Departmental Actions to Ensure Charter Schools’ Access
to Title I and IDEA Part B Funds

FINAL AUDIT REPORT

ED-OIG/A09-E0014

October 2004

Our mission is to promote the efficiency,U.S. Department of Education

effectiveness, and integrity of the Office of Inspector General

Department’s programs and operationsSacramento, California

Notice

Statements that managerial practices need improvements, as well as other conclusions and recommendations in this report, represent the opinions of the Office of Inspector General. Determinations of corrective action to be taken will be made by the appropriate

Department of Education officials.

In accordance with Freedom of Information Act (5 U.S.C. § 552), reports issued by the

Office of Inspector General are available to members of the press and general public

to the extent information contained therein is not subject to exemptions under the Act.

October 26, 2004

MEMORANDUM

TO:Dr. Eugene W. Hickok

Deputy Secretary

Lead Action Official

Raymond J. Simon

Assistant Secretary

Office of Elementary and Secondary Education

Troy R. Justesen, Ed.D.

Acting Deputy Assistant Secretary

Office of Special Education and Rehabilitative Services

FROM:Thomas A. Carter /s/

Deputy Inspector General

SUBJECT:Final Audit Report

Departmental Actions to Ensure Charter Schools’ Access to Title I and IDEA Part B Funds

Control Number ED-OIG/A09-E0014

Attached is the subject final audit report that covers the results of our review of Departmental actions to ensure charter schools’ access to Title I and IDEA Part B funds and references the results of our previous audits of charter schools’ access to those funds in Arizona, California, and New York during school year 2001-2002. An electronic copy has been provided to your Audit Liaison Officers. We received your comments concurring with the findings and recommendations in our draft report.

Corrective actions proposed (resolution phase) and implemented (closure phase) by your offices will be monitored and tracked through the Department’s Audit Accountability and Resolution Tracking System (AARTS). ED policy requires that you develop a final corrective action plan (CAP) for our review in the automated system within 30 days of the issuance of this report. The CAP should set forth the specific action items, and targeted completion dates, necessary to implement final corrective actions on the findings and recommendations contained in this final audit report.

In accordance with the Inspector General Act of 1978, as amended, the Office of Inspector General is required to report to Congress twice a year on the audits that remain unresolved after six months from the date of issuance.

In accordance with the Freedom of Information Act (5 U.S.C. § 552), reports issued by the Office of Inspector General are available to members of the press and general public to the extent information contained therein is not subject to exemptions in the Act.

We appreciate the cooperation given us during this review. If you have any questions, please call Gloria Pilotti at (916) 930-2399.

Attachment

electronic cc:Meredith Miller, Senior Policy Advisor, ODS

Jacqueline Jackson, (A) Director, Student Achievement and School Accountability, OESE

Charles Laster, Group Leader, Monitoring and Audit Group, OESE-SASA

JoLeta Reynolds, Office of Special Education Programs, OSERS

Ruth Ryder, OSERS-OSEP

C. Todd Jones, Audit Liaison Officer, ODS

Delores Warner, Audit Liaison Officer, OESE

Amy Egan, Auditor Liaison Officer, OSERS

Martin Benton, Auditor Liaison Officer, OSERS-OSEP

TABLE OF CONTENTS

Page

EXECUTIVE SUMMARY

BACKGROUND

AUDIT RESULTS

FINDING NO. 1 – The Department Should Identify the Cognizant Program Office(s) Responsible for Oversight of SEA Compliance
with the ESEA § 5206 Provisions

FINDING NO. 2 – The Department Should Issue Guidance on the Need for
SEA and LEA Notification Procedures for Expanding
Charter Schools

FINDING NO. 3 – The Department Should Enhance Title I and IDEA Part B Monitoring Procedures to Ensure New or Expanding
Charter School LEAs and Charter SchoolsReceive Proportionate and Timely Access to Federal Funds

FINDING NO. 4 – OSERS Should Consider Issuing Guidance on the
Application of the IDEA Part B Funding Formula for
Charter School LEAs that Did Not Have a Student with Disabilities Enrolled in the First Year of Operation

