June 19, 2019

Summary Response to Comments on Title I, Part A Supplement not Supplant 

Non-Regulatory Informational Document

On January 25, 2019, the U.S. Department of Education (Department) published for public 

comment a draft informational document on the Title I, Part A supplement not supplant 

requirement in section 1118(b) of the Elementary and Secondary Education Act of 1965, as 

amended by the Every Student Succeeds Act (ESEA). More than 40 respondents provided 

comments for the Department to consider in finalizing the informational document. A summary 

of the comments and a description of changes that the Department made to the draft 

informational document follow. The full informational document can be found at: 

https://www2.ed.gov/policy/elsec/leg/essa/index.html. 

Many commenters wrote in support of the draft informational document. Commenters 

encouraged the Department to finalize the document quickly without making any changes.

The majority of commenters provided suggestions for improving the document. They primarily 

did so by identifying topics in the document that they would like expanded or clarified or topics 

that they would like to see the Department address in the document. In response, the Department 

added information on the following topics:

 Meaning of the term “Title I neutral”;

 Connection between ESEA section 1118(b) and ESEA section 1003(e)(2), the supplement 

not supplant requirements of Parts C and D of Title I, the comparability provision in ESEA 

section 1118(c), and allowable uses of Title I, Part A funds;

 How ESEA section 1118(b) applies to Title I, Part A funds that an local educational agency 

(LEA) reserves;

 Exclusion provision in ESEA section 1118(d); 

 Documenting compliance by an LEA;

 Grade span exceptions; and

 Confirmation that ESEA section 1118(b)(1) still applies to an LEA that does not have to 

comply with ESEA section 1118(b)(2).

Several commenters also asked the Department to include information on how an State 

educational agency (SEA) may enforce the supplement not supplant requirements. Since there is 

no provision regarding enforcement in ESEA section 1118(b), the Department is not adding 

information on this topic in this informational document. Rather, an SEA would follow the

enforcement provisions under the General Education Provisions Act and 2 C.F.R. Part 200. 

Some commenters expressed opposition to the draft informational document, either in part or as 

a whole. Objections included a contention that the ESEA requires the Department to conduct

UNITED STATES DEPARTMENT OF EDUCATION

OFFICE OF ELEMENTARY AND SECONDARY EDUCATION
negotiated rule making on the ESEA section 1118(b) requirement rather than issue nonregulatory guidance, concern that the Department did not indicate that a local educational agency 

(LEA) must allocate to a Title I school at least as much State and local funds as the average of its 

non-Title I schools, that non-regulatory guidance will prove insufficient for the Department to 

enforce ESEA section 1118(b), and that the Department did not encourage LEAs to publish their 

methodologies. 

The Department notes that the ESEA does not require it to engage in negotiated rulemaking 

regarding ESEA section 1118(b); rather, ESEA section 1601 requires the Department, if it were 

to regulate on ESEA section 1118(b), to engage in negotiated rulemaking. However, the 

Department is not regulating on supplement not supplant. Similarly, the Department does not 

agree with the view that it lacks sufficient authority, outside of a regulation, to enforce 

supplement not supplant, as no such indication is given in the statute. The Department also 

disagrees with the view that ESEA section 1118(b) requires equal expenditures between Title I 

and non-Title I schools (a view which, incidentally, would also run afoul of the prohibition in 

ESEA section 1605 regarding mandates for equalized spending.) Accordingly, the Department 

did not make any changes to the informational document concerning the preceding issues. 

The Department has modified question 17 to encourage LEAs to publish their methodology in 

recognition of the minimal burden of such an effort, the value of transparency and the public 

interest in such information. 

The Department appreciates the public’s helpful and insightful commentary on the draft 

informational document and would like to convey its thanks to all those that commented.