not enough room in the schools for all SES
providers to deliver their programs on-site?**

Experience has demonstrated that many parents want to enroll their child
in SES programs that are delivered in their child's school building
because this eliminates the need to transport their child to another
site after school has ended. The Department, therefore, encourages LEAs
to allow providers to use school facilities to deliver SES, either free
of charge or for a reasonable fee. LEAs should ensure that the use of
the school facilities by providers is on the same basis and terms as are
available to other groups that seek access to the school facilities.
However, if many providers are approved to serve an LEA, or if other
after-school programs use an LEA's schools, it may not be possible to
have all providers provide SES in an LEA's school buildings.

Therefore, an LEA should select providers to operate on-site in a manner
that is fair, open, and objective. Whatever process an LEA uses, it
should strive to provide parents with as diverse and large a group of
on-site providers as possible, including faith-based and other
community-based organizations, and business groups.

Note that an LEA that spends less than its 20 percent obligation and
uses the unexpended amount for other allowable activities ***must***,
among other things, ensure that SES providers are given access to school
facilities, using a fair, open, and objective process, on the same basis
and terms as are available to other groups that seek access to school
facilities. (See L-1.)

**H-16. May an LEA provide a list of eligible students to an approved
SES provider so that the provider can contact parents regarding its
services?**

No. An LEA must comply with the prior written consent requirements of
the Family Educational Rights and Privacy Act (FERPA) when disclosing
information on students eligible for SES. Those provisions require the
written consent of a parent before an LEA may disclose the identity of
an eligible student. (For more information, see 34 C.F.R § 99.30,
available at <http://www.ed.gov/policy/gen/reg/ferpa/rights_pg4.html>.)
Furthermore, Title I of the ESEA contains specific safeguards to protect
the privacy of each child who is eligible for or receives SES. An LEA
may not disclose to the public or to an approved provider the identity
of any student who is eligible for, or receiving, SES without the
written permission of the student's parents *\[Section 1116(e)(2)(D); 34
C.F.R. §200.46(a)(6)\]*. In addition, an SES provider is prohibited from
disclosing to the public the identity of any student who is eligible
for, or receiving, SES without the written permission of the student's
parents *\[Section 1116(e)(3)(E); 34 C.F.R. §200.46(b)(1)(v)\]*.

**H-17. How may an LEA help providers disseminate information on their
services to parents?**

There are a number of ways in which an LEA may ensure that information
on SES providers is made available to parents of eligible students. For
example an LEA may:

1.  Ask providers to give the LEA stamped envelopes containing
    information about the program to be mailed by the LEA to parents of
    eligible students. Before doing so, the LEA could let the provider
    know *how many* students are eligible, but not the students' names.

2.  Give providers "directory information" on all students in the LEA
    (whose parents have not opted out of "directory information") and
    allow providers to send a mailing to all parents of students in the
    LEA. (Note, however, that parents of students who are not eligible
    would also receive such a mailing.)

3.  Hold an "open house" or "provider fair" and invite parents to come
    meet with providers about their SES programs.

4.  Provide information about providers to parents in school
    newsletters.

5.  Leave information about each provider at eligible schools for
    parents to review when they visit the school. Many providers have
    brochures and promotional materials that can be left at school sites
    for parents to read.

**H-18. May an LEA disclose the identity of a student, as well as
educational records regarding the student, to an SES provider selected
by the student's parents?**

An LEA may disclose pertinent information to an SES provider about a
student whose parents have selected the provider, but only after the
student's parent has provided written consent. With the consent of a
parent, the LEA may disclose information about the student's academic
record in order to assist the provider in determining the student's
strengths and weaknesses. An LEA might want to consider including a
parental consent signature line on its SES application form so that
parents can provide consent to share information with providers at the
same time that they express their interest in receiving services from a
specific provider. Acknowledgment of the consent must be signed and
dated and specify the records that may be disclosed by either the LEA or
the provider; state the purpose of the disclosure; and identify the
party or class of parties to whom the disclosure may be made. (For more
information, see 34 C.F.R. §99.30, available at
<http://www.ed.gov/policy/gen/reg/ferpa/rights_pg4.html>.)

**H-19. Does the Family Educational Rights and Privacy Act (FERPA)
prohibit an SES provider from contacting parents of students to whom it
previously provided SES?**

FERPA does not prohibit SES providers from using contact information for
parents of students they previously served to contact those parents
again regarding their services. Thus, an SES provider may use
information it legally obtained under FERPA to contact parents for the
purpose of recruitment. However, FERPA does not permit a provider to
disclose to third parties the identity of any student who received or is
receiving SES, without the written consent of the student's parent.

**H-20. May an LEA prohibit or limit approved providers from promoting
their programs and the general availability of SES?**

No. Providers are allowed to market their services directly to members
of the community or to provide general information to the public about
the availability of SES; an LEA may not restrict them from doing so. An
LEA should provide logistical and program information to providers in
order to ensure that advertising includes correct information on such
issues as the procedures parents must follow in obtaining SES for their
children. Such coordination should help ensure that providers have ample
time to market their services and that parents are able to make informed
choices of SES providers. An LEA should also share its registration
forms with providers so that providers can help sign up students for
services.

**H-21. May an LEA terminate the services provided to an individual
student?**

Yes. An LEA may terminate a provider's provision of SES to an individual
student if the provider is unable to meet the student's specific
achievement goals and the timetable set out in the agreement between the
LEA and provider *\[Section 1116(e)(3)(C); 34 C.F.R.
§200.46(b)(2)(ii)\]*. The agreement between an LEA and a provider must
specify the terms and processes for terminating services. An LEA's
authority to terminate an agreement is limited to services provided to
an individual student (or students) and should not cover all students
served by a provider.

An LEA may also terminate its agreement with a provider if the provider
violates provisions in the agreement, such as provisions regarding
student progress reports, invoicing payment for services, protecting
student privacy, and complying with applicable health, safety, and civil
rights laws. Further, LEAs may terminate an agreement if a provider
fails to meet additional administrative or operational terms that may be
included in the agreement, such as conducting background checks on the
provider's employees, provided those terms are reasonable, do not
subject the provider to more stringent requirements than apply to other
contractors of the LEA, and do not have the effect of inappropriately
limiting educational options for students and their parents.

If an LEA terminates a provider's services, the LEA should, if possible,
allow the students the provider served to receive SES from another
provider. The LEA might accommodate students with their second or third
choice of provider if their original provider is no longer able to serve
them.

However, as explained in E-3, under no circumstances may an LEA refuse
to offer as an option to parents any provider on the State-approved list
because of program design concerns. If an LEA has general concerns about
the quality of a provider's services, the LEA should make its concerns
known to the SEA. Additionally, it is not within an LEA's authority to
remove a provider from the approved provider list or to terminate an
agreement with a provider for generally failing to raise student
achievement. Only an SEA may withdraw approval of a provider if, for two
consecutive years, the provider does not contribute to increasing the
academic proficiency of the students it serves *\[Section 1116(e)(4)(D);
34 C.F.R. §200.47(a)(4)(ii)\]*.

**I. THE ROLE OF PARENTS**

**I-1. How do parents select an SES provider?**

In choosing a provider from the State-approved list, parents may want to
consider, among other things: where and when the provider offers
services, how often and for how long students will be served, how
students are grouped during tutoring, whether the provider can meet the
academic needs of their child, the qualifications of tutors, and how
student progress will be measured.

Parents may request assistance from their LEA in selecting a provider.
In such cases, an LEA that also serves as an SES provider should offer
unbiased assistance focused on the specific academic needs of the
student and the preferences of the parent. An LEA is not permitted
merely to assign students whose parents request assistance to an LEA- or
school-administered SES program.

**I-2. May parents select any provider that appears on the
State-approved list?**

Yes. Parents may select any provider from the State-approved list, so
long as the provider is able to provide services in or near the area
served by the LEA; such services may include e-learning, online, or
distance learning technology.

If requested by parents, an LEA must assist parents in the selection of
a provider *\[Section 1116(e)(2)(B); 34 C.F.R. §200.46(a)(2)\]*.
However, parents are not required to accept the LEA's recommendation of
an SES provider.

**I-3. What is the role of parents in SES?**

Parents are to be active participants in the SES program.

At the *State level*, parents must be consulted in order to promote
participation by a greater variety of providers and to develop criteria
for identifying high-quality providers *\[Section 1116(e)(4)(A); 34
C.F.R. §200.47(a)(1)(i)\]*.

