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May 1, 2006

**Questions and Answers on the Participation of Private Schools**

**In Providing Supplemental Educational Services (SES)**

**Under *No Child Left Behind***

Title I of the Elementary and Secondary Education Act (ESEA), as amended
by the *No Child Left Behind Act* (NCLB), provides for "supplemental
educational services" for disadvantaged students. Supplemental
educational services (SES) are tutoring and other academic enrichment
provided outside of the regular school day to eligible public school
students to help improve achievement in reading, language arts, and
math. To be eligible, students must be from low-income families and
attend Title I public schools that State educational agencies (SEAs)
have determined to be in their second year of improvement, in corrective
action, or in restructuring. Parents of eligible students may obtain
these services for their children free of charge from an approved SES
provider of their choice. Under NCLB, private schools are eligible to
become approved providers and to receive payment for providing SES to
eligible public school students.

The following Questions and Answers provide SEAs, local educational
agencies (LEAs), and the private school community with guidance on
private school participation in providing SES. By amplifying certain
issues and by providing information on new topics, these Questions and
Answers are intended to supplement the Department's current SES
non-regulatory guidance and the information on SES contained in the
brochure, *Opportunities for Private Schools to Provide Extra Academic
Help to Disadvantaged Students*. The current SES guidance is available
at <http://www.ed.gov/policy/elsec/guid/suppsvcsguid.doc>. The brochure
is available at
[http://www.ed.gov/admins/comm/suppsvcs/privschools/opportunities.html](http://www.ed.gov/admins/comm/suppsvcs/privschools/opportunities.pdf).

Please note that while this guidance is written with private schools in
mind, its applicability is not limited to the private school community.
Faith-based and community organizations and other private and public
entities interested in SES may also find this guidance helpful.

**[Questions and Answers]{.underline}**

1.  **What Federal, State, or local statutes or regulations apply to SES
    providers?  Do these statutes or regulations apply to the SES
    program only or also to the private school sponsoring the
    program?**\
    \
    In providing its services, an SES provider must meet all
    *applicable* Federal, State, and local health, safety, and civil
    rights laws, as is required by the statute *\[Section
    1116(e)(5)(C)\]*. For a discussion of applicable Federal civil
    rights laws, see Question 10 below. A private school that is a
    prospective SES provider should inquire with the State as to which
    State and/or local laws, if any, are applicable to the school by
    virtue of its participation in SES. In addition, an SES provider
    must meet the requirements applicable to all providers in Section
    1116(e) of Title I and 34 CFR 200.45-200.47.

2.  **To minimize the impact on the school, should a private school
    establish a separate 501(c)(3) corporation with an independent board
    of directors for the purpose of providing SES?**

> An SES provider, merely by being a provider, is not a recipient of
> Federal financial assistance, and, as a result, certain Federal
> requirements that apply to recipients of Federal financial assistance
> are not directly applicable to a provider unless the provider
> otherwise receives Federal financial assistance for other purposes.
> (See Question 10 below for more information on this topic.)
> Nonetheless, a private school may wish to establish a separate
> 501(c)(3) (nonprofit) corporation with an independent board of
> directors, or a for-profit corporation, for the purpose of providing
> SES, although it is not required to do so. While it will take some
> time and cost some money, taking this step may make it easier for a
> private school to track the funds it receives. This step may also help
> the school track and document which students were served by its SES
> program and when, and thereby allow the school to submit accurate and
> timely vouchers to an LEA for its services. In the event that an audit
> is conducted, it will also be easier for the auditors to examine the
> private school's receipt of funds for providing SES without intruding
> on the school's internal affairs.**\
> \
> **Short of establishing a separate 501(c)(3) corporation, a private
> school may wish to set up a separate financial account for the purpose
> of providing SES, although, again, it is not required to do so.\
> \
> A private school may also partner with another school or organization,
> non-profit or for-profit, that is an SES provider.\
> \
> For more information on this topic, see [*Guidance to Faith-Based and
> Community Organizations on Partnering with the Federal
> Government*](http://www.whitehouse.gov/government/fbci/guidance-document-200510.pdf),
> p. 13, available at
> <http://www.whitehouse.gov/government/fbci/guidance-document-200510.pdf>.

