NON-REGULATORY GUIDANCE: FISCAL CHANGES

AND EQUITABLE SERVICES REQUIREMENTS UNDER

THE ELEMENTARY AND SECONDARY EDUCATION

ACT OF 1965 (ESEA), AS AMENDED BY THE EVERY

STUDENT SUCCEEDS ACT (ESSA)

November 21, 2016

Under the Congressional Review Act, Congress has passed, and the President has signed, a resolution of 

disapproval of the accountability and State plans final regulations that were published on November 29, 

2016 (81 FR 86076). This guidance document is unaffected by that resolution and remains applicable. 
Table of Contents

INTRODUCTION ............................................................................................... 1

I. TITLE I WITHIN-STATE ALLOCATIONS ....................................... 2

A. OVERVIEW.............................................................................................. 2

B. STEPS TO ADJUST ED-DETERMINED TITLE I LEA ALLOCATIONS

.................................................................................................................. 2

C. FREQUENTLY ASKED QUESTIONS ...................................................10

II. TITLE I WITHIN-DISTRICT ALLOCATIONS................................11

D. OVERVIEW.............................................................................................11

E. CHANGES TO TITLE I WITHIN-DISTRICT ALLOCATION 

REQUIREMENTS...................................................................................11

F. FREQUENTLY ASKED QUESTIONS ...................................................12

III. TITLE II, PART A ALLOCATIONS...................................................13

G. OVERVIEW.............................................................................................13

H. FEDERAL AWARDS TO THE SEA.......................................................13

I. SEA AWARDS TO LEAS .......................................................................17

IV. MAINTENANCE OF EFFORT REQUIREMENTS...........................19

J. OVERVIEW.............................................................................................19

K. CHANGES TO MAINTENANCE OF EFFORT REQUIREMENTS.......19

L. FREQUENTLY ASKED QUESTIONS ...................................................21

V. EQUITABLE SERVICES.....................................................................23

M. OVERVIEW.............................................................................................23

N. COMMON EQUITABLE SERVICES REQUIREMENTS UNDER 

TITLES I AND VIII ................................................................................23

O. EQUITABLE SERVICES UNDER TITLE I............................................29
P. EQUITABLE SERVICES UNDER TITLE VIII ......................................33

VI. TRANSFERABILITY ...........................................................................39

R. OVERVIEW.............................................................................................39

S. TRANSFERS BY SEAS ..........................................................................39

T. TRANSFERS BY LEAS ..........................................................................40

U. FREQUENTLY ASKED QUESTIONS ...................................................41
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ESSA – IMPORTANT FISCAL CHA IMPORTANT FISCAL CHA ORTANT FISCAL CHANGES U.S. DEPARTMENT OF E U.S. DEPARTMENT OF E U.S. DEPARTMENT OF E DUCATION DUCATION DUCATION

INTRODUCTION

On December 10, 2015, President Obama signed into law the Every Student Succeeds Act 

(ESSA), which reauthorized the Elementary and Secondary Education Act of 1965 (ESEA). The 

ESSA makes a number of changes to certain fiscal requirements that existed in the ESEA, as 

amended by the No Child Left Behind Act of 2001 (NCLB), including changes to: Title I, Part A

(hereafter Title I) within-State allocations; Title I within-district allocations; Title II, Part A 

allocations; maintenance of effort requirements; and transferability requirements. The ESSA 

also makes a number of changes to the equitable services requirements for private school 

students in Title I and Title VIII of the ESEA. This guidance document discusses these specific 

changes and is designed to support State educational agencies (SEAs), local educational agencies 

(LEAs), and schools in implementing the ESEA, as amended by the ESSA.

1

 New or revised 

requirements are presented in a shaded box.

The changes made by the ESSA to the State formula-grant programs discussed in this guidance 

take effect beginning in the 2017−2018 school year. The Department is issuing guidance with 

respect to these specific changes now to provide SEAs, LEAs, and schools with timely 

information to support SEAs, LEAs, and schools in meeting their obligations under the ESEA for 

the 2017−2018 school year.

The U.S. Department of Education (Department) has determined that this guidance is significant 

guidance under the Office of Management and Budget’s Final Bulletin for Agency Good 

Guidance Practices, 72 Fed. Reg. 3432 (Jan. 25, 2007). See 

www.whitehouse.gov/sites/default/files/omb/memoranda/fy2007/m07-07.pdf. Significant 

guidance is non-binding and does not create or impose new legal requirements. 

If you are interested in commenting on this guidance, please email us your comments at 

OESE.guidance@ed.gov or write to us at the following address: Office of Elementary and 

Secondary Education, 400 Maryland Avenue, SW, Washington, DC 20202. For further 

information about the Department’s guidance processes, please visit 

www2.ed.gov/policy/gen/guid/significant-guidance.html.

 1 Unless otherwise noted, all references to the ESEA in this document refer to the ESEA, as amended by 

the ESSA.
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ESSA – IMPORTANT FISCAL CHA IMPORTANT FISCAL CHA ORTANT FISCAL CHANGES U.S. DEPARTMENT OF E U.S. DEPARTMENT OF E U.S. DEPARTMENT OF E DUCATION DUCATION DUCATION

I. TITLE I WITHIN-STATE ALLOCATIONS

A. OVERVIEW

The ESSA made several changes to the ESEA regarding how an SEA adjusts the Departmentdetermined Title I LEA allocations to account for differences between the Department’s list of 

LEAs and the universe of LEAs within a State and to make State-level reservations. The ESEA 

now includes specific language requiring an SEA to calculate a hold-harmless amount for each 

formula that reflects the increased enrollment for a newly opened or significantly expanded 

charter school LEA, and contains new and revised State-level reservations that affect the final 

Title I LEA allocations calculated by an SEA. These changes take effect beginning with fiscal 

year (FY) 2017 Title I funds that the Department expects to award on July 1, 2017, for use 

primarily in the 2017–2018 school year.

The following describes, in chronological order, the steps for an SEA to follow to adjust the 

Department-determined Title I LEA allocations in a manner that is consistent with the ESEA. 

New requirements are presented in a shaded box. In general, for requirements that existed under 

the ESEA, as amended by NCLB, and continue under the ESEA, as amended by the ESSA, a 

link to previously-issued guidance or regulations is provided.

B. STEPS TO ADJUST DEPARTMENT-DETERMINED TITLE I LEA 

ALLOCATIONS

Step 1: Adjust formula counts2

If the LEAs in a State differ from the Department’s list of LEAs (e.g., due to the existence of 

charter school LEAs), an SEA must estimate the number of formula children and determine 

eligibility for each LEA not on the Department’s list by following the procedures on pages 4-13 

in the Department’s 2003 within-State allocation guidance [available at: 

http://www.ed.gov/programs/titleiparta/seaguidanceforadjustingallocations.doc]. To carry out 

this process for a newly opened or significantly expanded charter school LEA, including 

projecting the formula count and enrollment, see Questions 48-52 in the Department’s 2000 

charter school allocation guidance [available at: 

http://www2.ed.gov/policy/elsec/guid/cschools/cguidedec2000.pdf ].

If a State’s list of LEAs matches the Department’s list of LEAs, the SEA begins with Step 3 of 

this guidance because Steps 1 and 2 only apply to States whose universe of LEAs includes one or 

more LEAs that are not on the Department’s list. (In a situation in which the State list of LEAs 

and the Department’s list of LEAs are identical, there are not any LEAs in addition to those on 

the Department’s list for which an SEA would need to derive a formula count or apply the holdharmless requirements, which are the activities covered in Steps 1 and 2.)

 2 If an SEA is unable to track children counted under the Title I formulas from a sending LEA to a receiving LEA, 

the SEA follows the special procedures on pages 19-24 in ED’s 2003 within-State allocation guidance [available at: 

http://www.ed.gov/programs/titleiparta/seaguidanceforadjustingallocations.doc] to implement Step 1 and Step 2a.
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Step 2a: Adjust initial allocations based on adjusted formula counts

An SEA must calculate Basic Grants, Concentration Grants, Targeted Grants, and Education 

Finance Incentive Grants for each eligible LEA that is not on the Department’s list by using the 

adjusted formula count from Step 1 and adjusting the Department-determined allocations of 

LEAs on the Department’s list. To do so, the SEA follows the procedures on pages 14-18 in the 

Department’s 2003 within-State allocation guidance [available at: 

http://www.ed.gov/programs/titleiparta/seaguidanceforadjustingallocations.doc].

Step 2b: Apply the variable hold-harmless requirements of each formula

An SEA must apply the variable hold-harmless requirements to the LEA allocations (including 

charter school LEAs) calculated in Step 2a for Basic Grants, Concentration Grants, Targeted 

Grants, and Education Finance Incentive Grants, as required by 34 CFR 200.73. 

Description of the variable hold-harmless requirements:

• The hold-harmless percentage that an SEA applies to an LEA varies based on the 

percentage of formula children who reside within the LEA.

• Under the Basic Grants, Targeted Grants, and Education Finance Incentive Grants 

formulas, the hold-harmless guarantee only applies to an LEA that meets the eligibility 

criteria of the respective formula as determined in Steps 1 and 2a.

• Under the Concentration Grants formula, the hold-harmless guarantee applies to an LEA 

for four years after it last met the formula eligibility criteria.

• The following table summarizes the variable hold-harmless (left column) and how the 

hold-harmless applies under each formula (right column):

Percentage of LEA formula children ages 5 to 17, 

inclusive, as a percentage of its total population of 

children ages 5 to 17, inclusive, and variable holdharmless percentage

Hold-harmless applies on a formula-by-formula 

basis

(i) 30 percent or more: 95 percent

(ii) 15 percent or more but less than 30 percent: 

90 percent 

(iii) Less than 15 percent: 85 percent

• To apply under Basic Grants, Targeted 

Grants, or Education Finance Incentive 

Grants, respectively, an LEA must meet the 

eligibility criteria for the respective formula. 

• To apply under Concentration Grants, an LEA 

must meet the eligibility criteria in the current 

year or have met the criteria at least once in 

the four years prior to the current year. 