At the *local level*, parents must be able to choose from among all SES
providers approved by the State and available to serve students in the
area served by the LEA or within a reasonable distance of that area. In
addition, if they so choose, parents may obtain assistance from the LEA
in selecting a provider *\[Section 1116(e)(2)(B); 34 C.F.R.
§200.46(a)(2)\]*. Parents should also have an option to change or
terminate services, if they are not satisfied with the services they are
receiving.

At the *provider level*, parents, the LEA, and the provider chosen by
the parents must develop and identify specific academic achievement
goals for the student, measures of student progress, and a timetable for
improving achievement *\[Section 1116(e)(3)(A); 34 C.F.R.
§200.46(b)(2)(i)\]*. All parents whose children receive SES must be
regularly informed of their child's progress *\[Section 1116(e)(3)(B);
34 C.F.R. §200.46(b)(2)(ii)\]*.

**I-4. What is the role of parents in supporting student attendance at
SES sessions?**

# 

# Parents should ensure that their child attends the SES sessions in which he or she is enrolled. The LEA should ensure that parents are notified by the provider if their child is not attending regularly.

IV. **PROVIDER RESPONSIBILITIES**

**J. PROVIDING SUPPLEMENTAL EDUCATIONAL SERVICES**

#### 

#### J-1. What is required of SES providers?

An SES provider is responsible for meeting the terms of its agreement
with the LEA (see H-1), including:

1.  Enabling the student to attain his or her specific achievement goals
    (as established by the LEA, in consultation with the student's
    parents and the provider) *\[Section 1116(e)(3)(A); 34 C.F.R.
    §200.46(b)(2)(i)(A)\]*.

2.  Measuring the student's progress, and regularly informing the
    student's parents and teachers of that progress *\[Section
    1116(e)(3)(A), (B); 34 C.F.R. §200.46(b)(2)(i)(B), (ii)\]*.

3.  Adhering to the timetable for improving the student's achievement
    that is developed by the LEA in consultation with the student's
    parents and the provider *\[Section 1116(e)(3)(A); 34 C.F.R.
    §200.46(b)(2)(i)(C)\]*.

4.  Ensuring that it does not disclose to the public the identity of any
    student eligible for or receiving SES without the written permission
    of the student's parents *\[Section 1116(e)(3)(E); 34 C.F.R.
    §200.46(b)(2)(v)\]*.

5.  Providing SES consistent with applicable health, safety, and civil
    rights laws *\[Section 1116(e)(5)(C); 34 C.F.R.
    §200.47(b)(2)(iii)\]*. (See C-19, C-31, C-32.)

6.  Providing SES that are secular, neutral, and nonideological
    *\[Section 1116(e)(5)(D); 34 C.F.R. §200.47(b)(2)(ii)(D)\]*.

In the case of a student with a disability served under the IDEA, the
achievement goals, measurement and reporting of progress, and timetable
described in items 1 through 3 above must be consistent with (although
not included in) the student's IEP under Section 614(d) of the IDEA
*\[Section 1116(e)(3)(A); 34 C.F.R. §200.46(b)(3)\]*. In the case of a
student covered by Section 504, the goals, measurement and reporting of
progress, and timetable must be consistent with (although not included
in) the student's individualized services under Section 504 *\[34 C.F.R.
§200.46(b)(3)\]*.

#### 

#### J-2. May an SES provider offer services in the summer?

Yes, although in most cases it will be preferable to provide services
that take place over the course of the school year and that augment the
instruction a child receives through the regular school program because
the purpose of SES is to increase the academic achievement of students
on the State assessments required under Section 1111 of the ESEA
*\[Section 1116(e)(12)(C)(ii); 34 C.F.R. §200.45(a)(2)(i)\]*. Summer
programs, however, can also augment school-year instruction and can help
reduce "summer learning loss," which is frequently an issue for
educationally disadvantaged children. SEAs may thus approve programs
that provide services during the school year as well as during the
summer. An LEA may not effectively reject an approved provider whose
program is approved to provide services in the summer by setting dates
of service that exclude services from being provided in the summer
timeframe.

**J-3. How may a prospective SES provider meet the requirement to
provide information to an SEA on whether the provider has been removed
from any State's approved provider list?**

In approving a prospective provider, an SEA must consider information
from the provider on whether it has been removed from any State's list
of approved providers *\[34 C.F.R. §200.47(b)(3)(i)\]*. A prospective
provider should honestly and completely provide this information to the
SEA through the application process or through any other means that the
SEA requests. If the provider has been removed from any State's list of
approved providers, the provider should explain why it was removed. (See
C-21.)

**J-4. What resources are available to help prospective providers become
State-approved and to help approved providers strengthen the quality of
their programs?**

Many SEAs offer workshops and other forms of technical assistance to
prospective and approved SES providers. This assistance may be useful in
helping prospective providers understand the process they will have to
go through to become approved in a particular State and better equip
approved providers to work in the State.

[]{.mark}

**J-5. May an approved SES provider offer tutoring services to non-SES
eligible students alongside the eligible students that it serves in its
SES program?**

Yes. An approved provider may provide tutoring services to non-SES
eligible students alongside the eligible students that it serves so long
as the services that are provided to SES-eligible students are
consistent with the SES program design approved by the SEA (e.g., in
terms of educational program, pupil/tutor ratio, intensity of services,
etc.). If the SES program design approved by the SEA provides, for
example, for two one-hour sessions per week and a pupil/tutor ratio of
5:1, the provider must meet those terms for all SES-eligible students.
If, however, there are only four SES-eligible students receiving
services, the provider could add a non-SES eligible student to the
session and still fulfill its approved program design of a 5:1 ratio.

**J-6. How may a provider use the funds it receives from an LEA for
providing SES?**

The funds that an SES provider receives for providing SES are
essentially income for the provider in exchange for its providing
services to public school students. The funds may be used at the
discretion of the provider for any allowable costs.

####### V. FUNDING 

**K. FUNDING ISSUES**

**K-1. How much must an LEA spend on SES?**

The law establishes joint funding for choice-related transportation and
SES *\[Section 1116(b)(10)\]*. Unless a lesser amount is needed to meet
demand for choice-related transportation and to satisfy all requests for
SES, an LEA must spend an amount equal to 20 percent of its Title I,
Part A allocation (the "20 percent obligation"), before any
reservations, on:

1.  Choice-related transportation;

2.  SES; or

3.  A combination of (1) and (2).

In addition to paying for choice-related transportation and SES, an LEA
may spend up to 1 percent of its 20 percent obligation on parent
outreach and assistance *\[34 C.F.R. §200.48(a)(2)(iii)(C)\]*. (See
K-20.)

This flexible approach means that the amount of funding that an LEA must
devote to SES depends on how much it spends on choice-related
transportation. If the demand from parents of eligible students for
choice-related transportation exceeds 5 percent of the allocation, the
LEA must spend the equivalent of at least 5 percent of its allocation on
choice-related transportation. Similarly, if the cost of satisfying all
requests for SES exceeds 5 percent of an LEA's Title I, Part A
allocation, the LEA may not spend less than an amount equal to 5 percent
of its allocation on those services. The LEA may spend the remaining 10
percent on a combination of choice-related transportation and SES *\[34
C.F.R. §200.48(a)(2)(iii)(A)\]*.

The 20 percent obligation is a minimum requirement; an LEA may spend an
amount exceeding 20 percent of its Title I, Part A allocation if
additional funds are needed to meet all demand for choice-related
transportation and SES *\[34 C.F.R. §200.48(a)(3)\]*.

If an LEA spends less than the amount needed to meet its 20 percent
obligation, it must meet the criteria in 34 C.F.R. §200.48(d)(2)(i)
before it may use unexpended funds from the 20 percent obligation for
other allowable activities. (See L-1.) These criteria specify the
minimum conditions an LEA must meet in order to be considered as having
met all demand for choice-related transportation and SES. An LEA that
does not meet the criteria must spend the unexpended amount of its 20
percent obligation in the subsequent school year on choice-related
transportation or SES, in addition to the funds it is required to spend
to meet its 20 percent obligation in the subsequent school year *\[34
C.F.R. §200.48(d)\]*.

**K-2. Must an LEA reserve a portion of its Title I, Part A allocation
to pay for SES?**

No. The statutory phrase "an amount equal to" means that the funds an
LEA uses to pay the costs of choice-related transportation, SES, or
parent outreach and assistance need not come from its Title I, Part A
allocation, but may be provided from other allowable Federal, State,
local, and private sources.

