LEA Conditions on Providers
August 26, 2004
Dear Chief State School Officer:
We are writing today on issues related to the provision of supplemental educational services under Title I of the Elementary and Secondary Education Act, as reauthorized by the No Child Left Behind Act. As you know, each local educational agency (LEA) with Title I schools identified as in need of improvement for two years or more (or identified for corrective action or restructuring) must provide to children from low-income families attending those schools the opportunity to receive supplemental educational services. Parents of those students may elect to have their child receive services from any provider approved by the State to offer services in the school district or area where the child lives. Supplemental educational services can provide critical support needed to help students achieve to grade-level standards and to enable schools and LEAs make adequate yearly progress under No Child Left Behind.
This letter responds to recent inquiries and information the Department has received regarding LEAs' imposition of conditions or requirements for the provision of supplemental educational services that go beyond those set forth by States as part of their approval processes. This letter supplements the information in the Department's nonregulatory guidance on supplemental educational services, which is available at http://www.ed.gov/policy/elsec/guid/suppsvcsguid.doc MS Word (161K).
Under the Title I statute, it is the responsibility of the SEA to develop and apply objective criteria for approval of potential providers based, among other things, on a demonstrated record of effectiveness, and to maintain an approved list of providers. The LEA then enters into agreements with approved providers selected by parents. Conditions relating to criteria for approval of a provider are the responsibility of the SEA and an LEA may not alter, or add to, those criteria. However, an LEA may impose reasonable administrative and operational requirements through its agreements with providers that are consistent with requirements imposed generally on the LEA's contractors and that do not limit educational options for parents.
We understand that a number of LEAs have imposed, or are considering conditions related to issues of program design. They may, for example, be requiring that providers offer a certain number of hours of services in order to receive the statutory per-child amount for services, that providers employ only State-certified teachers as tutors, or that they use one-to-one tutoring as their sole delivery mechanism. These types of requirements -- which relate to whether a provider has an effective educational program -- may not be imposed by LEAs, because they would undermine the State's authority to set criteria for approval of providers as having effective programs and to determine which providers meet those standards. In addition, these types of requirements may create a "one-size-fits-all" model for services that does not effectively take into consideration the varied needs of students, and undermine the parents' opportunity to select the most appropriate provider and services for their child. Finally, this type of local intervention in program design is not provided for in the statute or regulations. For these reasons, these local program design requirements are generally not allowed, and we urge your agencies to ensure that LEAs are not imposing them.
On the other hand, LEAs may impose reasonable operational and administrative requirements through their agreements with providers. For instance, an LEA may require that all employees of a provider undergo background checks (if the LEA requires this for all entities with whom it enters into contracts for direct services to students). Or an LEA might require that each provider carry a reasonable amount of liability insurance, again, if that is what it requires from other contractors that serve its students. These types of conditions are allowable, so long as they are reasonable, do not subject supplemental service providers to more stringent requirements than apply to other contractors of the LEA, and do not have the effect of inappropriately limiting the educational options for parents.
Similarly, LEAs may include, in their contracts with providers, administrative provisions dealing with such issues as the fees charged to providers for the use of school facilities, the frequency of payments to providers, and the issue of whether payments will be based in part on student attendance. Again, we acknowledge that some conditions and provisions in this area are acceptable for the proper and effective implementation of supplemental services in an LEA, but the important thing is that they be reasonable, not be more stringent than requirements applied to other contractors, and not have the effect of limiting the educational options available to parents. We urge State educational agencies to work with their LEAs to ensure that the practices they employ meet that test.
We hope that the above guidance is useful to you. Please make it known to the LEAs in your State. We welcome your comments on this area of services. We will review any concerns and may issue further clarifications, as appropriate. We thank you for the work you are doing to ensure that all eligible children have access to high-quality supplemental educational services.
Assistant Secretary for Elementary and Secondary Education
Nina Shokraii Rees
Deputy Under Secretary for Innovation and Improvement