An SEA must apply the hold-harmless requirements using ratable reductions on a formula-byformula basis. If the amount of funds available under one of the formulas is enough to satisfy 

the guaranteed hold-harmless amount for each LEA, the SEA must ratably reduce LEAs that are 

above their guaranteed hold-harmless amounts in order to ensure that LEAs that are below their 

guaranteed hold-harmless amounts are raised to their hold-harmless levels and must repeat this 

process until no LEA in the State falls below its guaranteed hold-harmless amount. If the 
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amount of funds available under one of the formulas is not enough to satisfy the guaranteed holdharmless amount for each LEA, an SEA must ratably reduce all LEAs from their hold-harmless 

amounts to the amount of funds available under the formula.

New ESEA Requirement

Special Hold-Harmless Provisions for Newly Opened and Significantly 

Expanded Charter School LEAs

For purposes of implementing the hold-harmless protections in sections 1122(c) 

and 1125A(f)(3) of the ESEA for a newly opened or significantly expanded 

charter school LEA, an SEA must calculate a hold-harmless base for the prior 

year that reflects the new or significantly expanded enrollment of the charter 

school LEA.

(ESEA section 4306(c).)

To ensure that each charter school LEA receives the applicable hold-harmless protection under 

Step 2b above, an SEA must generate a hold-harmless base for a newly opened or significantly 

expanded charter school LEA that reflects the new or significantly expanded enrollment of the 

charter school LEA. This provision is necessary to give effect to ESEA section 4306(a) that 

requires an SEA to take such measures as are necessary to ensure that every charter school LEA 

that newly opens or significantly expands its enrollment receives the Federal funding for which 

the charter school LEA is eligible, notwithstanding the fact that the identity and characteristics of 

the students enrolling in the charter school LEA are not fully and completely determined until

the charter school LEA actually opens or significantly expands. Section 4306(a) ensures that 

each newly opened or significantly expanded charter school LEA receives an allocation that 

reflects its current student count even though allocations may be calculated before the identity 

and characteristics of the students enrolling in the charter school LEA are fully determined.

Because newly opened and significantly expanded charter school LEAs are treated differently 

under section 4306(a) from other LEAs, including other charter school LEAs, it is important to 

ensure that the operation of the hold-harmless protections in ESEA sections 1122(c) and 

1125A(f)(3) do not unduly negate increases in Title I allocations based on the increased student 

population in the charter school LEAs. Accordingly, an SEA must generate a “prior year” base 

amount for each newly opened and significantly expanded charter school LEA in order to apply 

the 85, 90, or 95 hold-harmless percentage described above. With respect to newly opened 

charter school LEAs, this means creating a hold-harmless base where none exists. With respect 

to a significantly expanded charter school LEA, which is defined consistent with 34 CFR 

76.7873

, this means adjusting the prior year’s hold-harmless base to create a new base that 

reflects the increase in the formula count for the current year.

 3 Consistent with 34 CFR 76.787, “[s]ignificant expansion of enrollment means a substantial increase in the number 

of students attending a charter school due to a significant event that is unlikely to occur on a regular basis, such as 

the addition of one or more grades or educational programs in major curriculum areas. The term also includes any 

other expansion of enrollment that the SEA determines to be significant.”
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Newly opened charter school LEA

To determine the “prior year” base amount on which to apply the hold-harmless for a newly 

opened charter school LEA, an SEA would take the following sub-steps (for ease of explanation, 

the example assumes the SEA is making allocations for the 2017−2018 school year (SY)):

Sub-Step A: Refer to the newly opened charter school LEA’s initial allocation for SY 

2017−2018 under each formula before application of the hold-harmless protections in ESEA 

sections 1122(c) and 1125A(f)(3) that the SEA determined in Step 2a of this guidance. (Note 

that, if an SEA calculates these allocations for a new charter school LEA based on projected data 

used to derive a formula count in Step 1, the SEA must revise the allocations once actual data are 

available for the new charter school LEA.) This amount will serve as the “prior year” (i.e., SY 

2016−2017) base amount for the purpose of determining the guaranteed hold-harmless amount. 

In other words, the newly opened charter school LEA’s “prior year” hold-harmless base under 

each formula for calculating the guaranteed hold-harmless amount is the same as the charter 

school LEA’s initial allocation under each formula for SY 2017−2018.

Sub-Step B: Based on the charter school LEA’s derived formula count for SY 2017−2018 

determined in Step 1 compared to its population of children ages 5 through 17 for SY 

2017−2018, determine whether the newly opened charter school LEA’s hold-harmless 

percentage will be 85, 90, or 95 percent of its “prior year” base amount. (See hold-harmless 

table earlier in Step 2b that shows the variable hold-harmless percentages based on an LEA’s 

percentage of formula children.)

Sub-Step C: Multiply the initial allocation discussed in Sub-Step A for each formula by the 

appropriate hold-harmless percentage from Step 2b to determine the newly opened charter school 

LEA’s hold-harmless amount.

This process will ensure that a newly opened charter school LEA is not disadvantaged by the fact 

that it had no Title I allocation in the prior year against which to apply the hold-harmless 

percentage. The following chart illustrates how this process would work in the case of a newly 

opened charter school LEA that has a percentage of formula children that is greater than 30 

percent:

(1)

SY 2016−2017 

allocation

(2)

Initial SY 

2017−2018 

allocation 

determined in 

Step 2a*

(3) 

Guaranteed 

hold-harmless 

amount

(Col. (2) x 95%

Basic grant allocation 0 $92,534 $87,907

Concentration grant allocation 0 $21,900 $20,805

Targeted grant allocation 0 $48,798 $46,358

EFIG allocation 0 $42,620 $40,489

 Total Title I allocation 0 $205,852 $195,559

Current year formula count (Step 1 of this 

guidance)

168

SY 2017−2018 ages 5-17 population 432

Percentage of formula children 39%

Hold-harmless percentage 95%
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ESSA – IMPORTANT FISCAL CHA IMPORTANT FISCAL CHA ORTANT FISCAL CHANGES U.S. DEPARTMENT OF E U.S. DEPARTMENT OF E U.S. DEPARTMENT OF E DUCATION DUCATION DUCATION

* The amount shown in column 2 is also the proxy “prior year” hold-harmless base to be used for determining the guaranteed 

hold-harmless amount for ESEA sections 1122(c) and 1125A(f)(3) purposes.

An SEA must ensure that the 2017−2018 Title I allocation under each formula for a newly 

opened charter school LEA does not fall below the Column 3 amount.

Significantly expanded charter school LEA

To determine the “prior year” hold-harmless base for a significantly expanded charter school 

LEA4, an SEA would take the following sub-steps (for ease of explanation, the example assumes 

the SEA is making allocations for SY 2017−2018):

Sub-Step A: Compare the SY 2017−2018 derived formula count determined in Step 1 with the 

LEA’s SY 2016−2017 derived formula count and calculate the percentage by which the SY 

2017−2018 projected formula count has increased over the SY 2016−2017 actual formula count. 

(Note that if an SEA derived a formula count in Step 1 based on projected data, the SEA must 

revise the derived formula count once actual data are available for the significantly expanded 

charter school LEA.)

Sub-Step B: Multiply the SY 2016−2017 allocation the charter school LEA received under each 

formula by the percentage increase calculated in Sub-Step A to determine the significantly 

expanded charter school LEA’s adjusted “prior year” (SY 2016−2017) hold-harmless base 

amount.

Sub-Step C: Based on the significantly expanded charter school LEA’s derived formula count 

for SY 2017−2018 from Step 1 compared to its enrollment ages 5 through 17 for SY 2017−2018, 

determine whether the significantly expanded charter school LEA’s hold-harmless percentage 

will be 85, 90, or 95 percent of its “prior year” base amount. (See hold-harmless table earlier in 

Step 2b that shows the variable hold-harmless percentages based on an LEA’s percentage of 

formula children.)

Sub-Step D: Multiply the amount determined in Sub-Step B for each formula by the appropriate 

hold-harmless percentage determined in Sub-Step C to determine the significantly expanded 

charter school LEA’s guaranteed hold-harmless amount.

The following chart illustrates how this process would work in the case of a significantly 

expanded charter school LEA that has a percentage of formula children that is at least 15 percent 

and less than 30 percent:

 4 If a charter school LEA has significantly expanded, but its number of formula children has decreased, the charter 

school’s hold-harmless amounts would be its actual allocations from the prior year.
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(1)

SY 

2016−2017 

allocations 

(2) 

Percentage 

increase due to 

expanded 

enrollment in 

SY 2017−2018 

(Line 9)

(3)

Adjustment to 

SY 2016−2017 

base amount 

due to increase 

in formula 

count (Col. (1) 

x (2)

(4)

Adjusted SY 

2016−2017 

base amount 

to reflect 

increase in 

formula count 

(Col. (1) + 

(3))

(5)

Holdharmless 

percentage 

based on 

poverty 

percentage 

(Line 11)

(6)

Guaranteed 

holdharmless 

amount for 

SY 

2017−2018 

allocation 

purposes 

(Col. (4) x 

(5))

1 SY 2016−2017 

actual formula count

277

2 SY 2016−2017 

Basic grant 

allocation

$119,541 52% $62,161 $181,702 90% $163,532

3 SY 2016−2017 

Concentration grant 

allocation

$23,052 52% $11,987 $35,039 90% $31,535

4 SY 2016−2017 

Targeted grant 

allocation

$62,938 52% $32,728 $95,666 90% $86,099

5 SY 2016−2017 

EFIG allocation

$54,923 52% $28,560 $83,483 90% $75,135

6 Total Title I 

allocation

$260,454 $395,890 $356,301

7 SY 2017−2018 

formula count (Step 

1 of this guidance)

420

8 Increase over SY 

2016−2017 count 

(line 7 – Line 1)

143

9 Percentage increase 

(Line 8 ÷ Line 1)

52%

10 SY 2017−2018 ages 

5-17 population

1,432

11 Poverty percentage 

(Line 7 ÷ Line 10)

29%

Please see the Dear Title I Director guidance on applying the hold-harmless to newly opened or 

significantly expanded charter school LEAs that ED issued in 2013 for additional details 

[available at: http://www2.ed.gov/programs/titleiparta/charterschlallocationreq.pdf]. 