**K-3. Does funding available for Title I, Part A through the
transferability provisions authorized under Section 6123 of the ESEA
change the base that must be used to calculate the 20 percent obligation
for choice-related transportation and SES?**

Yes. An LEA must include any funds transferred to Title I under Section
6123(b) of the ESEA in the base used in calculating its 20 percent
obligation.

In the alternative, an LEA may transfer funds to Title V, Part A or
Section 1003 of the ESEA, if the LEA receives Section 1003 funds, to
increase the amount of flexible funds available for SES or other school
improvement activities. Funds transferred to Title V, Part A or Section
1003 would not be included in the base used to calculate the LEA's 20
percent obligation. Note that an LEA may transfer funds to Title V, Part
A only through September 30, 2009 unless Congress appropriates
additional funds for this program.

**K-4. How may an LEA reserve Title I funds to help pay the costs of
choice-related transportation, SES, or parent outreach and assistance?**

An LEA that elects to use Title I, Part A funds to pay for
choice-related transportation, SES, or parent outreach and assistance
may (1) reserve any Title I, Part A funds needed for this purpose "off
the top" prior to making allocations to schools, or (2) adjust
allocations to schools to make available the required funds. If an LEA
chooses the second method -- adjusting allocations to schools -- it may
reserve funds from all Title I schools or only from schools identified
for improvement, corrective action, or restructuring (subject to the
limitation described in K-3).

**K-5. In reserving Title I, Part A funds for choice-related
transportation, SES, and parent outreach and assistance, an LEA is not
permitted under Section 1116(b)(10)(D) to reduce Title I allocations to
schools identified for corrective action or restructuring by more than
15 percent. How should an LEA calculate this 15 percent limit?**

An LEA may satisfy this requirement through one of two methods. First,
an LEA may simply set a floor of 85 percent of its prior-year allocation
for any school identified for corrective action or restructuring. Under
this approach, an LEA reserving Title I funds for choice-related
transportation, SES, or parent outreach and assistance would not be
permitted to reduce its allocation to an affected school below this 85
percent floor.

Under the second method, in making allocations to schools for a given
year, an LEA would calculate two allocations. For the first allocation,
the LEA would determine a "pre-reservation" allocation to schools before
setting aside funds for choice-related transportation, SES, or parent
outreach and assistance (but after any other reservations, such as those
made for administrative costs and district-wide activities such as
professional development and parental involvement). Then, for schools
identified for corrective action or restructuring, the LEA would
calculate what 85 percent of those schools' "pre-reservation" allocation
would be. The LEA would determine a second allocation for all schools
after reserving funds for choice-related transportation, SES, or parent
outreach and assistance. For schools in corrective action and
restructuring, the LEA would then compare this allocation with 85
percent of their "pre-reservation" allocation and allocate the higher of
the two to those schools.

**K-6. How do the carryover rules described in Section 1127 of the ESEA
affect any Title I funds reserved for choice-related transportation,
SES, or parent outreach and assistance?**

Section 1127 of the ESEA allows LEAs to carry over no more than 15
percent of unused Title I, Part A funds from one fiscal year to the
next. This 15 percent cap applies to an LEA's entire Title I, Part A
allocation, and therefore covers any Title I, Part A funds reserved, but
not spent due to lack of demand, for choice-related transportation, SES,
or parent outreach and assistance. If the combination of unused funds
reserved under Title I, Part A for choice-related transportation, SES,
or parent outreach and assistance, and other unspent Part A funds
exceeds 15 percent of an LEA's total allocation, the excess funds must
be returned to the State for reallocation to other LEAs. The SEA may
grant an LEA a one-year exemption from the carryover limitation once
every three years.

LEAs will likely want to use "first in-first out" accounting rules under
which funds from the prior year are used before funds for the current
year, in order to avoid lapsing any prior-year funds due to the end of
the period of availability.

Provided that an LEA has met all demand from parents and students for
choice-related transportation and SES and has met the criteria in 34
C.F.R. §200.48(d)(2)(i) (described in L-1), the LEA may use any unused
portion of Title I, Part A funds reserved for this purpose for other
allowable activities either during the year in which the reservation was
made or in the following year, subject to the 15-percent carryover
limit. Funds carried over to the following fiscal year are also subject
to the equitable services requirements in Section 1120 of the ESEA and
34 C.F.R. §200.64. Funds carried over from one fiscal year to the next
do not affect the base used for calculating an LEA's 20 percent
obligation in the following year.

An LEA that does not meet its 20 percent obligation and does not meet
the criteria described in 34 C.F.R. §200.48(d)(2)(i) (described in L-1)
in a given school year must spend the unexpended amount in the
subsequent school year on choice-related transportation, SES, or parent
outreach and assistance (in addition to the funds it is required to
spend to meet its 20 percent obligation in the subsequent school year).
LEAs in this circumstance should not run afoul of the carryover
limitation, however, because, in addition to the one-year exemption and
first in-first out accounting rules available to LEAs as noted above,
the requirement to spend unexpended funds in a subsequent school year
focuses on the amount that must be spent on choice-related
transportation and SES, not the specific funds or source of funds that
an LEA uses to satisfy that amount. In other words, what must be
"carried over" is a funding commitment, not any actual funds themselves.
(See L-23.)

**K-7. May an LEA use school improvement funds made available under
Section 1003 (School Improvement) to pay for SES?**

Yes. Section 1003(a) of the ESEA requires States to reserve four percent
of their Title I, Part A allocations to support school improvement
activities under Sections 1116 and 1117. States must generally
distribute at least 95 percent of these funds to LEAs. SES are an
authorized activity under Section 1116, and an LEA may use Section
1003(a) funds to provide those services. An LEA also may use funds
received under Section 1003(g), which authorizes additional funding for
school improvement, to support SES.

**K-8. What Federal dollars other than Title I, Part A funds may be used
to pay for SES?**

An LEA may use its Title V, Part A Local Innovative Education Program
funds to pay for SES but only through September 30, 2009, unless
Congress appropriates additional funds for this program. An LEA also may
use funds transferred to Title I, Part A from other Federal education
programs under Section 6123(b) of the ESEA to pay such costs. Programs
eligible to make such transfers include Title II, Part A Improving
Teacher Quality State Grants; Title II, Part D Educational Technology
State Grants; Title IV, Part A Safe and Drug-Free Schools and
Communities State Grants; and Title V, Part A (through September 30,
2009). In addition, an LEA may use funds it receives under Section
1003(a) and (g) of the ESEA for SES. The LEA may also transfer funds
under Section 6123(b) of the ESEA into Section 1003(a) and (g), if the
LEA receives those funds, to increase the amount of flexible funds
available for SES or other school improvement activities.

SEAs also may use their administrative funds reserved under Title I,
Part A and their State-level funds under Title V, Part A to assist LEAs
in paying the costs of SES *\[Section 1116(e)(7); 34 C.F.R.
§200.48(a)(4)\]*, and may transfer additional non-administrative
State-level funding from other Federal education programs under Section
6123(b) of the ESEA to Title I, Part A or Title V, Part A and use them
for this purpose. Like LEAs, an SEA may only use Title V, Part A funds,
or transfer funds into Title V, Part A through September 30, 2009,
unless Congress appropriates additional funds for this program.

Additionally, under Section 611(e)(2)(C)(xi) of the IDEA, an SEA may
reserve IDEA funds for State-level activities, including SES. SES are
one of eleven permissive activities for which an SEA may use State
set-aside funds under IDEA. There are also several mandatory uses.

The IDEA provision allows for an SEA to allocate the reserved funds to
an LEA with schools identified for improvement based solely on the
disaggregated scores of the subgroup of students with disabilities, and
for the LEA to use those funds to pay for SES for students with
disabilities. An LEA that has received these funds may count them toward
meeting its 20 percent obligation.

**K-9. If an LEA does not incur any choice-related transportation costs,
must it spend its full 20 percent obligation on SES?**

Yes. Some LEAs, in a given year, may not be able to provide public
school choice because they have no eligible public schools to which
students may transfer*.* An LEA in this situation must spend the amount
needed to meet its 20 percent obligation fully on SES, assuming
sufficient demand, except that the LEA may spend up to 1 percent of its
20 percent obligation on parent outreach and assistance (see K-21). If
such an LEA spends less than the amount needed to meet its 20 percent
obligation on SES and parent outreach and assistance and wishes to use
the unexpended amount for other allowable activities, it must meet the
criteria in 34 C.F.R. §200.48(d)(2)(i) (as described in L-1) or spend
the unexpended amount in the subsequent year *\[34 C.F.R. §200.48(d)\]*.