OBJECTIVES, SCOPE, AND METHODOLOGY

STATEMENT ON MANAGEMENT CONTROLS

ATTACHMENT 1 – List of OIG Audit Reports for Three States

ATTACHMENT 2 – Summary of OIG Findings for Three States

ATTACHMENT 3 – Department Comments on the Draft Report

ATTACHMENT 4 – Department Comments on the Draft Finding No. 4

ED-OIG/A09-E0014Page 1 of 28

EXECUTIVE SUMMARY

Section 5206 of the Elementary and Secondary Education Act of 1965 (ESEA), as amended by the No Child Left Behind Act of 2001, requires the Department and states to take measures to ensure that every charter school receives the Federal funds for which it is eligible. Departmental measures included the issuance of regulations and guidance to implement the ESEA § 5206 for new or expanding charter schools,[1] as well as other program-specific regulations and guidance addressing funding distribution formulas and the treatment of charter schools in general. We concluded that these actions help to ensure that state educational agencies (SEAs) and local educational agencies (LEAs) (1) provide new or expanding charter schools with timely and meaningful information about the Federal funds for which they may be eligible to receive under Title I, Part A (Title I) of the ESEA, and Part B of the Individuals with Disabilities Education Act of 1997 (IDEA Part B); and (2) allocate the proportionate amount of Title I and IDEA Part B funds to eligible charter schools, including new or expanding charter schools. However, we found that—

  • The Department has not established the program office(s) responsible for oversight of SEA compliance with the ESEA § 5206 provisions.
  • The regulations and guidance implementing the ESEA § 5206 do not address the need for SEAs and LEAs to provide charter schools with information on notification requirements for expanding charter schools or the definition of expansion.
  • Title I and IDEA Part B monitoring procedures do not address the ESEA § 5206 requirements.
  • The regulations and guidance implementing the IDEA Part B do not address the application of the funding formula for charter school LEAs that did not have a student with disabilities enrolled in the first year of operation.

We recommend that the Deputy Secretary identify the Departmental program office(s) responsible for oversight of SEA compliance with the ESEA § 5206 provisions, and direct the appropriate office(s) to provide guidance to SEAs on the need to establish written procedures on notification requirements and the definition of “significant expansion of enrollment.” We further recommend that the Assistant Secretary for Elementary and Secondary Education and the Assistant Secretary for Special Education and Rehabilitative Services modify their monitoring procedures to address SEA and LEA compliance with the ESEA § 5206. We also recommend that the Deputy Secretary ensure that program offices responsible for overseeing other covered Federal programs include the statutory provision in their monitoring procedures, and provide input for the 2005 Office of Management and Budget (OMB) Circular A-133 Compliance Supplement to add compliance requirements for the ESEA § 5206. In his comments on the draft report, the Deputy Secretary concurred with our recommendations. The Deputy Secretary’s comments on the draft report are summarized at the end of each finding and included in their entirety as ATTACHMENT 3.

We further recommend that the Assistant Secretary for Special Education and Rehabilitative Services consider issuing guidance on the application of the IDEA Part B funding formula for charter school LEAs that did not have a student with disabilities enrolled in their first year of operation. The Department concurred with this recommendation. The Assistant Secretary’s comments are summarized at the end of Finding No. 4 and included in their entirety as ATTACHMENT 4.[2]

BACKGROUND

Charter schools are public schools of choice that operate with freedom from many of the regulations that apply to traditional public schools. The Center for Education Reform reported that 41 states and the District of Columbia had state charter school laws in 2004, and that, as of January 2004, almost 3,000 charter schools were operating in 38 states across the country.[3] State charter school laws significantly influence the development of charter schools and vary from state to state. Charter schools also vary in their missions, programs, goals, students served, and ways to measure success.

Section 5206 of the ESEA requires the Department and states to take measures to ensure every charter school receives the Federal funds for which it is eligible no later than five months after the school first opens or expands enrollment.[4] The statute covers the Department’s major formula grant programs, including Title I and IDEA Part B.