Step 3: Determine LEA allocations prior to State reservations

An SEA must sum each LEA’s allocations for Basic Grants, Concentration Grants, Targeted 

Grants, and Education Finance Incentive Grants calculated in Step 2b to determine the LEA’s 

Title I allocation prior to the State-level reservations described in Step 4.
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Step 4: State reservations

Step 4a: Reservation for school improvement

New ESEA Requirement

FY 2017 School Improvement Reservation

An SEA must ratably reduce the allocations of all LEAs calculated in Step 3, 

including newly opened and significantly expanded charter school LEAs, to 

reserve the greater of:

• Seven percent of the SEA’s FY 2017 Title I award; or

• The sum of the total amount that the SEA reserved for school improvement 

under section 1003(a) from its FY 2016 Title I award (generally, 4 percent 

of that award) and the amount of the SEA’s FY 2016 School Improvement 

Grants (SIG) allocation under section 1003(g).

(ESEA section 1003(a).)

Special Rule for FY 2018 and Subsequent Years’ School Improvement 

Reservation

An SEA must ratably reduce the allocations of all LEAs calculated in Step 3 to 

reserve the greater of the amounts described in the two bullets under FY 2017 

and must also follow a special rule.

Special rule for FY 2018 and subsequent years’ allocations

In reserving funds under section 1003(a) from FY 2018 and subsequent years’ 

allocations, an SEA may not reduce an LEA’s Title I allocation below the prior 

year’s amount. (ESEA section 1003(h).) It is possible that in some years this 

special rule will prevent an SEA from reserving the “full amount” for school 

improvement. (The term “full amount” refers to the figure described under the 

heading, “FY 2018 and Subsequent Years’ School Improvement Reservation.”)

Questions 3 and 5 in the 2013 Dear Title I Director guidance [available at: 

http://www2.ed.gov/programs/titleiparta/charterschlallocationreq.pdf] provide 

information on how to implement the special rule for newly opened and 

significantly expanded charter school LEAs. 

 

Step 4a Example

The following example shows how two hypothetical SEAs determine the section 1003(a) 

reservation amounts. (The example assumes that the special rule described above does not 

prevent an SEA from reserving the full amount for school improvement required by section 

1003(a).) For SEA 1, seven percent of its current year Title I allocation (Column 7) is greater 

than the sum of its FY 2016 1003(a) reservation and FY 2016 SIG allocation (Column 5). 

Therefore, SEA 1 reserves the Column 7 figure, as shown in Column 8. Conversely, SEA 2’s 
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sum of its FY 2016 1003(a) reservation and FY 2016 SIG allocation exceeds seven percent of its 

current year Title I allocation. Therefore, SEA 2 reserves the Column 5 figure, as shown in

Column 8.

Col. 1 Col. 2 Col. 3 Col. 4 Col. 5 Col. 6 Col. 7 Col. 8

SEA

FY16 Title IA allocation

FY16 1003(a) 

reservation

(4 percent of 

Col. 2)

FY16 SIG

allocation

Sum of FY16 

1003(a) and 

FY16 SIG

(Col. 3 + Col. 

4)

Current 

Year Title IA allocation

Seven

Percent 

of 

Current 

Year 

Title I-A

allocation

Current 

Year 

1003(a) 

Reservation

(Greater of 

Col. 5 or 

Col. 7)

SEA 1 200,000,000 8,000,000 5,000,000 13,000,000 210,000,000 14,700,00

0

14,700,000

SEA 2 175,000,000 7,000,000 4,500,000 11,500,000 164,000,000 11,480,00

0

11,500,000

Step 4b: Reservation for State administration

An SEA follows the description of this step on pages 32-33 in the Department’s 2003 withinState allocation guidance [available at: 

http://www.ed.gov/programs/titleiparta/seaguidanceforadjustingallocations.doc].

To complete Step 4b, an SEA has two options:

• Proportionately reduce each LEA’s total allocation even if an LEA receives less than 85, 

90, or 95 percent of the total Title I, Part A amount allocated to it in the prior year (holdharmless amount).

• Proportionately reduce the allocation of each LEA in the State (including the allocation 

for Part D, Subpart 2) that is above the LEA’s guaranteed hold-harmless amount to bring 

up the allocation of LEAs below their hold-harmless amount. Repeat this process as 

necessary until no LEA in the State falls below its guaranteed hold-harmless amount.

Step 4c: Optional reservation for direct student services

New ESEA Optional Reservation for Direct Student Services5

After meaningful consultation with geographically diverse LEAs, an SEA may, 

but is not required to, reserve a maximum of three percent of its Title I 

allocation for direct student services (DSS). 

(ESEA section 1003A(a)(1).)

To reserve funds for DSS, an SEA must ratably reduce the allocations of all LEAs, including 

charter school LEAs. 

 5 The Department expects to provide information in another forum (e.g., other guidance) about DSS. This 

guidance focuses on how an SEA would make the reservation.
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From the DSS reservation, an SEA may use up to one percent to administer DSS. (ESEA section 

1003A(a)(2).) For example, if an SEA’s DSS reservation is $1,000,000, it may use no more than 

$10,000 of the $1,000,000 to administer DSS (i.e., one percent of $1,000,000).

C. FREQUENTLY ASKED QUESTIONS

C-1. In implementing the special rule described in Step 4a in FY 2018 and subsequent 

years, what is an LEA’s “prior year amount”?

An SEA has options in what it considers as an LEA’s prior year amount, as long as the SEA 

applies the same option to all LEAs during a given year. The prior year amount may be an 

LEA’s allocation from the previous year at the end of Steps 3, 4a, 4b (if the SEA did not reserve 

funds for DSS in the prior year), or 4c (if the SEA reserved funds for DSS in the prior year). If, 

for FY 2018 and subsequent years, the SEA is unable to reserve the full amount under one of the 

options because of the special rule discussed in Step 4a, the SEA must choose an option that 

results in reserving the full amount unless none of the options result in reserving the full amount; 

if it is not possible under any option to reserve the full amount, the SEA must select the option

that produces the reservation amount that is closest to the full amount.

C-2. If an SEA received the Department’s approval under NCLB to use an alternative 

method to redistribute allocations to LEAs serving less than 20,000 total residents 

(small LEAs), may the SEA continue to do so?

Yes, as long as the SEA continues to use the method approved by the Department. See pages 26-

32 in the Department’s 2003 within-State allocation guidance [available at: 

http://www.ed.gov/programs/titleiparta/seaguidanceforadjustingallocations.doc]. 

C-3. Does the ESEA continue the authority in NCLB for covered SEAs to use an 

alternative method to allocate Concentration Grant funds?

Yes. Under section 1124A(b) of the ESEA, an SEA in a covered State (Alaska, Delaware, New 

Hampshire, Vermont, and Wyoming) may follow Steps 1-2 above for Concentration Grants or 

the steps listed in the second bullet under #3 on pages 31-32 in the Department’s 2003 withinState allocation guidance [available at: 

http://www.ed.gov/programs/titleiparta/seaguidanceforadjustingallocations.doc]. 

C-4. May an SEA reserve funds for the State academic achievement awards 

program?

No. Under the ESEA, as amended by NCLB, if an SEA’s Title I allocation increased over the 

prior year’s amount, the SEA had the option to reserve up to five percent of the increase to 

support the State academic achievement awards program. The ESEA, as amended by the ESSA,

no longer permits this reservation. 
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II.TITLE I WITHIN-DISTRICT ALLOCATIONS

D. OVERVIEW

An LEA may only use Title I funds in an eligible school attendance area (ESEA section 

1113(a)(1)), which is a school attendance area in which the percentage of children from lowincome families is —

• At least as high as the percentage of children from low-income families served by the 

LEA as a whole;

• At least as high as the percentage of children from low-income families in the grade span 

in which the school is located; or 

• At least 35 percent. 

(ESEA section 1113(a)(2).)

Except as provided below, if Title I funds are insufficient to serve all eligible school attendance 

areas, an LEA must —

• Annually rank, without regard to grade spans, eligible school attendance areas in which 

the percentage of children from low-income families exceeds 75 percent (the “75 percent 

poverty threshold”) from highest to lowest according to poverty percentage; and

• Serve the eligible school attendance areas in rank order. 

(ESEA section 1113(a)(3).)

E. CHANGES TO TITLE I WITHIN-DISTRICT ALLOCATION REQUIREMENTS

The ESSA added two requirements to the Title I within-district allocation requirements.

E-1. Ranking high schools

New ESEA Exception to the Ranking Requirement

An LEA may lower the poverty threshold to 50 percent for high schools served 

by the LEA.

(ESEA section 1113(a)(3)(B).)

An LEA must rank its schools above the 75 percent poverty threshold without regard to grade 

span and serve those schools in rank order of poverty before it serves any schools at or below the 

75 percent poverty threshold. Under the new ESEA exception, an LEA may, but is not required 

to, continue to serve (in rank order of poverty) high schools with poverty percentages between 50 

percent and 75 percent before it either serves other schools with a poverty percentage of 75 

percent or below or begins to rank and serve schools by grade span. In other words, an LEA 

may serve high schools with 50 percent or more poverty before it serves any elementary or 

middle schools with a poverty percentage at or below 75 percent.
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E-2. Eligibility of secondary schools using feeder pattern

New ESEA Provides Explicit Authority to Use Feeder Patterns to Determine 

the Poverty Percentages of Secondary Schools

• For determining the number of children from low-income families in a 

secondary school, an LEA may estimate that number by applying the 

average percentage of students from low-income families in the 

elementary school attendance areas that feed into the secondary school 

to the number of students enrolled in the secondary school.

• Before an LEA may use feeder patterns to determine the poverty 

percentage of secondary schools —

- The LEA must notify its secondary schools to inform them of 

the option.

- A majority of its secondary schools must approve the use of 

feeder patterns.

(ESEA sections 1113(a)(5)(B) and (C).)

A “secondary school” means a “nonprofit institutional day or residential school (including a 

public secondary charter school) that provides secondary education, as determined under State 

law, except that the term does not include any education beyond grade 12.” Depending on State 

law, a secondary school might include middle schools as well as high schools. (ESEA section 

8101(45).)

For examples of how to use feeder patterns to establish a poverty percentage for secondary 

schools, see Question 10 on pages 12-15 in the Department’s 2003 Title I within-district 

allocation guidance [available at http://www.ed.gov/programs/titleiparta/wdag.doc].

