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Supplement and Not Supplant Rule-Making

By Patrick Chapman, Executive Director, Federal Programs
Thursday, March 17, 2016 - 3:21pm

The Secretary has indicated that negotiated rule-making for ESSA will include a focus on the supplement and not supplant provisions.  The requirement that ESSA funds supplement and not supplant state and local funds is intended to ensure that federal resources are used to provide additional educational resources and supports to students at risk instead of just being used to make up for state and local budget shortfalls.  For the most part, ESSA retains the supplement and not supplant language that has always been a part of the Elementary and Secondary Education Act.  However, the following sections under Title I, Part A are new and are drawing quite a bit of attention as they seem to move the focus away from individual costs as supplementary to a more comprehensive question regarding the entire Title I program.

“(1) IN GENERAL.—A State educational agency or local educational agency shall use Federal funds received under this part only to supplement the funds that would, in the absence of such Federal funds, be made available from State and local sources for the education of students participating in programs assisted under this part, and not to supplant such funds.

“(2) COMPLIANCE.—To demonstrate compliance with paragraph (1), a local educational agency shall demonstrate that the methodology used to allocate State and local funds to each school receiving assistance under this part ensures that such school receives all of the State and local funds it would otherwise receive if it were not receiving assistance under this part.

“(3) SPECIAL RULE.—No local educational agency shall be required to—

“(A) identify that an individual cost or service supported under this part is supplemental; or

“(B) provide services under this part through a particular instructional method or in a particular instructional setting in order to demonstrate such agency’s compliance with paragraph (1).

The new language seems to affirm that ESSA Title I funds are to be used in supplementary fashion while opening the door for local flexibility.  It is important to note that supplement and not supplant provisions under Titles II, III, and IV do not contain this new language.  CDE will be tracking the comments and recommendations of the negotiators in this area and would like to make sure that the voices of Colorado school districts and BOCES are heard as part of the process. Let us know your thoughts and concerns with regard to supplement and not supplant.

In particular:

What does it mean to ensure that a Title I school receives all of the state and local funds it would otherwise receive if it were not receiving funds under Title I?

What does it mean to have a methodology for allocating state and local funds in a district that allocates resources such as staff positions instead of dollars?

Should regulations implementing this statutory provision create certain allowances for flexibility such as for districts with small schools or allow for different allocations among grade spans?

Typically, we believe the fewer new regulations, the better – is that the case with these provisions?

What enforcement action must a state take if it finds that a district has not complied with this requirement?