**K-10. May an LEA limit to less than 20 percent of its Title I, Part A
allocation the amount that it will make available for SES and
choice-related transportation?**

In general, an LEA may not limit to less than 20 percent of its Title I,
Part A allocation the amount it will make available for SES and
choice-related transportation. Rather, an LEA must follow the procedures
set forth in K-1; that is, it must spend the equivalent of between 5 and
15 percent of its Title I, Part A allocation on SES and on
choice-related transportation (or as much as 20 percent on SES, if it is
not able to provide public school choice), with the precise amount
dependent on the relative demand for choice-related transportation and
for SES and on whether the LEA chooses to spend up to 1 percent of its
20 percent obligation on parent outreach and assistance. An LEA that
does not spend its full 20 percent obligation must meet the criteria in
34 C.F.R. §200.48(d)(2)(i), as discussed in L-1, or spend the unexpended
amount in the subsequent school year *\[34 C.F.R. §200.48(d)\]*.

Note, however, that an LEA may limit the amount that it will make
available for choice-related transportation and SES to less than its 20
percent obligation if it is able to provide SES or choice-related
transportation to all eligible students using less than that amount. In
that case, the LEA may immediately use for other allowable activities
the difference between its 20 percent obligation and the amount needed
to serve all eligible students. (See L-22.)

In determining whether an LEA can provide all eligible students with
choice-related transportation or SES without spending its full 20
percent obligation, the LEA must consider student eligibility for the
two provisions to be (1) all students enrolled in a Title I school
identified for improvement, corrective action, or restructuring (in the
case of public school choice eligibility), and (2) all students from
low-income families enrolled in a Title I school in year two of
improvement, corrective action, or restructuring (in the case of SES).
An LEA may not define student eligibility to be a prioritized (i.e.,
smaller) group of eligible students.

**K-11. If an LEA provides SES to students enrolled in schools in their
first year of improvement because it cannot provide public school choice
(as discussed in H-13), may it count the cost of those services toward
its 20 percent obligation?**

Yes. An LEA may count the cost of providing SES to students in schools
in the first year of improvement toward meeting its 20 percent
obligation, so long as the services meet all the requirements in Section
1116(e) of the ESEA and so long as the LEA is meeting the full demand
for SES from students enrolled in schools in their second year of
improvement, in corrective action, or in restructuring.

**K-12. If the cost of meeting the demand for SES and choice-related
transportation in an LEA equals or exceeds the LEA's 20 percent
obligation, must an LEA spend its 20 percent obligation on those
activities?**

Yes. If there is sufficient demand in an LEA for SES and public school
choice transportation, the LEA must spend its 20 percent obligation on
those activities, subject to the exception that it may spend up to 1
percent of the 20 percent obligation (0.2 percent of its Title I, Part A
allocation) on parent outreach and assistance.

**K-13. If only one school in an LEA has been identified for school
improvement, corrective action, or restructuring, must the LEA make
available its full 20 percent obligation for choice-related
transportation and SES?**

In general, an LEA must make available for choice-related transportation
and SES its full 20 percent obligation even if the LEA has only one
school in improvement. An LEA that does not spend its full 20 percent
obligation must meet the criteria in 34 C.F.R. §200.48(d)(2)(i), as
discussed in L-1, or spend the unexpended amount in the subsequent
school year *\[34 C.F.R. §200.48(d)\]*.

However, depending on the enrollment in the identified school, the LEA
may be able to provide choice-related transportation and SES to all
eligible students without spending its full 20 percent obligation. In
that case, the LEA may limit the amount that it will make available for
choice-related transportation and SES to the amount needed to serve all
eligible students and may immediately use for other allowable activities
the difference between the 20 percent obligation and the needed amount.
(See K-10 and L-22.)

**K-14. How much must an LEA spend for each student receiving SES?**

An LEA must spend, for each student receiving SES, either an LEA's
per-pupil allocation under Title I, Part A (determined as described in
K-16) or the actual cost of the services, whichever is less *\[Section
1116(e)(6)\]*.

The average per-pupil allocation of Title I funds to LEAs is about
\$1,300, but the amount varies widely across the Nation, ranging in most
LEAs from roughly \$900 to \$2,400. Estimates of the maximum per-pupil
amount for SES in each LEA in the Nation are available at
<http://www.ed.gov/about/overview/budget/titlei/fy08/index.html>.

Note that this cap applies to the cost of instructional services only.
LEAs may incur additional per-pupil costs related to the administration
of SES, transportation of students to a provider, or appropriate
accommodations for students with disabilities, but may not count those
expenses against the per-pupil amount.

**K-15. How must an LEA calculate the per-pupil funding cap on the cost
of SES?**

An LEA must calculate the per-pupil cap on SES costs by dividing its
Title I, Part A allocation by the number of children residing within the
LEA aged 5‑17 who are from families below the poverty level, as
determined by the most recent census estimates from the Department of
Commerce *\[Section 1116(e)(6)(A); 34 C.F.R. §200.48(c)(1)\]*. The
Department of Education uses these poverty estimates to make allocations
to LEAs and provides the estimates to States as part of the allocation
notification process. (For census data, go to
<http://www.census.gov/hhes/www/saipe/district.html>.)

In States that use "alternative poverty data" under Section
1124(a)(2)(B)(iii)(II) of the ESEA for determining allocations to small
LEAs (rather than using the Census counts), these LEAs may use the
alternative count in making the per-pupil calculation for SES.

Note that an LEA's per pupil cap will change annually to reflect changes
in an LEA's Title I per-pupil allocation.

**K-16. May an LEA establish a lower per-pupil cap for SES?**

No. An LEA may not establish a per-pupil cap for SES that is lower than
its Title I, Part A per-pupil allocation, which must be calculated as
described in K-15. However, if the actual costs of services are less
than an LEA's per-pupil cap, it may spend a lesser amount per student.

**K-17. What is meant by "the actual cost" of services in determining
the per-pupil cost of SES?**

The actual cost of services is simply the amount that a provider charges
for services.

**K-18. May an LEA pay a provider an amount that exceeds the per-pupil
limitation on funding for SES?**

Yes, although it is not required to do so. In some LEAs the per-pupil
"tuition" charged by some State-approved providers may exceed the
per-pupil amount the LEA can spend (pursuant to the calculation made in
K-15). In this situation, the LEA may, using funds from Title I, Part A
or other sources, supplement the amount available to a child in order to
allow that child to receive SES from the provider selected by his or her
parents. However, the LEA may not count any amount provided to a child
in excess of the per-pupil cap against the 20 percent obligation. In
other words, if the cost of enrolling a child with a provider is \$1,500
and the LEA's per-pupil cap (calculated as described in K-15) is only
\$1,000, the LEA may make available to the child the full \$1,500 but it
may count only the first \$1,000 toward meeting its 20 percent
obligation.

**K-19. Must an LEA pay for or provide transportation for students to
receive SES?**

No. An LEA may provide transportation for students to receive SES, but
is not required to do so under the law. In addition, the costs of such
transportation may not be used to satisfy the 5 percent minimum
expenditure requirement for SES *\[34 C.F.R. §200.48(a)(2)(iii)(B)\]*,
nor may the costs of transportation be counted toward satisfying an
LEA's 20 percent obligation, as described in K-1.

**K-20. May an LEA count costs incurred in providing outreach and
assistance to parents on public school choice or SES toward the 20
percent obligation?**

Yes. An LEA may, but is not required to, count costs for parent outreach
and assistance regarding public school choice and SES toward its 20
percent obligation, subject to a cap of 1 percent thereof (0.2 percent
of an amount equal to the LEA's Title I, Part A allocation) *\[34 C.F.R.
§200.48(a)(2)(iii)(C)\]*. An LEA may spend more than the 1 percent on
parent outreach activities, but may not count more than the 1 percent
toward meeting its 20 percent obligation.