F. FREQUENTLY ASKED QUESTIONS

F-1. If an LEA participates in the National School Lunch Program’s (NSLP) Community 

Eligibility Provision (CEP), is there information available on how the LEA may use 

NSLP data, including CEP data, to allocate Title I funds to schools?

Yes. The within-district allocation section of the Department’s 2015 Title I CEP guidance 

[available at http://www2.ed.gov/programs/titleiparta/15-0011.doc] provides options for how an 

LEA may use CEP data to allocate Title I funds to schools.

F-2. Have the requirements changed for allocating Title I funds to provide equitable 

services for eligible private school students and their teachers and families?

Yes. See questions O-1 through O-4 in Section V of this guidance: Equitable Services.
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III. TITLE II, PART A ALLOCATIONS

G. OVERVIEW

The ESSA modified the formulas by which the Department allocates Title II, Part A funds to 

SEAs and by which SEAs allocate those funds to LEAs. The following sections provide details 

on the formula changes.

This guidance, coupled with the Non-Regulatory Guidance for Title II, Part A: Building Systems 

of Support for Excellent Teaching and Leading available at:

http://www2.ed.gov/policy/elsec/leg/essa/essatitleiipartaguidance.pdf, supersedes the 

Department’s previous guidance on Title II, Part A of the ESEA as amended by NCLB, entitled 

Improving Teacher Quality State Grants, issued on October 5, 2006.

H. FEDERAL AWARDS TO AN SEA

All SEAs, the Bureau of Indian Education (BIE), and the Outlying Areas are eligible to receive 

funds provided under Title II, Part A. (ESEA section 2101(a).)

New ESEA Changes to the Department’s Allocations to SEAs

• The hold-harmless is phased out over a series of years starting with the 

FY 2017 allocations.

• The share of funds allocated based on ages 5 to 17 in poverty relative to 

the share of funds allocated based on ages 5 to 17 population increases, 

starting in FY 2018.

• State agencies for higher education (SAHEs) are no longer eligible to 

receive an allocation from the Department.

• SEAs are allowed to reserve additional funds for certain State activities 

for principals or other school leaders.

(ESEA section 2101(b)-(c).)

H-1. How the Department determines the amount of each State’s Title II, Part A 

allocation

Step 1: Determine Allocations to the Outlying Areas and the BIE

Prior to calculating State allocations, the Secretary reserves one-half of one percent of the annual 

Title II, Part A appropriation for allocations to the Outlying Areas, and one-half of one percent 

for an allocation to the BIE. (ESEA section 2101(a)(1) and (2).)

The Secretary also may reserve up to one-half of one percent of the annual appropriation for 

evaluation activities. (ESEA section 8601.)
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Step 2: Determine allocations to States

Under the ESEA, as amended by NCLB, the Department first allotted to each SEA the amount 

the SEA received for FY 2001 under the former Eisenhower Professional Development and 

Class-Size Reduction programs. This was the “hold-harmless” amount. This provision was in 

effect through FY 2016. For the purposes of allocating funds to States under the ESEA, as 

amended by the ESSA, the Department will refer to this amount as the “base hold-harmless

amount.”

Title II, Part A, Base Hold-Harmless Amount

State Base HoldHarmless

Amount

State Base HoldHarmless 

Amount

Alabama 33,589,576 Nevada 10,014,069

Alaska 10,014,069 New Hampshire 10,014,069

Arizona 31,644,323 New Jersey 48,824,660

Arkansas 20,304,205 New Mexico 16,779,448

California 234,202,657 New York 179,135,506

Colorado 23,239,119 North Carolina 44,562,470

Connecticut 20,267,446 North Dakota 10,014,069

Delaware 10,014,069 Ohio 80,186,546

District of Columbia 10,014,069 Oklahoma 24,217,943

Florida 93,726,505 Oregon 20,368,786

Georgia 53,915,360 Pennsylvania 88,362,883

Hawaii 10,014,069 Puerto Rico 66,751,522

Idaho 10,014,069 Rhode Island 10,014,069

Illinois 87,593,173 South Carolina 25,971,288

Indiana 35,603,460 South Dakota 10,014,069

Iowa 16,625,275 Tennessee 35,360,499

Kansas 16,940,650 Texas 170,820,831

Kentucky 33,528,904 Utah 13,477,195

Louisiana 49,335,846 Vermont 10,014,069

Maine 10,014,069 Virginia 37,642,753

Maryland 31,112,729 Washington 34,547,334

Massachusetts 39,506,167 West Virginia 18,809,357

Michigan 86,285,253 Wisconsin 35,323,167

Minnesota 29,197,574 Wyoming 10,014,069

Mississippi 31,957,903 American Samoa 850,878

Missouri 36,567,509 Guam 1,985,135

Montana 10,014,069 Northern 

Marianas

484,843

Nebraska 10,291,012 Virgin Islands 1,635,517
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Starting in FY 2017: the Department Must Apply the New Hold-Harmless 

Requirement

Starting in FY 2017, the base hold-harmless amount will be reduced each year by 

14.29 percent. For the next few years, the amount of the State hold-harmless as a 

percentage of its base hold-harmless (the amount received for FY 2001 under the 

former Eisenhower Professional Development and Class-Size Reduction 

programs) is as follows:

Fiscal Year Percentage of FY 2001 base 

hold-harmless allocated to 

State6

FY 2017 85.71%

FY 2018 71.42%

FY 2019 57.13%

FY 2020 42.84%

(ESEA section 2101(b)(1)(C).)

For FY 2017, the amount of Title II, Part A funds that the Department allocates to each State 

after calculating the adjusted base hold-harmless amount for the State (excess funds) is 

determined by the following percentages, which are the same percentages in the ESEA, as 

amended by NCLB:

• 35 percent according to each State’s population of children ages 5 through 17 relative to 

the number of these children in all States; and 

• 65 percent according to each State’s relative numbers of individuals ages 5 through 17 

from families with incomes below the poverty line relative to the number of these 

children in all States.

The Department uses the most current data from the U.S. Census Bureau to make this 

calculation.

 6 Note that in any fiscal year for which the Title II, Part A appropriation is too small to permit allocations that equal 

at least each SEA’s hold-harmless amounts, the Department will ratably reduce each SEA’s allocation to the amount 

available for that fiscal year.
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Starting in FY 2018: the Department Must Apply New Percentages

Beginning in FY 2018, new percentages are phased in. The share of excess funds 

allocated on the basis of a State’s relative number of children ages 5 through 17 

from families with incomes below the poverty line increases and the share 

allocated on the basis of a State’s relative number of children ages 5 through 17 

decreases, as follows:

Fiscal Year Percentage based on 

population ages 5 

through 17

Percentage based on 

population ages 5 

through 17 in poverty

FY 2017 35 65

FY 2018 30 70

FY 2019 25 75

FY 2020 and 

subsequent years

20 80

(ESEA section 2102(b)(2)(B).)

Each SEA must receive at least one-half of one percent of the excess amount. (ESEA section 

2101(b)(2)(B).)

H-2. SEA reservations from the State’s Title II, Part A allocation

An SEA must first reserve at least 95 percent of the State’s Title II, Part A award for subgrants to 

LEAs. It may reserve the remainder of the State’s Title II, Part A allocation for allowable State 

activities. From the remainder, no more than 1 percent of the total State allocation may be used 

for State administrative costs of carrying out the Title II, Part A program. (ESEA section 

2101(c)(2).)

In addition to the funds it reserves for State activities as calculated in the paragraph above, an 

SEA may also reserve up to 3 percent of the amount it initially reserved for LEA subgrants, and 

use these additional funds for allowable State activities for principals or other school leaders (for 

more information on the different activities states can support with this reservation, please refer 

to our previous guidance on Title II). Thus, for an SEA that elects to reserve the maximum

amount of Title II, Part A funds for State activities, the split of the total State allocation between 

LEA-level and SEA-level funds would be as follows:

• 92.15 percent for LEA subgrants; and 

• 7.85 percent for State activities, which includes at least 2.85 percent (3 percent of 95

percent) for State activities for principals or other school leaders. (ESEA section 

2101(c)(1) through (c)(3).)
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Example: A State receiving $10,000,000 that reserved the maximum allowable for State 

activities

State allocation: $10,000,000

State activities 

funds

LEA 

subgrant 

funds

Initial amount reserved 

for State activities 

(5 percent of 

$10,000,000)

$500,000 Initial amount 

reserved for LEA 

subgrants (95

percent of 

$10,000,000)

$9,500,000

Maximum additional 

amount for State 

activities for principals or 

other school leaders 

(3 percent of $9,500,000)

+ $285,000 - $285,000

Maximum total amount 

for State activities

$785,000 Minimum amount 

for LEA subgrants 

$9,215,000

I. SEA AWARDS TO LEAS

An SEA continues to be responsible for determining LEA allocations and for ensuring the LEAs’ 

provision of equitable services to private school students. (See Section V of this guidance: 

Equitable Services.

New ESEA Change to LEA Awards: No Hold Harmless

• The hold-harmless provision, based on the amount of funds an LEA 

received for FY 2001 under the former Eisenhower Professional 

Development and Class-Size Reduction programs, was eliminated.

(ESEA section 2102(a).)

I-1. How an SEA determines the amount of each LEA’s subgrant

Beginning in fiscal year 2017, under the ESEA, there is no longer a “hold-harmless” provision 

governing the calculation of LEA subgrants. An SEA, therefore, distributes funds to LEAs 

based solely on the following formula:

• 20 percent of the funds must be distributed to LEAs based on the relative numbers of 

individuals ages 5 through 17 who reside in the area the LEA serves (based on the most 

recent Census data, as determined by the Secretary); and 
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• 80 percent of the funds must be distributed to LEAs based on the relative numbers of 

individuals ages 5 through 17 who reside in the area the LEA serves and who are from 

families with incomes below the poverty line (based on the most recent Census data, as 

determined by the Secretary). (ESEA section 2102(a).)