3.  **May a private school provide tutoring services to its own students
    alongside the public school students that it serves in its SES
    program?\
    \
    **A private school may provide tutoring services to its own students
    alongside the public school students that it serves in its SES
    program. Of course, the school must provide services to public
    school students consistent with the SES program design approved by
    the SEA in terms of educational program, pupil/tutor ratio,
    intensity of services, etc., regardless of whether it provides
    tutoring services to its own students alongside the public school
    students it serves in its SES program. If the SES program design
    approved by the SEA provides, for example, for an intensity of
    services of two one-hour sessions per week and a pupil/tutor ratio
    of 5/1, the school must meet those terms regardless of whether it
    provides tutoring services to its own students alongside the public
    school students.**\
    \
    **An SES provider must ensure that the instruction and content it
    provides are secular, neutral, and nonideological. If the tutoring
    services that a private school provides to its own students involve
    inherently religious activities such as religious instruction or
    proselytization, they must be offered separately in time or location
    from the SES program for public school students.

4.  **How may a private school use the funds it receives 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. Any funds that a private school
    receives for providing SES may be used at the discretion of the
    school for any purpose, including for supporting non-SES students. 

5.  **How detailed are the local and State academic standards that SES
    providers must meet?  May private school teachers in an SES program
    teach the curriculum they use during the regular school day or must
    they teach with a new set of standards?\
    \
    **In approving a provider, each SEA must ensure that the services
    offered by the provider are aligned with the State's academic
    content and achievement standards, as well as consistent with the
    instructional program of the LEA, as is required by the statute
    *\[Section 1116(e)(5)(B)\]*. While a provider must meet these
    criteria, its program need not be identical to the instructional
    program of the LEA. In fact, 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 the State's standards. A private school thus may use
    the instructional program it uses during the normal school day or
    another curriculum of its choice in its SES program, provided that
    the curriculum is consistent with the curriculum used by the LEA and
    is aligned with the State's academic content and achievement
    standards.**\
    \
    **State academic standards may vary, as may the extent to which an
    SEA's provider application form is tied to these standards. In its
    application to the SEA, a private school should describe the
    connections between its SES program and the State's academic
    standards and, where possible, should cite the specific standards
    the program addresses.\
    \
    For more information on this topic, see [*Supplemental Educational
    Services Non-Regulatory
    Guidance*](http://www.ed.gov/policy/elsec/guid/suppsvcsguid.pdf),
    C-17, 18; and [*Toolkit for Faith-Based and Community Organizations
    to Provide Extra Academic Help (Supplemental Educational
    Services)*](http://www.ed.gov/admins/comm/suppsvcs/toolkit.pdf), p.
    7-8, available at
    <http://www.ed.gov/admins/comm/suppsvcs/toolkit.pdf>.

6.  **What are the assessment requirements for SES students?  What
    assessment responsibilities does a provider have?**

> An SES provider is responsible for meeting the assessment requirements
> outlined in its contract with an LEA, including:

a.  Enabling a student to attain his or her specific achievement goals
    (as established by the LEA, in consultation with the student's
    parents and the provider) *\[Section 1116(e)(3)(A)\]*; and

b.  Measuring the student's progress, and regularly informing the
    student's parents and teachers of that progress *\[Section
    1116(e)(3)(A) and (B)\]*.

> To meet the statutory requirement to measure progress, an SES provider
> may use the assessment(s) of its choice, unless otherwise required by
> the SEA as part of its provider approval process or by the LEA in
> consultation with the provider. In the event the SEA or LEA has no
> specific assessment requirements, the best practice would be to
> specify, in the contract between the LEA and the provider, the
> assessment(s) that will be used.\
> \
> For more information on this topic, see [*Supplemental Educational
> Services Non-Regulatory
> Guidance*](http://www.ed.gov/policy/elsec/guid/suppsvcsguid.pdf), D-3.