**K-21**. **What costs for parent outreach and assistance may an LEA
count toward meeting its 20 percent obligation?**

An LEA is in the best position to determine the most effective means of
providing outreach and assistance to parents of eligible students, and
should use the flexibility provided by 34 C.F.R. §200.48(a)(2)(iii)(C)
to make it easier to finance the provision of outreach and assistance to
parents to help them take advantage of public school choice and SES. For
example, an LEA might count toward meeting its 20 percent obligation the
costs of parent notification letters; communication to parents through
the media, Internet, and community partners; displaying information on
the LEA's Web site; and parent fairs held by the LEA.\
\
**K-22.** **May an LEA count toward meeting its 20 percent obligation
administrative costs, other than those for parent outreach and
assistance, incurred in providing SES to eligible students?\
**\
No. For example an LEA may not count toward meeting its 20 percent
obligation the costs of contracting with or arranging for payment to SES
providers or costs associated with matching students to respective
providers. Such administrative costs may be allowable Title I
expenditures but may not be counted toward meeting an LEA's 20 percent
obligation.

**K-23. If an existing after-school program has been approved by the
State as an SES provider, may an LEA count any funds that it is already
paying that provider toward meeting the 20 percent obligation?**

Yes. However, selection of an SES provider is always up to the parent.
An LEA may not merely have an existing after-school program provide SES
without giving parents the opportunity to select another provider and
the services most appropriate for their children.

An LEA in this situation may count, toward meeting its 20 percent
obligation, any funds that it is using to pay a provider for SES
received by children who are eligible to receive those services
(children from low-income families enrolled in eligible schools).
However, it may not count the cost of providing services to other
children or the costs of providing other types of services. Moreover,
the provider will need to keep appropriate records and use appropriate
safeguards to ensure that SES funds are used only for eligible students
and activities.

An existing after-school program that qualifies to be an SES provider
should also be aware of a potential supplanting issue. It does not
violate the Title I supplement-not-supplant requirement for an LEA to
count, toward meeting its 20 percent obligation, State or local funds
used to provide SES to eligible students. However, it could be
supplanting if the LEA were to use Title I, Part A funds to replace
State or local funds it had spent previously to provide services to
eligible students. In addition, an LEA may not exclude eligible students
from the services it is providing with State or local funds merely
because those students are eligible for SES under Section 1116 of the
ESEA.

**L. Requirements for LEAs that do not meet their 20 percent
obligation\***

**\*** A flowchart, located in Appendix C, provides further information
on the requirements and responsibilities for meeting an LEA's 20 percent
obligation.

**L-1. What are the responsibilities of an LEA if it spends less than
its 20 percent obligation on choice-related transportation, SES, and
parent outreach and assistance?\
**\
Unless it meets the criteria described below, an LEA that does not meet
its 20 percent obligation in a given school year must spend the
unexpended amount in the subsequent school year on choice-related
transportation, SES, or parent outreach and assistance (subject to the
limitation described in L-24). The LEA must spend the unexpended amount
in addition to the funds it is required to spend to meet its 20 percent
obligation in the subsequent school year *\[34 C.F.R. §200.48(d)(1)\]*.

To spend less than the amount needed to meet its 20 percent obligation
and to use the unexpended amount for other allowable activities in a
given school year, an LEA must meet, at a minimum, all of the following
criteria *\[34 C.F.R. §200.48(d)(2)(i)\]*:

1.  Partner, to the extent practicable, with outside groups, such as
    faith-based organizations, other community-based organizations, and
    business groups, to help inform eligible students and their families
    of the opportunities to transfer or to receive SES. (See L-4 through
    L-6.)

2.  Ensure that eligible students and their parents have a genuine
    opportunity to sign up to transfer or to obtain SES, including
    by: (a) providing timely, accurate notice to parents (see L-7); (b)
    ensuring that sign-up forms for SES are distributed directly to all
    eligible students and their parents and are made widely available
    and accessible through broad means of dissemination, such as the
    Internet, other media, and communications through public agencies
    serving eligible students and their families (see G-7 and G-8);
    and (c) providing a minimum of two enrollment windows, at separate
    points in the school year, that are of sufficient length to enable
    parents of eligible students to make informed decisions about
    requesting SES and selecting a provider. (See L-8 through L-10.)

3.  Ensure that eligible SES providers are given access to school
    facilities, using a fair, open, and objective process, on the same
    basis and terms as are available to other groups that seek access to
    school facilities. (See L-11 through L-14.)

In addition, an LEA that spends less than the amount needed to meet its
20 percent obligation and does not intend to spend the unexpended amount
in the subsequent school year must maintain records that demonstrate it
has met the criteria above *\[34 C.F.R. §200.48(d)(2)(ii)\]*, and must
notify the SEA that it has met the criteria and intends to spend the
remainder of its 20 percent obligation on other allowable activities
*\[34 C.F.R. §200.48(d)(2)(iii)\]*. The LEA must include in its notice
to the SEA the amount of that remainder *\[34 C.F.R.
§200.48(d)(2)(iii)\]*. An LEA does not need to obtain approval from its
SEA to spend less than its 20 percent obligation.

**L-2. May an SEA require an LEA to meet additional criteria in order
for the LEA to spend less than its 20 percent obligation?**

Yes. An SEA may require an LEA to meet criteria in addition to those in
34 C.F.R. §200.48(d)(2)(i) (described in L-1) in order for the LEA to
spend less than its 20 percent obligation. For example, an SEA could
require that an LEA also have an SES or public school choice
participation rate that is equal to or higher than a specified amount,
or that it receive written confirmation from a specified percentage of
eligible families that they were notified about their SES and public
school choice options. Note, however, that any other criteria required
by an SEA must be in addition to the criteria in 34 C.F.R.
§200.48(d)(2)(i) and may not serve as a substitute for these criteria.

**L-3. May an SEA establish additional requirements or procedures for an
LEA that does not meet its 20 percent obligation?**

Yes. As part of its responsibility to implement Title I in accordance
with the law and regulations, an SEA may establish its own additional
requirements or procedures for ensuring compliance with the criteria in
34 C.F.R. 200.48(d)(2)(i), discussed in L-1, for LEAs that do not meet
their 20 percent obligation. For example, although Federal regulations
do not require that an LEA obtain approval from an SEA if it spends less
than its 20 percent obligation, an SEA could choose to require such
approval from its LEAs.

**L-4. With which outside groups might an LEA partner to help inform
eligible students and their families of the opportunity for SES or
public school choice?**

To meet the criterion in 34 C.F.R. §200.48(d)(2)(i)(A) that an LEA
partner, to the extent practicable, with outside groups, the LEA should
consider a range of business and faith-based and other community groups
in its area with which it may partner. An LEA should consider forming
partnerships with groups that can assist it in reaching and informing
parents about their public school choice and SES options in a timely and
clear manner, and should carefully consider which outside groups could
best assist it in light of the unique circumstances in the LEA. For most
LEAs, there likely exist at least one group willing to form a
partnership to help inform parents about SES and public school choice
options, but it is possible that small and rural LEAs will have few or
no options.

**L-5. Does an LEA need to form a formal partnership in order to meet
the criterion that it partner with outside groups?**

No. The criterion that an LEA partner with outside groups should not be
significantly burdensome or costly for an LEA, and no formal agreement
is needed. Indeed, partnering with an outside group should be a
cost-effective way for an LEA to promote SES, as partner groups, such as
faith-based organizations, community-based organizations, and business
groups already have a presence in the community and thus give an LEA a
way to tap into existing resources with little additional effort or
costs. An LEA could ask a partner to pass out literature on SES, make
announcements about the LEA's upcoming SES events and timelines, or help
the LEA write parent-friendly letters. A partner group could assist an
LEA with parent outreach with respect to either SES or public school
choice, or could assist with communicating to parents on both options.

An LEA should make a good-faith effort to partner with an outside group,
which should include attempts to reach several groups in the community
that have connections to families of eligible students. If an LEA cannot
form a partnership with an outside group, it should maintain records
documenting the reasons why.

**L-6. May an LEA partner with an SES provider to meet the criterion
that it partner with outside groups?**

Yes, an LEA may partner with an SES provider in order to meet the
criterion, as discussed in L-1, that an LEA partner with outside groups
to help inform eligible students and their families of the opportunities
to transfer or receive SES.

As discussed in L-4, the purpose of the criterion that an LEA partner
with outside groups is to provide assistance to the LEA in reaching and
informing parents about their SES and public school choice options in a
timely manner, and an LEA should carefully consider which outside group
could best assist it, in light of the unique circumstances in the LEA,
as it conducts outreach to parents. An LEA should ensure that a provider
serving as a partner with the LEA is able to provide parents with
information in a fair and unbiased manner that does not favor one
provider's program over another.