I-2. How an SEA may distribute any unclaimed LEA funds

Title II, Part A funds available for LEA use are considered unclaimed if or when one or more 

LEAs decide not to participate in the program, or agree that they cannot use all or a portion of 

the funds they receive. An SEA may reserve these funds for State activities unless, in doing so, 

the SEA would end up reserving an amount of Title II, Part A funds for State activities that is in 

excess of the limits contained in ESEA section 2101(c)(1) – (3) (See Questions H-2 and H-3 in 

the above section on Federal Awards to an SEA); in such cases the SEA must redistribute any 

unclaimed funds to other LEAs. However, it may exercise some flexibility in determining how 

this redistribution will occur. For example, it may proportionally increase the subgrant amount 

provided to all participating LEAs. Alternately, an SEA could establish special procedural and 

distribution criteria (subject to any State rulemaking requirements), and make these funds 

available to those LEAs that meet these criteria.
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IV. MAINTENANCE OF EFFORT REQUIREMENTS

J. OVERVIEW

An LEA may receive funds under a covered program for any fiscal year only if the SEA finds 

that either —

• the combined fiscal effort per student; or 

• the aggregate expenditures 

of State and local funds with respect to the provision of free public education by the LEA for the 

preceding fiscal year was not less than 90 percent of the combined fiscal effort per student or 

aggregate expenditures for the second preceding fiscal year. (ESEA section 1118(a) and 

8521(a).) If an LEA fails to maintain effort by falling below 90 percent of both the combined 

fiscal effort per student and aggregate expenditures (using the measure most favorable to the 

LEA), the SEA must reduce the LEA’s allocation under a covered program in the exact 

proportion by which the LEA failed to maintain effort. (ESEA section 8521(b).)

ED may waive the maintenance of effort requirement for an LEA if it determines that a waiver 

would be equitable due to —

• exceptional or uncontrollable circumstances; or

• a precipitous decline in the financial resources of the LEA. 

(ESEA section 8521(c).)

K. CHANGES TO MAINTENANCE OF EFFORT REQUIREMENTS

The ESEA, as amended by the ESSA, made several updates to the maintenance of effort 

provision. Please note that provisions that did not change, including the information on 

expenditures to be included, expenditures to be excluded, and the definition of preceding fiscal 

year, are still available on page 11 of the 2008 Title I fiscal guidance [available at: 

http://www.ed.gov/programs/titleiparta/fiscalguid.doc] and remain applicable.
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K-1. Updates to covered programs

Updated Programs to which the Maintenance of Effort Requirement Applies

• Title I, Part A – improving basic programs operated by LEAs

• Title I, Part D – prevention and intervention programs for children and 

youth who are neglected, delinquent, or at-risk

• Title II, Part A – supporting effective instruction

• Title III, Part A –English language acquisition, language enhancement, 

and academic achievement

• Title IV, Part B – 21st Century Community Learning Centers

• Title V, Part B, Subpart 2 − Rural and low-income school program

• Title VI, Part A, Subpart 1 − Indian education

(ESEA sections 8101(11), 6118(c), 8521(a).)

K-2. Reduction for failing to maintain effort

An SEA must reduce an LEA’s allocation under a covered program if the LEA fails to maintain effort. 

Prior to the ESSA, the reduction was made based on failing to maintain effort compared to the preceding 

fiscal year only. Under the ESSA, the SEA has added flexibility and the reduction will be made based on 

the new requirement below. 

New Flexibility regarding Reduction of an LEA’s Allocation for Failing to 

Maintain Effort

• An SEA must reduce an LEA’s allocation under a covered program if 

the LEA fails to maintain effort in a given fiscal year and also failed to 

maintain effort in one or more of the five immediately preceding fiscal 

years.

(ESEA section 8521(b)(1).)

K-3. Waiver for exceptional or uncontrollable circumstances

The statute provides two bases (an exceptional or uncontrollable circumstances or a precipitous 

decline in the financial resources of an LEA) to warrant the Secretary’s granting a waiver of 

maintenance of effort. With respect to exceptional or uncontrollable circumstances, prior to the 

ESSA, the statute included the example of a natural disaster. Under the ESSA, a new example 

was inserted so that exceptional or uncontrollable circumstances also include a change in the 

organizational structure of the LEA. In addition to these two examples listed in the statute, there

can be other instances of exceptional or uncontrollable circumstances that might warrant when a 

waiver request will be considered.
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New Example for What Would Qualify an LEA to Receive a Waiver

• Exceptional or uncontrollable circumstances, such as a change in the 

organizational structure of the LEA.

(ESEA section 8521(c)(1).)

L. FREQUENTLY ASKED QUESTIONS

L-1. What are examples of a “change in the organizational structure of an LEA” that 

could potentially qualify an LEA for a waiver of the maintenance of effort 

requirement? 

Below is a list of examples for what a change in the organizational structure of an LEA might 

mean. 

• An LEA changes its configuration. For example:

- The LEA merges with another LEA.

- The LEA divides into two or more LEAs.

- The LEA eliminates grade levels (e.g., previously served grades K-12 and now serves 

grades K-8)

• An LEA changes its management or operations structure to create economies of scale to 

be more efficient. For example, each school in the LEA employs budget and fiscal 

management staff. The LEA makes the decision to consolidate budget and fiscal 

management staff into a single team located in the central office.

L-2. How does a waiver of maintenance of effort affect an SEA’s determination of 

whether an LEA failed to maintain effort for one or more of the five immediately 

preceding fiscal years? 

If an LEA receives a waiver of the maintenance of effort requirement from the Department for a 

given fiscal year, the LEA has effectively maintained effort for that fiscal year. Accordingly, in 

determining whether the LEA had failed to maintain effort for one or more of the five 

immediately preceding fiscal years, the SEA would count the year in which the LEA received a 

waiver as a year of maintaining effort. 

L-3. If an LEA wishes to request a waiver of maintenance of effort based on a change in 

its organizational structure, what evidence should an LEA provide to the 

Department to demonstrate that the change in organizational structure caused the 

LEA to fail to maintain effort?

In requesting a waiver based on a change in its organizational structure, an LEA would need to 

provide evidence of that change and the reasons why the change caused the LEA to fail to 

maintain effort. To explain the change in its organizational structure, the LEA might provide a 

narrative description of the change or a visual, organizational chart or map, if relevant. The LEA 

would also need to explain why the change caused the LEA to fail to maintain effort. In doing 
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so, the LEA might show its expenditures related to its organizational structure before and after 

the change to demonstrate that the change resulted in lower expenditures.
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V.EQUITABLE SERVICES

M. OVERVIEW

The ESEA includes separate provisions governing equitable services for eligible private school 

students, teachers and other educational personnel, and families under Title I and programs 

covered under Title VIII, Part F, Subpart 1, Uniform Provisions Subpart 1—Private Schools: 

Equitable Services for Private School Students, Teachers, and Other Educational Personnel (Title 

VIII).7 Many of those requirements remain unchanged from requirements under the ESEA as 

amended by NCLB. The ESSA, however, made a number of significant changes. Some of those 

changes are common to the equitable services requirements under both Title I and Title VIII; 

others are different. Accordingly, Part N of this section addresses significant new requirements 

common to the equitable services provisions in Titles I and VIII; Part O focuses on significant 

changes to requirements under Title I; and Part P focuses on significant changes to requirements 

under Title VIII and the covered programs subject to those requirements.

Please note that, except as otherwise provided in this guidance, the existing non-regulatory 

guidance documents, Title I Services to Eligible Private School Children [available at: 

http://www2.ed.gov/programs/titleiparta/psguidance.doc] and issued on Oct. 17, 2003 and Title 

IX, Part E Uniform Provisions, Subpart 1—Private Schools [available at: 

http://www2.ed.gov/policy/elsec/guid/equitableserguidance.doc] and revised on Mar. 2009, 

remain applicable.

N. COMMON EQUITABLE SERVICES REQUIREMENTS UNDER TITLES I AND 

VIII 

New Requirement: Ombudsman

To help ensure equitable services and other benefits for eligible private school 

children, teachers and other educational personnel, and families, an SEA must 

designate an ombudsman to monitor and enforce ESEA equitable services 

requirements under both Title I and Title VIII.

(ESEA sections 1117(a)(3)(B) and 8501(a)(3)(B).)

N-1. What are the roles and responsibilities of an ombudsman?

An ombudsman should serve as an SEA’s primary point of contact for addressing questions and 

concerns from private school officials and LEAs regarding the provision of equitable services 

under Titles I and VIII. In addition, the ombudsman is required to monitor and enforce the 

 7 Under the ESSA, the Title I equitable services requirements previously in section 1120 of the ESEA, as amended 

by NCLB, are now in section 1117 of the ESEA, as amended by the ESSA. Similarly, the equitable services 

requirements previously in section 9501 of the ESEA, as amended by NCLB, are now in section 8501 of the ESEA, 

as amended by the ESSA. 
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equitable services requirements under Titles I and VIII and, thus, should have a significant role 

in the State’s monitoring process. Furthermore, the ombudsman should ensure that private 

school officials know how to contact the ombudsman. The following are examples of activities 

the ombudsman could undertake in fulfilling the roles and responsibilities of the position:

• Serve as a general resource regarding equitable services requirements for both LEAs and 

private school officials, which may include conducting initial outreach to define the 

contours of the ombudsman’s responsibilities.

• Develop, in partnership with other relevant SEA staff, monitoring protocols applicable to 

the provision of equitable services and participate in a sample of any monitoring activity.

• Provide technical assistance regarding equitable services requirements for SEA staff 

administering applicable programs, LEA staff, and private school officials.

• Establish a process for receiving documentation of agreement from LEAs consistent with 

the consultation requirement that the results of such agreement shall be transmitted to the 

ombudsman. (ESEA section 1117(b)(1).)

• Participate in the State’s Title I Committee of Practitioners (ESEA section 1603(b)) and, 

as applicable, nonpublic schools working group.

N-2. What specific responsibilities does an ombudsman have with respect to monitoring 

and enforcement?

The primary responsibilities of an ombudsman are to monitor and enforce the equitable services 

requirements in Titles I and VIII. Accordingly, an ombudsman should work with SEA staff 

administering Title I and programs covered under Title VIII to develop monitoring protocols 

applicable to the provision of equitable services under each program. To ensure that monitoring 

protocols are being followed, the ombudsman should take an active role in the monitoring 

process, particularly with respect to the resolution of any findings regarding equitable services 

requirements under Titles I and VIII. The ombudsman also should serve as the primary point of 

contact for responding to and resolving any complaints regarding equitable services that the SEA 

receives under its ESEA complaint procedures.