7.  **Is an SES provider reimbursed for the cost of services in
    accordance with the number of children registered or the number of
    children in attendance at the SES program?\
    \
    **An LEA has discretion as to which method of reimbursement it uses.
    In its contract with an SES provider, an LEA may include
    administrative provisions addressing such issues as whether payments
    will be based on student enrollment or student attendance.**\
    \
    **For more information on this topic, see [*Supplemental Educational
    Services Non-Regulatory
    Guidance*](http://www.ed.gov/policy/elsec/guid/suppsvcsguid.pdf),
    G-4.**\
    **

8.  **May private school space be rented to a third-party provider of
    SES?\
    \
    **Yes. Renting space to an approved SES provider is another option
    for a private school interested in becoming involved in SES. This
    option may be beneficial insofar as it may provide an opportunity
    for teachers in the private school to be employed by the outside
    provider that is renting space in their school. This option may also
    be beneficial insofar as it may provide an opportunity for students
    in the private school also to receive tutoring services from the
    provider, although the provider could not charge these tutoring
    services as SES expenses.

9.  **How is the budget for an SES program developed?  What amount may
    be allocated for administration, what salary must an SES teacher be
    paid, what percentage of funds may be used for transportation,
    etc.?\
    \
    **While an SEA is not prohibited from including specific budgetary
    or accounting requirements in its SES provider application form, a
    provider normally has discretion in developing an SES program
    budget. Private schools interested in becoming SES providers should
    give advance consideration to their financial capacities for
    providing SES.**\
    \
    **Guidance on developing and implementing an SES budget may be found
    in [*The Providers' Toolkit for Supplemental Educational
    Services*](http://www.tutorsforkids.org/ToolkitDownload.asp),
    developed by the Supplemental Educational Services Quality Center
    (SESQC) and available for download at
    <http://www.tutorsforkids.org/ToolkitDownload.asp>. SESQC was
    established through a grant to the American Institutes for Research
    from the Office of Innovation and Improvement of the U.S. Department
    of Education.

10. **Question C-3 of the Department\'s non-regulatory guidance on SES
    contains the following statement: \"\[a\] supplemental educational
    service provider, merely by being a provider, is not a recipient of
    Federal financial assistance.\"  If a private school receives
    Federal funds for providing SES, why is that school not considered
    to be a recipient of Federal financial assistance? If a private
    school that receives Federal funds for providing SES is not a
    recipient, is that school nonetheless subject, directly or
    indirectly, to the requirements of the regulations implementing
    Title VI, Title IX, Section 504, and the Age Discrimination Act of
    1975?\
    \
    **As noted above, 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).\
    \
    Also as noted above, an SES provider, merely by being a provider, is
    not a recipient of Federal financial assistance. The regulations
    that define "Federal financial assistance" do not contemplate that a
    school or other organization that receives a contract from an LEA
    procuring its services as a provider of SES is thereby a recipient
    of Federal financial assistance. For example, the regulations
    implementing Section 504 and the Age Discrimination Act define
    "Federal financial assistance" to exclude recipients of procurement
    contracts from the definition. 34 CFR 104.3(h); 34 CFR 110.3. See
    also 34 CFR 100.13(f); 34 CFR 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. The LEA, on the other
    hand, is responsible for any discrimination that occurs in obtaining
    services through a procurement contract. The civil rights
    regulations bar a recipient of Federal financial assistance (such as
    an LEA) from discriminating directly or through contractual or other
    arrangements. See, e.g., 34 CFR 104.4(b)(1). Therefore,
    discrimination in the provision of SES by a provider could lead to
    termination of the contract for services by the LEA. However, the
    provider would have no direct nondiscrimination responsibilities
    under the civil rights statutes mentioned above, unless it otherwise
    receives Federal financial assistance for other purposes.\
    \
    The provisions of two Federal civil rights laws, however, may apply
    to an SES provider despite the fact that it 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]{.underline}, that provide SES. Under Title III
    of the ADA, private providers, including private schools, that
    operate places of public accommodation, [except for religious
    entities including religious private schools]{.underline}, 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.\
    \
    In addition, any entity that employs 15 or more employees, whether
    or not it is an SES provider, is subject to both 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, and Title I of the ADA, which prohibits discrimination in
    employment on the basis of disability, except that Title VII does
    not apply to the employment of individuals of a particular religion
    by a religious organization and Title I of the ADA also contains
    such a provision allowing a religious organization to limit
    employment to persons of a particular religion.