An LEA has the discretion to reject the offer of a provider that wants
to serve as a partner if the LEA has concerns that the provider, by
virtue of its competitive position, would be unable to be fair and
unbiased or if the LEA does not believe it is practicable to enter into
such a partnership for any other reason.

**L-7. How does an LEA provide timely, accurate notice to parents
regarding SES?**

To meet the criterion in 34 C.F.R. §200.48(d)(2)(i)(B)(*1*) that an LEA
provide timely, accurate notice to parents (see L-1), an LEA must
provide notice regarding SES directly, through such means as regular
mail or email, and through broader means of dissemination such as the
Internet, the media, and public agencies serving the student population
and their families *\[34 C.F.R. §200.36(c)\]*. (See G-7.) In addition,
the notice must be in an understandable and uniform format and, to the
extent practicable, in a language that parents can understand *\[Section
1116(b)(6); 34 C.F.R. §200.36(b)\]*. (See G-3.) The notice must include
all required information, as described in 34 C.F.R. §200.37(b). (See
G-2.) Additionally, as described in G-1, an LEA should notify parents of
their SES options at the beginning of the school year and begin offering
SES in a timely manner thereafter.

**L-8. How can an LEA meet the criterion that it offer at least two SES
enrollment windows of sufficient length and at separate points in the
school year?**

The purpose of the "sufficient length" criterion in 34 C.F.R.
§200.48(d)(2)(i)(B)(*3*) (see L-1) as it relates to SES enrollment
windows is to help ensure that parents of eligible students have a
genuine opportunity to enroll their children in SES. This means that
parents should have a reasonable amount of time to obtain information
about providers serving their area, consider their options, and sign up
for SES. In general, the Department believes that this requires
enrollment windows to be at least two weeks in length. The "sufficient
length" criterion also means that enrollment windows must be
sufficiently convenient for parents, particularly for working parents
and single parents. For example, enrollment periods limited to two hours
after school for two or three days would not be deemed of sufficient
length to give working parents a genuine opportunity to sign up for SES.

Additionally, the LEA must provide at least two enrollment windows at
separate points in the school year. This means, for example, that an LEA
might allow students to enroll in SES during the early fall, coinciding
with the start of school, and hold a second enrollment window in late
fall or early winter, after a grading period has ended.

**L-9. If an LEA provides at least two SES enrollment windows, what
information must the LEA provide to parents during each of those
enrollment windows?**

An LEA is required to notify parents of eligible students, at least
annually, of their opportunity to enroll their child in SES. This
notification must meet all requirements for the SES notice, as discussed
in Section G. An LEA that provides more than one enrollment window
should meet the requirements for the content and format of the SES
notice each time it notifies parents of their opportunity to enroll
their child in an SES program. Additionally, in an LEA's notice to
parents regarding its first enrollment window, the LEA should inform
parents about if and when it will be providing an additional enrollment
window in the future. Doing so will enable parents who do not choose to
enroll their child in SES at the beginning of the school year to enroll
their child at a later date.

**L-10. Does an LEA that provides an "open enrollment" window all year
for SES meet the criterion to provide a minimum of two enrollment
windows at separate points in the school year?**

Yes. If an LEA provides eligible families an opportunity to enroll in
SES through an open enrollment window that lasts throughout the school
year, the LEA is considered to have met the requirement, as discussed in
L-1, that it hold a minimum of two SES enrollment windows, at separate
points in the school year, that are of sufficient length to enable
parents of eligible students to make informed decisions about requesting
SES and selecting an SES provider.

**L-11. How can an LEA meet the criterion to give providers access to
school facilities using a fair, open, and objective process?**

An LEA that spends less than its 20 percent obligation and wishes to use
the unexpended amount for other allowable activities must give SES
providers access to school facilities in the same manner and on the same
basis as it gives access to other outside organizations. The Department
encourages an LEA to develop a facilities policy that is public and
easily understood by providers and parents. An LEA with many eligible
students and schools may need to implement a different policy than one
with fewer affected students and schools. An LEA may wish to consult
with its SEA on any available guidance regarding fair provider access
policies.

**L-12. May an LEA that spends less than its 20 percent obligation and
wishes to use the unexpended amount for other allowable activities
differentiate between an SES provider and a non-SES group in allowing
access to its school facilities?**

No. The criterion in L-1, that an LEA ensure that SES providers are
given access to school facilities, using a fair, open and objective
process, on the same basis and terms as are available to other groups
that seek access to school facilities means that an LEA that allows
non-SES providers to use its facilities for out-of-school purposes must
provide the same opportunity for an SES provider to use school
facilities, at the same cost and for a comparable period of time. An LEA
may operate a first-come, first-served policy with respect to letting
outside groups have access to its school facilities.

**L-13. May an LEA that spends less than its 20 percent obligation and
wishes to use the unexpended amount for other allowable activities
differentiate between a for-profit SES provider and a non-profit SES
provider in allowing access to its school facilities?**

If an LEA's facilities policy, in general, does not differentiate
between for-profit and non-profit entities in granting access to school
facilities, then the LEA may not differentiate between for-profit and
non-profit SES providers. On the other hand, if an LEA's general policy
regarding access to school facilities does distinguish entities by their
profit status, the LEA may apply that policy to SES providers. We
encourage LEAs to give all SES providers access to school facilities on
the same basis and terms.

**L-14. Does the "facilities" criterion in L-1 *mandate* that an LEA
give SES providers access to school facilities?**

As discussed in L-11, an LEA that spends less than its 20 percent
obligation and wishes to use the unexpended amount for other allowable
activities must give SES providers access to school facilities in the
same manner and on the same basis as it gives access to other outside
organizations. As explained in L-12, an LEA that permits non-SES groups
use its school facilities must permit SES providers do so, as well.
However, if an LEA does not allow any groups (SES or non-SES) to use its
school facilities, the LEA is not required to give SES providers access
to school facilities. The "facilities" criterion only requires an LEA to
implement the same policies for SES and non-SES entities; it does not
require an LEA that does not permit outside groups to use its school
facilities to allow SES providers to do so.

**L-15. When should an LEA notify the SEA of its intention to spend a
portion of its 20 percent obligation for other allowable activities?**

An LEA has flexibility in the timing of its notification to the SEA that
it intends to use a portion of its 20 percent obligation for other
allowable activities. However, an LEA must be careful not to
predetermine demand for choice-related transportation and SES before all
parents of eligible students have had a genuine opportunity to sign up
for public school choice or SES. For example, an LEA should not notify
its SEA of its intent to spend a portion of its 20 percent obligation on
other allowable activities before holding the second enrollment window
for SES. Since this second enrollment window is required to be separate
from the first enrollment window, preferably by a grading period or
similar period of time (i.e., 2-3 months), the Department would not
expect LEA notification to its SEA to occur prior to December or
January. An LEA that has an open enrollment all year long should notify
its SEA after several months of open enrollment.

**L-16. What are the responsibilities of an SEA for ensuring that an LEA
spending less than its 20 percent obligation meets the criteria in 34
C.F.R. §200.48(d)(2)(i)?\
**\
An SEA must ensure that an LEA spending less than its 20 percent
obligation complies with the criteria specified in 34 C.F.R.
§200.48(d)(2)(i) (see L-1) through its regular process for monitoring
LEAs *\[34 C.F.R. §200.48(d)(3)(i)\]*. However, the SEA ***must***
review any LEA that:

1.  The SEA determines has spent a significant portion of its 20 percent
    obligation for other activities; and

2.  Has been the subject of multiple complaints, supported by credible
    evidence, regarding implementation of the public school choice or
    SES requirements *\[34 C.F.R. §200.48(d)(3)(ii)(A)\]*.

The SEA must complete its review of any such LEA by the beginning of the
following school year (i.e., the school year following the year in which
the LEA spent a significant portion of its 20 percent obligation for
other activities) *\[34 C.F.R. §200.48(d)(3)(ii)(B)\]*. Additionally, an
SEA may choose to review any LEA that the SEA believes is not
implementing public school choice or SES in accordance with the law or
regulations.

**L-17. For purposes of an SEA's determining when it must review an LEA,
what is a "significant portion" of the 20 percent obligation?**

[]{.mark}

An SEA has discretion to determine what constitutes a "significant
portion" of the 20 percent obligation when considering which LEAs to
review. For example, an SEA could calculate the average portion of the
20 percent obligation that its LEAs spend on choice-related
transportation and SES, and then decide that any LEA spending less than
half of that amount is thereby using "a significant portion" of its 20
percent obligation for other allowable activities. The SEA also could
vary its definition of "significant portion" according to such factors
as the size and urbanicity of its LEAs, since such factors are related
to the availability of public school choice and SES options, or the
number of schools in improvement, which determines need for public
school choice and SES.