N-3. Who may serve as an ombudsman?

An SEA has discretion in determining who to designate as an ombudsman. In determining the 

relevant qualifications of the ombudsman position, an SEA should consult with appropriate 

private school officials. Within most States there is a statewide private school coalition with 

representatives of the various private schools within the State. SEAs might consider engaging 

such private school coalitions. An SEA should consider the following factors in determining 

who will serve as an ombudsman:

• Knowledge: Does the individual have sufficient experience and demonstrate thorough 

knowledge and understanding regarding the equitable services provisions, including the 

statute, regulations, and guidance, necessary to implement, monitor, and enforce the 

equitable services requirements under both Titles I and VIII?

• Capacity: Will the ombudsman work alone or in collaboration with other State Federal 

program directors? Does the individual have experience with integrating input from 

other technical experts and program specialists, including those at the U.S. Department 

of Education, and communicating it to the appropriate audiences?
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• Impartiality: Will the individual be able to carry out the ombudsman duties, including 

monitoring, enforcement, and resolving complaints, in a fair and impartial manner? Will 

the individual be able to provide guidance to LEAs and private school officials to 

facilitate the goal of reaching agreement when agreement cannot be achieved 

independently through consultation? (ESEA sections 1117(b)(1) and 8501(b)(1).)

N-4. What funds are available to support an ombudsman?

If an SEA consolidates State administrative funds under ESEA section 8201, it may support its 

ombudsman using those funds. If an SEA does not consolidate State administrative funds, it 

nonetheless may support its ombudsman using funds reserved for State administration under 

Title I and the covered programs under ESEA section 8501(b). Under these circumstances, 

however, the SEA must ensure that the ombudsman’s salary is charged to each program based on 

the relative benefit received. (2 CFR 200.405(a).)

N-5. What is the timeline for an SEA to designate an ombudsman?

Under the Consolidated Appropriations Act, 2016, the equitable services requirements under the 

ESEA, as amended by NCLB, continue to apply through the 2016−2017 school year. However, 

an LEA must consult with private school officials to plan for the 2017−2018 school year before 

it makes any decision that affects the opportunity of eligible private school children, their 

teachers, and their families to participate in Title I or covered programs under Title VIII. Thus, 

an SEA should designate an ombudsman in sufficient time to be of assistance as LEAs and 

private school officials begin the consultation process for the 2017−2018 school year, which 

would generally occur in the late winter/early spring of 2017.

New Requirement: Obligation of Funds

Funds allocated to an LEA for educational services and other benefits to 

eligible private school children, teachers and other educational personnel, and 

families must be obligated in the fiscal year for which the funds are received by 

the LEA.

(ESEA sections 1117(a)(4)(B) and 8501(a)(4)(B).)

N-6. What is the purpose of this requirement given that an LEA may carry over funds 

from a given fiscal year and spend those funds in the succeeding fiscal year?

The purpose of this requirement is to ensure that an LEA uses the funds available under Title I or 

a covered program under Title VIII to provide equitable services in the fiscal year for which the 

funds were appropriated to ensure that eligible students, teachers and other educational 

personnel, and families receive the services to which they are entitled in a timely manner. This 

provision reinforces the requirement that an LEA conduct timely consultation with private school 

officials to design appropriate equitable services so that those services can begin at the beginning 

of the school year for which the funds are appropriated.
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N-7. May an LEA carry over unobligated funds despite this new statutory requirement 

regarding obligation of funds?

In general, to ensure that equitable services are provided in a timely manner, an LEA must 

obligate the funds allocated for equitable services under all applicable programs in the year for 

which they are appropriated. (ESEA sections 1117(a)(4)(B) and 8501(a)(4)(B).) There may be 

extenuating circumstances, however, in which an LEA is unable to obligate all funds within this 

timeframe in a responsible manner. Under these circumstances, the funds may remain available 

for the provision of equitable services under the respective program during the subsequent school 

year. In determining how such carryover funds will be used, the LEA must consult with 

appropriate private school officials. (ESEA sections 1117(b) and 8501(c).)

New Requirement: Notice of Allocation

An SEA must provide notice in a timely manner to appropriate private school 

officials in the State of the allocation of funds for educational services and other 

benefits under each ESEA program that an LEA has determined are available 

for eligible private school children, teachers and other educational personnel, 

and families.

(ESEA sections 1117(a)(4)(C) and 8501(a)(4)(C).)

N-8. What information must an SEA include in the notice of allocation that the SEA 

must provide to private school officials?

An SEA must annually provide information on the amount of funds, by program, allocated for 

equitable services under Title I and each covered program under section ESEA section 8501(b) 

that each LEA responsible for providing equitable services has determined are available for 

eligible private school students, teachers and other educational personnel, and families. Such 

documentation should indicate how the allocation was determined.

N-9. How should an SEA disseminate the notice of allocation?

An SEA should consult with appropriate private school officials to determine an effective 

manner for disseminating the notice of allocation to appropriate private school officials, which 

may include notification through the ombudsman. An SEA may consider methods such as 

publicly posting this information on the SEA’s website, using an email distribution list of private 

school officials, or other method that will ensure that this information is available to appropriate 

private school officials.

N-10. When should an SEA disseminate the notice of allocation?

An SEA should consult with LEAs and appropriate private school officials to determine a 

reasonable timeline for providing the notice of allocation. In general, an SEA should ensure that 

the notice is provided prior to the beginning of the school year.
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New Requirement: Compliance – State Services

An SEA must provide equitable services directly or through contracts with 

public or private agencies, organizations, or institutions, if appropriate private 

school officials have —

• Requested that the SEA provide such services directly; and

• Demonstrated that an LEA has not met applicable equitable services 

requirements in accordance with the procedures for making such a 

request, as prescribed by the SEA.

(ESEA sections 1117(b)(6)(C) and 8501(c)(6)(C).)

N-11. Under what circumstances is an SEA required to provide equitable services in lieu 

of an LEA?

An SEA must provide equitable services in lieu of an LEA if appropriate private school officials 

(1) have requested that the SEA do so; and (2) have demonstrated in accordance with the SEA’s 

procedures for making such requests that the LEA has not met the equitable services 

requirements, as applicable, under ESEA section 1117 or 8501.

N-12. What should an SEA include in its procedures governing a request by private school 

officials for the SEA to provide equitable services directly or through a third-party 

provider?

An SEA should consult with appropriate private school officials in developing procedures under 

which private school officials may request the SEA to provide equitable services in lieu of an 

LEA. For example, it is likely that most instances of non-compliance with equitable services 

requirements by an LEA can be corrected with minimal intervention by the SEA. Accordingly, 

consistent with the standards the Secretary must use for a bypass8 (see ESEA section 8504) 

under the equitable services requirements in Titles I and VIII, an SEA might develop procedures 

that require private school officials to demonstrate that an LEA has substantially failed or is 

unwilling to provide equitable services before the SEA intervenes to provide equitable services 

directly or through a third-party provider. An SEA should make available a standard template 

for requests and have transparent procedures for evaluating such requests.

 8 A bypass is a means by which the Secretary directly provides equitable services to private school students and 

teachers through a third-party provider.
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Change to Existing Requirement: Consultation

The goal of consultation is agreement between the LEA and appropriate private 

school officials on how to provide equitable and effective programs for eligible 

private school children. 

(ESEA sections 1117(b)(1) and 8501(c)(1), (5).)

N-13. What does “the goal of reaching agreement” between an LEA and appropriate 

private school officials entail? 

The “goal of reaching agreement” between an LEA and appropriate private school officials is 

grounded in timely, meaningful, and open communication between the LEA and the private 

school officials on key issues that are relevant to the equitable participation of eligible private 

school students, teachers and other education personnel, and families in ESEA programs. 

Meaningful consultation provides ample time and a genuine opportunity for all parties to express 

their views, to have their views seriously considered, and to discuss viable options for ensuring 

equitable participation of eligible private school students, teachers and other education 

personnel, and families. This assumes that the LEA has not made any decisions that will impact 

the participation of private school students and teachers in applicable programs prior to 

consultation, or established a blanket rule that precludes private school students and teachers 

from receiving certain services authorized under applicable programs. An LEA should consult

with private school officials about the timeline for consultation and provide adequate notice of 

such consultation to ensure meaningful consultation and the likelihood that those involved will 

be well prepared with the necessary information and data for decision-making. 

Successful consultation begins well before the implementation of services, establishes positive 

and productive working relationships, makes planning effective, continues throughout 

implementation of equitable services, and serves to ensure that the services provided meet the 

needs of eligible students and teachers. 
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O. EQUITABLE SERVICES UNDER TITLE I

Change to Existing Requirement: Allocating Funds for Equitable Services

Expenditures for equitable services to eligible private school children, teachers 

and other educational personnel, and families must be equal to the proportion of 

funds allocated to participating public school attendance areas based on the 

number of children from low-income families who reside in those attendance 

areas and attend private schools. An LEA must determine the proportionate 

share of Title I funds available for equitable services based on the total amount 

of Title I funds received by the LEA prior to any allowable expenditures or 

transfers of funds.

(See ESEA section 1117(a)(4)(A).)

O-1. May an LEA reserve funds off the top of its Title I allocation before it allocates 

funds for equitable services? 

No. An LEA must determine the amount of funds available for providing equitable services 

prior to any expenditures or transfers of funds. This includes all reservations previously taken 

“off the top” of an LEA’s Title I allocation, including reservations for administration, parental 

involvement, and district-wide initiatives.

O-2. How does an LEA determine the proportionate share of Title I funds available for 

all equitable services activities (i.e., administration, instruction, activities for parents 

and families of participating private school students, and professional development 

for teachers of participating private school students) now that this amount must be 

determined before any allowable expenditures or transfers of funds, including offthe-top reservations? 

Once an LEA has established the participating public school attendance areas (see B-1 and B-2 

of the Title I Services to Eligible Private School Children (Oct. 17, 2003)), it would first 

determine the number of children from low-income families residing in each participating public 

school attendance area who attend public schools and private schools. The LEA would then 

determine the overall proportion of children from low-income families who reside in 

participating public school attendance areas and who attend public schools and private schools. 