[\
]{.mark}**L-18.** **For purposes of an SEA's determining when it must
review an LEA, how does an SEA determine what is a "complaint supported
by credible evidence"?**

[]{.mark}

An SEA must have procedures in place for reviewing complaints regarding
LEA implementation of Title I programs and activities, and should follow
those procedures in determining the credibility of one or more
complaints related to an LEA's compliance with the statutory and
regulatory requirements for public school choice and SES. An SEA has
discretion to establish procedures for reviewing other complaints
regarding public school choice and SES that are not directly about
violations of statutory and regulatory requirements.

**L-19. What actions must be taken by an LEA that the SEA determines has
not met the criteria for spending less than the amount needed to meet
its 20 percent obligation?\
**\
If an SEA determines that an LEA has failed to meet one or more of the
criteria for spending less than the amount needed to meet its 20 percent
obligation, the LEA must:

1.  Spend the unexpended amount in the subsequent school year, in
    addition to its 20 percent obligation for that subsequent school
    year, on choice-related transportation costs, SES, or parent
    outreach and assistance (subject to the limitation described in
    L-24) *\[34 C.F.R. §200.48(d)(4)(i)(A)\]*; or

2.  Meet the criteria for spending less than the amount needed to meet
    its 20 percent obligation in the subsequent year, and obtain
    permission from the SEA before spending less in the subsequent
    school year than the total amount it is required to spend (the
    unexpended amount from the prior school year plus the 20 percent
    obligation for that year) *\[34 C.F.R. §200.48(d)(4)(i)(B)\]*.

An SEA may not grant permission to an LEA to spend less than the total
amount (i.e., the sum of the unexpended amount from the first year and
the amount needed to meet the 20 percent obligation in the subsequent
school year) unless the SEA has confirmed the LEA's compliance with the
criteria in 34 C.F.R. §200.48(d)(2)(i) *\[34 C.F.R.
§200.48(d)(4)(ii)\]*.

**L-20. May an SEA waive one or more of the individual criteria for an
LEA that spends less than the amount needed to meet its 20 percent
obligation?\
**\
No. An SEA does not have authority to waive any of the criteria in 34
C.F.R. §200.48(d)(2)(i).

**L-21. Are there LEAs that spend less than their 20 percent obligation
that are not subject to the criteria in 34 C.F.R. §200.48(d)(2)(i)?\
**

There may be circumstances in which an LEA does not spend its full 20
percent obligation yet is not subject to the criteria in 34 C.F.R.
§200.48(d)(2)(i). Such circumstances may include, but are not limited
to, the following:

1.  The LEA is not able to provide public school choice because it has
    only one school at each grade level ***and*** cannot provide SES
    because it is not served by any providers, including providers that
    employ technology, such as distance learning, to deliver their
    services.

2.  The LEA enrolls sufficient numbers of eligible students to spend all
    funds reserved for choice-related transportation and SES, but has
    funds left over at the end of the year because one or more providers
    did not fulfill their contractual obligations or because enrolled
    students did not begin or complete services. However, if an LEA
    experiences significant student attrition in its SES program early
    in the school year, leading to lower than anticipated expenditures,
    we would expect it to hold a second enrollment period and sign up a
    sufficient number of students to use its full 20 percent obligation.

3.  The LEA is meeting demand by providing choice-related transportation
    or SES to all eligible students. (See L-22.)

**L-22. How do the criteria for spending less than the 20 percent
obligation apply in the case of an LEA that can provide choice-related
transportation or SES to all eligible students without spending the full
20 percent?**

In the case of an LEA that is able to provide choice-related
transportation or SES to all eligible students without spending its full
20 percent obligation, the criteria would apply to the LEA only with
respect to the amount of funds that is needed to serve all eligible
students. The LEA would be permitted to use the difference between the
20 percent obligation and the needed amount immediately for other
allowable activities. For example, if an LEA could provide
choice-related transportation or SES to all eligible students with an
amount equal to 10 percent of its Title I, Part A allocation, it would
be required to reserve only that amount and would be able to use the
other half of its 20 percent obligation immediately for other allowable
activities. To spend less than the amount equal to 10 percent of its
Title I, Part A allocation, however, the LEA would need to meet the
criteria or spend the unexpended amount in the subsequent school year.\
\
Note that an LEA seeking to use a portion of its 20 percent obligation
immediately for other allowable activities must base the amount that it
reserves for choice-related transportation and SES on the assumption
that **all** eligible students will choose to transfer schools or obtain
SES.

**L-23. If an LEA must spend the unexpended amount of its 20 percent
obligation in a subsequent school year, must it use the same source of
funds to meet this requirement?**

No. The requirement to spend the unexpended amount of the 20 percent
obligation in a subsequent school year focuses on the ***amount*** that
must be spent on choice-related transportation and SES, not the specific
funds or source of funds that an LEA uses to satisfy that amount. In
other words, what is actually "carried over" is a funding commitment,
not actual funds. LEAs not meeting the criteria must add the amount of
any unused portion of the 20 percent obligation to the amount that must
be spent on choice-related transportation and SES in the subsequent
year. For example, if an LEA has \$100,000 in unused fiscal year 2009
Title I, Part A funds that were reserved as part of its 20 percent
obligation in the 2009-2010 school year, it does not have to carry over
those specific Title I funds to the next school year. Rather, the LEA
could use that \$100,000 in fiscal year 2009 Title I funds for other
Title I activities in the 2009-2010 school year, so long as it adds the
same \$100,000 ***amount***\--from any allowable Federal, State, or
local source\--to its 20 percent obligation for the 2010-2011 school
year.

**L-24. If an LEA must spend the unexpended amount of its 20 percent
obligation in a subsequent school year, may it count costs for parent
outreach and assistance in the subsequent school year toward meeting its
unexpended obligation?**

An LEA is able to count costs for parent outreach and assistance toward
meeting its unexpended obligation in the subsequent school year, but
**only** if it did not reach the 1 percent cap in the first year (based
on the LEA's Title I, Part A allocation in that year). However, we do
not expect that many LEAs will find themselves in this situation. In
general, if an LEA must spend funds in a subsequent school year because
it failed to meet the criteria in 34 C.F.R. §200.48(d)(2)(i), the LEA
has probably already spent up to the 1 percent cap on parent outreach
and assistance. In this circumstance, the LEA may not count costs for
parent outreach and assistance toward meeting its unexpended obligation
in the subsequent school year (although it may count costs for parent
outreach and assistance toward meeting its 20 percent obligation for the
subsequent school year, subject to the 1 percent cap discussed in K-20);
the LEA must use all of the unexpended funds in the subsequent school
year for SES and choice-related transportation.

For example, if, during the 2009-2010 school year an LEA spent an amount
equal to 15 percent of its Title I, Part A allocation on choice-related
transportation, SES, and parent outreach and assistance and did not meet
all the criteria in 34 C.F.R. §200.48(d)(2)(i), it must spend the
remaining 5 percent of its 20 percent obligation from the 2009-2010
school year on choice-related transportation or SES during the 2010-2011
school year, in addition to its 20 percent obligation for the 2010-2011
school year; it may not spend its unexpended funds in the subsequent
school year on parent outreach and assistance. However, it may use 1
percent of its 20 percent obligation for the 2010-2011 school year on
parent outreach and assistance during the 2010-11 school year.

**L-25. Are unexpended funds that an LEA must spend in a subsequent
school year subject to the equitable services provisions for private
school students?**

No. Funds that an LEA must spend in the subsequent school year are not
subject to the equitable services requirements for private school
students set forth in Section 1120 of the ESEA. That is because
equitable services for private school students generally apply to Title
I funds spent for instruction for elementary and secondary school
students, professional development, and parent involvement. They do not
apply, however, to all uses of Title I funds, and they do not apply to
Title I funds reserved for choice-related transportation and SES because
private school students are not subject to school improvement and
private school students do not receive SES. However, any unspent portion
of an LEA's 20 percent obligation that is used for other allowable
purposes may be subject to the equitable services provisions of the
ESEA.