Using the proportion of children from low-income families who attend private schools, the LEA 

would determine the amount of funds available for equitable services based on that proportionate 

share of the LEA’s total Title I allocation. For example, an LEA with four Title I public school 

attendance areas and a total Title I allocation of $1,000,000 would determine the total amount 

available for all equitable services activities (proportionate share) as follows:
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EXAMPLE OF DETERMING THE AMOUNT OF TITLE I FUNDS FOR EQUITABLE 

SERVICES

Public School 

Attendance Area

Number of Public 

School Low-Income 

Children 

Number of Private 

School Low-Income 

Children 

Total Number of 

Low-Income 

Children 

A 500 120 620

B 300 9 309

C 200 6 206

D 350 15 365

TOTAL 1,350 150 1,500

PROPORTIONATE

SHARE 

90% 10%

$900,000 $100,000

O-3. How does an LEA reserve Title I funds for administering equitable services for 

private school students?

From the proportionate share of Title I funds available to provide equitable services, an LEA 

may reserve an amount that is reasonable and necessary to administer equitable services. An 

LEA determines this amount separately from the funds needed to administer the Title I program 

for students in public schools. The LEA should discuss administrative costs for implementing 

equitable services during consultation with appropriate private school officials.

O-4. How does an LEA determine the amount of Title I funds to be used for parent and 

family engagement activities for participating private school students?

ESEA section 1116(a)(3)(A) requires an LEA to reserve and spend at least 1 percent of its Title I 

allocation to carry out required Title I parent and family engagement activities if the LEA’s Title 

I allocation exceeds $500,000. To determine the minimum amount it must spend on parent and 

family engagement activities, an LEA must calculate 1 percent of its total Title I allocation. The 

LEA then applies the proportionate share percentage for services to private school students in 

question O-2 to determine how much it must spend for parent and family engagement activities 

for the families and parents of eligible private school students. The LEA must then spend that 

amount from the proportion of its Title I allocation available for equitable services for private 

school students. In other words, the LEA does not reserve a portion of its 1 percent reservation 

for parent and family engagement activities for participating private school students; rather, this 

amount comes from the proportionate share that the LEA already determined under question O2.

EXAMPLE OF EQUITABLE SERVICES FOR PARENTS AND FAMILIES

An LEA’s total Title I allocation is $1,000,000. From that amount, $100,000 (10 percent) is 

allocated for all Title I equitable services activities and $900,000 (90 percent) for all Title I 

activities in public schools. One percent of the LEA’s total Title I allocation is $10,000

($1,000,000 x .01). Therefore, it must spend $1,000 (10% of $10,000) from the $100,000 

allocated for all equitable services activities to provide equitable services for the parents and 
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families of participating private school students and reserve $9,000 (90% of $10,000) from the 

$900,000 available for Title I activities in public schools for the parents and families of 

participating public school students.

EXAMPLE OF EQUITABLE SERVICES FOR PARENTS AND FAMILIES OF 

ELIGIBLE PRIVATE SCHOOL CHILDREN

LEA’s Title I 

allocation

1% for parent and 

family engagement

Proportionate share 

for equitable services 

for parents and 

families (based on 

example under 

question O-4

Source of funds for 

equitable services 

for parents and 

families

(proportionate 

share under 

question O-4 = 

$100,000)

$1,000,000 $10,000 $1,000 ($10,000 x 

10%)

$100,000 − 

$1,000=$99,000 

remaining for 

instruction and 

professional 

development

New Requirement: Transmitting Agreement on Consultation to the 

Ombudsman

The results of agreement following consultation must be transmitted to the 

SEA’s equitable services ombudsman.

(ESEA section 1117)(b)(1).)

O-5. How should an LEA transmit the result of agreement on consultation?

The ombudsman should establish a process for receiving documentation of agreement from each 

LEA consistent with the consultation requirement that the results of such agreement shall be 

transmitted to the ombudsman. (ESEA section 1117(b)(1).) For example, the ombudsman may 

direct an LEA to document agreement on the same form the LEA uses to document affirmation 

of consultation and submit that form to the ombudsman. 
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Changes to Existing Requirement: Consultation

The topics subject to consultation have been expanded to include the following:

• How the proportion of funds allocated for equitable services is 

determined.

• Whether the LEA will provide services directly or through a separate 

government agency, consortium, entity or third-party contractor.

• Whether to provide equitable services to eligible private school children 

by pooling funds or on a school-by-school basis.

• When, including the approximate time of day, services will be provided.

• Whether to consolidate and use funds available for Title I equitable 

services in coordination with eligible funds available for equitable 

services under programs covered under section 8501(b) to provide 

services to eligible private school children in participating programs.

• The written affirmation that consultation has occurred must provide the 

option for private school officials to indicate such officials’ belief that 

timely and meaningful consultation has not occurred or that the program 

design is not equitable with respect to eligible private school children.

(ESEA section 1117(b)(1).)

O-6. Have the options available for using funds to provide equitable services under Title 

I changed under the ESSA?

No. The only change is that the statute now specifies that an LEA must consult with private 

school officials regarding whether to provide services by pooling or on a school-by-school basis. 

For an explanation of pooling under Title I, see Title I Services to Eligible Private School 

Children (Oct. 17, 2003, Questions B-16-18 [available at 

http://www2.ed.gov/programs/titleiparta/psguidance.doc]. 

O-7. What does it mean to consolidate and use Title I funds in coordination with eligible 

funds available for equitable services under programs covered under ESEA section 

8501(b) to provide services to eligible private school children in participating 

programs?

In consultation with appropriate private school officials, an LEA must consider whether to 

consolidate and use Title I funds to provide equitable services to eligible private school children 

participating under Title I in coordination with funds for equitable services from programs 

covered under ESEA section 8501(b). Coordinating the use of Title I funds with the use of funds 

available from programs covered under Title VIII could greatly improve the equitable services 

available to Title I participating private school students. Too often, the amount of funds 

available under Title I or Title VIII programs is not sufficient to provide robust equitable 

services. If an LEA coordinates the use of funds from a variety of programs, however, the LEA 

can maximize the services it can provide and use all the funds more efficiently and effectively. 
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For example, through coordination, an LEA with limited available funds might use Title I funds 

to provide instructional services to Title I-eligible participating private school students; use Title 

II funds to provide professional development to those students’ teachers (as opposed to all 

teachers in a given school); use Title III funds to improve the English proficiency of English 

learners among the participating students; and use Title IV funds to provide necessary counseling 

services to the most-at risk eligible students. Funds under each program would be used for 

allowable activities under each program; yet, through a coordinated effort, they could better 

serve in a comprehensive manner the needs of the most at-risk private school students. Such 

coordination would eliminate the silo approach through which an LEA consults with private 

school officials on each program individually and separately, without regard to whether the 

services could be more effective were they coordinated, resulting in a non-cohesive delivery of 

equitable services by the LEA. 

P. EQUITABLE SERVICES UNDER TITLE VIII

In addition to the equitable services provisions under Title I, Part A contained in ESEA section 

1117, a number of other programs include equitable services requirements. Those programs are 

listed below. The equitable services requirements that apply to those programs are contained in 

ESEA section 8501.

Change to Existing Requirement: Updates to Programs Covered Under 

Title VIII

ESSA updated the covered programs to include the following:

• Title I, Part C − Education of migratory children

• Title II, Part A − Supporting effective instruction state grants

• Title III, Part A − English language acquisition, language enhancement, 

and academic achievement

• Title IV, Part A − Student support and academic enrichment grants

• Title IV, Part B − 21st Century Community Learning Centers

(ESEA section 8501(b).) 
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Change to Existing Requirement: Complaint Process for Participation of 

Private School Children – Time Limit

The timeframe that an SEA has for responding to a complaint from parents, 

teachers, or other individuals concerning violations of ESEA section 8501 

regarding the participation by private school children and teachers is 45 days. 

In addition, the Secretary must investigate and resolve an appeal of an SEA’s 

resolution of a complaint within 90 days.

(ESEA section 8503.)

Changes to Existing Requirement: Consultation

The topics subject to consultation have been expanded to include the following:

• How the amount of funds available for equitable services is determined.

• Whether the agency, consortium, or entity responsible for providing 

equitable services will provide those services directly or through a 

separate government agency, consortium, or entity, or through a thirdparty contractor.

• Whether to provide equitable services to eligible private school 

participants (1) by creating a pool or pools of funds with all of the funds 

allocated under programs covered under section 8501(b) or (2) on a 

school-by-school basis based on each the proportionate share of funds 

available to provide services in each school.

• Documentation: Each LEA shall maintain in the agency’s records, and 

provide to the SEA involved, a written affirmation signed by officials of 

each participating private school that the meaningful consultation 

required by this section has occurred. The written affirmation shall 

provide the option for private school officials to indicate such officials’ 

belief that timely and meaningful consultation has not occurred or that 

the program design is not equitable with respect to eligible private 

school children. If such officials do not provide such affirmation within 

a reasonable period of time, the LEA shall forward the documentation 

that such consultation has, or attempts at such consultation have, taken 

place to the SEA.

(ESEA section 8501(c).)

P-1. Have the options available for using funds to provide equitable services changed 

under the ESSA?

No. An LEA continues to have the option of expending funds for equitable services on a schoolby-school basis or by pooling. The only change is that the statute now specifies that an LEA 

must consult with private school officials regarding these options. For an explanation of pooling

under Title VIII applicable programs, see Title IX, Part E Uniform Provisions, Subpart 1—

Private Schools (Revised Mar. 2009), Question F.10 [available at 

http://www2.ed.gov/policy/elsec/guid/equitableserguidance.doc.question.].
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Change to Existing Requirement: Applicability of Equitable Services under 

Title II, Part A

The requirements in section 9501(b)(3) of the ESEA, as amended by NCLB, 

limiting the applicability of the equitable services requirements for Title II, Part 

A to funds used by the LEA to provide professional development to teachers and 

others has been removed.

(ESEA section 8501(b).)

P-2. How does an LEA determine the amount required for Title II, Part A equitable 

services to private school teachers and other educational personnel now that this 

amount must be determined based on the LEA’s total Title II, Part A allocation?