**[Appendix A]{.underline}:**

**Definitions**

**20 Percent Obligation**: The amount equal to 20 percent of an LEA's
Title I, Part A allocation that an LEA must spend, subject to demand, on
choice-related transportation, SES, or a combination of the two. If the
cost of satisfying all requests for SES exceeds 5 percent of an LEA's
Title I, Part A allocation, the LEA may not spend less than an amount
equal to 5 percent on those services. Similarly, if the demand from
parents of eligible students for transportation needed for public school
choice exceeds 5 percent of the allocation, the LEA must spend the
equivalent of at least 5 percent on choice-related transportation. An
LEA has flexibility in allocating the remaining 10 percent. In addition,
an LEA may, but is not required to, spend up to 1 percent of its 20
percent obligation (0.2 percent of its Title I, Part A allocation) on
parent outreach and assistance related to public school choice and SES
*\[Section 1116(b)(10); 34 C.F.R. §200.48(a)(2)\]*.

**Adequate Yearly Progress:** Adequate yearly progress (AYP) is the
measure of the extent to which students in a school demonstrate
proficiency in at least reading/language arts and mathematics. It also
measures the progress of schools in meeting other academic indicators,
such as high school graduation or school attendance. The same measure
also applies to LEAs. Each State has developed its own definition of
AYP; these definitions have been approved by the Department and are
available in the State's accountability workbook on the Department's Web
site (<http://www.ed.gov/admins/lead/account/stateplans03/index.html>).
State definitions must reflect the objective of all students
demonstrating proficiency by the end of the school year 2013-2014
*\[Section 1111(b)(2)\].*

**Corrective Action:** A school identified for corrective action is a
Title I school that has not made AYP for four years. In order to exit
corrective action status, the school must make AYP for two consecutive
years. *\[Section 1116(b)(7)\]*.

**Eligible Student**: Students eligible for SES are those students from
low-income families who attend Title I schools that are in their second
year of school improvement, in corrective action, or in restructuring.
Eligibility is thus determined by whether a student is from a low-income
family and the improvement status of the school the student attends
*\[Section 1116(e)(12)(A)\]*. Note that this differs from the
eligibility criteria for public school choice, which is made available
to *all* students in Title I schools in need of improvement, corrective
action, or restructuring.

**Provider**: A provider of SES may be any public or private (non-profit
or for-profit) entity that meets the State's criteria for approval.
Potential providers include individuals or groups of individuals, public
schools (including charter schools), private schools, LEAs, educational
service agencies, institutions of higher education, faith-based
organizations and other community-based organizations, and business
groups. A public school or an LEA that is in need of improvement may not
be a provider. An approved provider (1) has a demonstrated record of
effectiveness in increasing the academic achievement of students in
subjects relevant to meeting the State's academic content and student
academic achievement standards; (2) is capable of providing
instructional services that are (a) of high quality, research-based, and
designed to increase student academic achievement, (b) consistent with
the instructional program of the LEA, (c) aligned with State academic
content and student academic achievement standards, and (d) secular,
neutral, and nonideological; (3) is financially sound; and (4) provides
SES consistent with all applicable Federal, State, and local health,
safety, and civil rights laws *\[Section 1116(e)(12)(B); Section
1116(e)(5); 34 C.F.R. §200.47(b)\]*.

**Public School Choice:** Students who attend a Title I school in need
of improvement, in corrective action, or in restructuring are eligible
to transfer to another public school in the LEA, including a public
charter school, that is not in need of improvement, corrective action,
or restructuring. LEAs are required to make at least two transfer
options available to students, if at least two options exist, and are
responsible for paying all or a portion of transportation necessary for
students to attend their new school; if not enough funds are available
to satisfy all requests for transportation, LEAs must give priority to
the lowest-achieving low-income students who request transportation
*\[Section 1116(b)(1)(E)\]*.

**Restructuring:** A school identified for restructuring is a Title I
school that has not made AYP for five or more years *\[Section
1116(b)(8)\]*. The first year of restructuring may be used for planning;
the plan for the restructured school must be implemented no later than
the second year. In order to exit restructuring, the school must make
AYP for two consecutive years.

**School Improvement:** A school is in its first year of school
improvement when it has not made AYP for two consecutive years. A school
is identified for year two of school improvement if it does not make AYP
for a second year after initially being identified as in need of
improvement. In order to exit school improvement, the school must make
AYP for two consecutive years *\[Section 1116(b)(1)(A)\]*.

**Schoolwide Program:** A schoolwide program is a Title I program
operated in a school that serves an eligible school attendance area in
which not less than 40 percent of the children are from low-income
families, or that has a school enrollment of which not less than 40
percent of the children are from such families, and that uses its Title
I funds to upgrade the educational program of the entire school, rather
than to provide services only to students identified as most at risk of
failing to meet State standards *\[Section 1114\]*.

**Supplemental Educational Services:** SES are additional academic
instruction designed to increase the academic achievement of students
from low-income families attending Title I schools in their second year
of school improvement, in corrective action, or in restructuring. These
services may include academic assistance such as tutoring, remediation
and other educational interventions, provided that such approaches are
consistent with the content and instruction used by the LEA and are
aligned with the State's academic content and student academic
achievement standards. SES are in addition to instruction provided
during the regular school day. SES must be high quality, research-based,
and specifically designed to increase the academic achievement of
eligible students *\[Section 1116(e)(12)(C); 34 C.F.R.
§200.47(b)(2)(ii)(C)\]*.

**Targeted Assistance Program:** A targeted assistance program is a
Title I program in which a school uses its Title I funds to provide
services only to the children who have been identified as failing or
most at risk of failing to meet the State's challenging academic content
and student academic achievement standards *\[Section 1115\]*.

**Appendix B**: Sample Parent Notification Letter on Supplemental
Educational Services

The purpose of this sample notice to parents is to provide LEAs and SEAs
with an example of a parent notification letter that includes all
required elements and is understandable to parents. The elements that
are required in an LEA's notice to parents are detailed in G-2 of the
guidance.

\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*

**Free Tutoring for Your Child!**

Dear Parent/Guardian,

Help your child succeed in school -- sign up for free tutoring! This is
a great opportunity to help your child in school without any cost to
you. As a result of the federal *No Child Left Behind Act*, your child
can receive academic tutoring to help him or her do better in school.

You can choose a free tutoring program that best meets your child's
needs from the list of approved tutoring programs in your area. These
programs, which have been approved by the state department of education,
will provide your child with tutoring that is coordinated with what is
being taught in school and may help improve your child's academic
skills. Research from the federal government has shown that students who
participated in this free tutoring program made significant gains in
student achievement, and those students who participated in multiple
years did even better.

The list of tutoring programs gives you a description of each program,
the qualifications of the tutors, and information about each program's
effectiveness. It also indicates the programs that serve students with
disabilities or limited English proficiency.

When deciding which tutoring program is best for your child, you may
want to ask these questions:

-   When and where will the tutoring take place (at school, home, a
    community center)?

-   How often and for how many hours in total will your child be
    tutored?

-   What programs, by grade levels and subject areas, are available for
    your child?

-   What type of instruction will the tutor use (small group,
    one-on-one, or the computer)?

-   What are the tutors' qualifications?

-   Can the tutor help if your child has a disability or is learning
    English?

-   Is transportation available to and from the location where the
    tutoring will take place?

Please call \[name and number\] if you have any questions about this
tutoring program. You also may join us and talk to the tutors on \[dates
and times of parent fairs\] to help you decide which program is best for
your child. If you would like to select a tutor now, you can fill out
the enclosed provider selection form and mail it back to \[name and
address\] in the stamped envelope we provide. Applications are due by
\[date\]. After you submit your application, you will receive a letter
from \[school district\] by \[date\] telling you when the free tutoring
will start.

Finally, if you do not wish to sign up for these services, you may also
choose to transfer your child to another school in the district. The
enclosed Public School Choice letter gives more information about public
school choice in our district.

Thank you.

\[District official\]

Enclosures: Approved Provider List

Provider Selection Form

Public School Choice Notification Letter

School Improvement Letter

**Appendix C:**

**Flowchart: Requirements and Responsibilities for Meeting the 20
Percent Obligation**

\*An LEA is able to count costs for parent outreach and assistance
toward meeting its unexpended obligation in the subsequent school year,
but **only** if it id not reach the 1 percent cap in the first year
(based on the LEA's Title I, Part A allocation that year). (See L-24.)

\*\*An SEA determines whether an LEA has met the criteria through its
regular monitoring process, except that an SEA must review for
compliance any LEA that has spent a significant portion of its 20
percent obligation on other allowable activities and has been the
subject of multiple credible complaints, and must complete any such
review by the start of the next school year.