The amount an LEA must reserve to provide equitable services for private school teachers and 

other educational personnel for Title II, Part A services is based on the LEA’s total Title II, Part

A allocation, less administrative costs. The LEA determines the amount of funds available for 

Title II, Part A equitable services for private school teachers and other educational personnel by 

calculating, on a per-pupil basis, the amount available for all public and private school students 

enrolled in participating private elementary and secondary schools in areas served by the LEA 

(regardless of a student’s residency), taking into consideration the number and needs of the

children, their teachers and other educational personnel to be served.

EXAMPLE OF FORMULA TO DETERMINE AMOUNT 

FOR TITLE II, PART A EQUITABLE EXPENDITURES

A. Number of Students

A1: LEA Enrollment 900

A2: Participating Private Schools Enrollment 100

A3: Total Enrollment = A1 + A2 1,000

B. Title II, Part A Allocation 

B1: Total LEA Allocation $1,000,000

B2: Administrative Costs (for public and private school programs) $50,000

B3: LEA Allocation Minus Admin Costs = B1-B2 $950,000

C. Per Pupil Rate

C1: B3 divided by A3 $950

D. Equitable Services

Amount LEA must reserve for equitable services for private school 

teachers and other educational personnel = A2 x C1

$95,000
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P-3. What types of activities may an LEA now provide to private school participants?

An LEA may continue to use Title II, Part A funds to provide professional development 

activities for teachers, principals, and other school leaders to address the specific needs of their 

students. Additionally, there may be other permissible uses of Title II, Part A funds for the 

benefit of private school participants. Any use of Title II, Part A funds for the benefit of private 

school participants must:

• Be an allowable local use of Title II, Part A funds under the authorizing statute. (ESEA 

section 2103(b)(3).)

• Meet the specific needs of students enrolled in a private school, and not the school itself. 

Title II, Part A funds may not be used to meet the needs of a private school or the general 

needs of the students enrolled in the private school. In some instances, however, a 

program or activity that primarily benefits a private school’s students (because it 

addresses specific, rather than general, needs of the students) will also incidentally 

benefit the school. (34 CFR 76.658.)

• Ensure that the public agency (e.g., an LEA) responsible for providing equitable services 

retains control of the funds used to provide such services. In addition, equitable services 

must be provided by either an employee of the public agency or through a contract by the 

public agency with an individual, association, agency, or organization. These employees, 

individuals, associations, agencies, or organizations providing the services must be 

independent of the private school and any religious organization and the employment or 

contract must be under the control and supervision of the public agency. (ESEA section 

8501(d).)

Equitable services under Title II, Part A may not be used for class-size reduction (ESEA section 

2103(b)(3)(D)) in a private school because contracts for private school teachers and staff would 

be inconsistent with the requirements in ESEA section 8501(d) regarding public control of funds 

and the supervision and control of employees or contractors.

P-4. Have the options available for using funds to provide State-level equitable services 

under Title II, Part A changed?

Section 2101(c)(1) of the ESEA allows the SEA to reserve up to five percent of its overall Title 

II, Part A allocation for State-level activities (defined in ESEA section 2101(c)(4)); and section 

2101(c)(3) allows the SEA to reserve an additional amount of not more than three percent of the 

amount otherwise reserved for LEA subgrants for State-level principal or other school leader 

activities. Under section 8501(a)(1), the SEA has responsibilities to implement equitable 

services for private school teachers and other educational personnel to the extent that it reserves 

any funds under these provisions for State-level activities. The SEA determines the amount of 

Title II, Part A funds that it must reserve for equitable services to private school teachers and 

other educational staff by calculating, on a per-pupil basis, the amount available for all public 

and private school children in the area of the State to be served, taking into consideration the 

number and needs of the children, their teachers and other educational personnel to be served. 

(ESEA section 8501(a)(4)(A).)

State-level activities in which private school teachers may participate should be determined in 

consultation between the SEA and appropriate private school representatives. But as with the 

permissible uses of Title II, Part A funds an LEA makes available for equitable services (see 
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question P-3e), any activity an SEA provides to private school participants under Title II, Part A

must primarily benefit the children enrolled in the private school, not the school itself. Similarly, 

as with LEAs, the SEA may not use Title II, Part A funds to meet the general needs of the private 

school unless providing activities that primarily benefit the private school’s students (because it 

addresses specific, rather than general, needs of the students) also incidentally benefit the school. 

(See 34 CFR 76.658.)

Q. FREQUENTLY ASKED QUESTIONS UNRELATED TO ESSA CHANGES

Q-1. Does a private school student’s participation in a Federal or State private school 

choice program affect that private school student’s eligibility for ESEA equitable 

services? 

No. Participation in a Federal or State private school choice program does not affect a private 

school student’s eligibility for ESEA equitable services. Although most students enrolled in 

private schools pay their tuition with private funds, there are some instances in which public 

funds may support a student’s tuition (e.g., through a Federal or State scholarship or scholarshiptype program or a State education savings account (ESA)). Regardless of the source of funds 

paying a private school student’s tuition, a student is eligible for equitable services under the 

ESEA if the student meets the eligibility requirements of the respective program.

Q-2. Are equitable services for children with disabilities under the Individuals with 

Disabilities Education Act (IDEA) affected by the ESSA?

No. The ESSA did not change the IDEA’s requirements on equitable services for children with 

disabilities. Therefore, the changes to the equitable service requirements under the ESEA, 

including new or changed provisions regarding the notice of allocation, consultation, the timeline 

for obligation of funds, the direct provision of equitable services by the SEA in cases of noncompliance, and the SEA’s use of an ombudsman do not apply to equitable services under the

IDEA. The Department’s Office of Non-Public Education maintains a website containing 

resources on the IDEA’s equitable service requirements, which are located at 

http://www2.ed.gov/about/offices/list/oii/nonpublic/programs2.html.
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VI. TRANSFERABILITY

R. OVERVIEW

Under the ESEA, SEAs and LEAs may transfer funds they receive by formula under certain 

programs to other programs to better address State and local needs. The ESSA amended the 

transferability authority by changing the programs from and to which an SEA or LEA may 

transfer funds and removing limits on the amount of funds that may be transferred. This 

guidance addresses those changes.

Except as provided in this guidance, the Guidance on the Transferability Authority [available at 

www2.ed.gov/programs/transferability/finalsummary04.doc] remains applicable.

S. TRANSFERS BY SEAS

S-1. Updates to programs from which funds may be transferred

Updated Programs from which an SEA May Transfer Funds Allocated for 

State-level Activities 

• Title II, Part A − Supporting effective instruction state grants

• Title IV, Part A − Student support and academic enrichment grants 

• Title IV, Part B − 21st Century Community Learning Centers

(ESEA section 5103(a)(1).)

An SEA may not transfer funds it receives under any other ESEA program.
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S-2. Updates to programs to which funds may be transferred

Updated Programs to which an SEA May Transfer Funds Allocated for Statelevel Activities

• Title I, Part A – Improving basic programs operated by LEAs 

• Title I, Part C – Education of migratory children 

• Title I, Part D – Prevention and intervention programs for children and 

youth who are neglected, delinquent, or at-risk 

• Title II, Part A − Supporting effective instruction state grants 

• Title III, Part A – State grants for English language acquisition and 

language enhancement

• Title IV, Part A − Student support and academic enrichment grants

• Title IV, Part B − 21st Century Community Learning Centers

• Title V, Part B − Rural education

(ESEA section 5103(a).)

T. TRANSFERS BY LEAS

T-1. Updates to programs from which an LEA may transfer funds

Updated Programs from which an LEA May Transfer Funds

• Title II, Part A – Supporting effective instruction state grants

• Title IV, Part A – Student support and academic enrichment grants

(ESEA section 5103(b)(2).)

An LEA may not transfer funds it receives under any other ESEA program.
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T-2. Updates to programs to which an LEA may transfer funds

Updated Programs to which an LEA May Transfer Funds

• Title I, Part A – Improving basic programs operated by LEAs

• Title I, Part C – Education of migratory children

• Title I, Part D − Prevention and intervention programs for children and 

youth who are neglected, delinquent, or at-risk 

• Title II, Part A − Supporting effective instruction state grants 

• Title III, Part A – State grants for English language acquisition and 

language enhancement

• Title IV, Part A − Student support and academic enrichment grants

• Title V, Part B – Rural education 

(ESEA section 5103(b).)

U. FREQUENTLY ASKED QUESTIONS

U-1. Is there a limit on the amount of funds for State-level activities an SEA may 

transfer?

No. An SEA may transfer all or a portion of the funds allocated for State-level activities under 

each of the programs listed under S-1 above.

U-2. May an SEA transfer administrative funds?

No. Under each of the programs listed under S-1 above, an SEA allocates funds separately for 

authorized State-level activities and for program administration. An SEA may transfer only the 

funds it allocates for authorized State-level activities; it may not transfer funds that it separately 

allocates for administration.

U-3. Is there a limit on the amount of funds an LEA may transfer?

No. An LEA may transfer all or a portion of funds it receives under each of the programs listed 

under T-1 above.

U-4. What are the responsibilities of an SEA or LEA for the provision of equitable 

services to private school children and teachers with respect to funds being 

transferred?

Excluding Title I, Part D and Title V, Part B, each program covered by the transferability 

authority is subject to the equitable services requirements under Title I or VIII, which may not be 

waived. (ESEA section 8401(c)(5).) Before an SEA or LEA may transfer funds from a program 

subject to equitable services requirements, it must engage in timely and meaningful consultation 
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with appropriate private school officials. (ESEA section 5103(e)(2).) With respect to the 

transferred funds, the SEA or LEA must provide private school students and teachers equitable 

services under the program(s) to which, and from which, the funds are transferred, based on the 

total amount of funds available to each program after the transfer.

U-5. May an SEA or LEA transfer only those funds that are to be used for equitable 

services to private school students or teachers?

No. An SEA or LEA may not transfer funds to a particular program solely to provide equitable 

services for private school students or teachers. Rather, an SEA or LEA, after consulting with 

appropriate private school officials, must provide equitable services to private school students 

and teachers based on the rules of each program and the total amount of funds available to each 

program after a transfer. (See ESEA section 5103(e).)