The Title I program provides financial assistance through the SEAs to LEAs to improve the teaching and learning of low-achieving children in high-poverty schools. The Student Achievement and School Accountability (SASA) component within the Office of Elementary and Secondary Education (OESE) is responsible for the administration and oversight of this program. Nationwide, the Department allocated about $11.7 billion in Title I funds to states in fiscal year 2003.

The IDEA Part B § 611 provides grants to states for special education and related services for children with disabilities. The Office of Special Education Programs (OSEP) within the Office of Special Education and Rehabilitative Services (OSERS) administers and oversees this program. In fiscal year 2003, the Department allocated about $8.9 billion in IDEA Part B funds to states.

When allocating funds under Title I, IDEA Part B, and other Federal programs, states and LEAs must treat charter schools in a manner consistent with the applicable Federal statutes and regulations, and ensure that charter schools receive the proportionate allocations for which they are eligible under each program. In a state that considers charter schools to be LEAs, the SEA must treat those charter schools like other LEAs in the state when making eligibility determinations and allocating funds under Federal programs. Where a state considers charter schools to be public schools within an LEA, the LEA must treat its charter schools like other public schools within the LEA when determining eligibility and making within-district allocations. A charter school cannot be an LEA and a public school within an LEA under the same Federal definition of LEA. However, if the Federal definition of LEA differs between programs, as it does in the ESEA and the IDEA Part B, a charter school could be treated as an LEA for purposes of one program and a public school within an LEA under the other program.

The Office of Innovation and Improvement (OII) oversees Departmental activities that support alternatives in education, including charter schools, and coordinates with other offices on issues that impact charter schools. The OII is responsible for the administration of the Charter Schools Program and the Credit Enhancement for Charter School Facilities program, which are both discretionary grant programs authorized under Title V, Part B, Subparts 1 and 2, of the ESEA, to help charter schools with their start-up and facilities costs.

AUDIT RESULTS

The purpose of the audit was to determine whether the Department has taken sufficient action to ensure that states and LEAs within the states (1) provide new or expanding charter schools with timely and meaningful information about the Title I and IDEA Part B funds for which these schools may be eligible and (2) have management controls that ensure charter schools, including new or expanding charter schools, are allocated the proportionate amount of Title I and IDEA Part B funds for which these schools are eligible. We concluded that the Department has taken appropriate action to ensure that SEAs and LEAs provide new charter schools with timely and meaningful information about Federal funding under the Title I and IDEA Part B programs, and charter schools in general with their equitable share of Federal funds in a manner consistent with the applicable statutes and regulations. However, the Department should take additional steps to better assure that new or expanding charter schools can access those funds in accordance with the ESEA § 5206 statute and regulations. Specifically, we concluded that—

  • The Department should designate the cognizant program office(s) responsible for oversight of SEA compliance with the ESEA § 5206 provisions;
  • The Department should issue guidance on the need for SEAs and LEAs to provide charter schools with information on notification procedures for expanding charter schools; and
  • The Department should enhance Title I and IDEA Part B monitoring procedures to ensure new or expanding charter schools receive proportionate and timely access to Federal funds.
  • OSERS should consider issuing guidance on the application of the IDEA Part B funding formula for charter school LEAs that did not have a student with disabilities enrolled in the first year of operation.

The need for the above Departmental actions are based on weaknesses identified in the OIG audits of charter schools’ access to Title I and IDEA Part B funds in three States. Our audit reports from the three State audits are listed in ATTACHMENT 1 and the findings are summarized in ATTACHMENT 2.

FINDING NO. 1 – The Department Should Identify the Cognizant Program Office(s) Responsible for Oversight of SEA Compliance with the ESEA § 5206 Provisions

The ESEA § 5206 requires the Department and states to take measures to ensure that every charter school receives the Federal formula funds for which it is eligible within five months of the date the charter school opens for the first time or expands its enrollment. After the statute was enacted in 1998, program offices from across the Department collaborated to develop the implementing regulations at 34 C.F.R. § § 76.785 through 76.799, as well as nonregulatory guidance entitled, How Does a State or Local Educational Agency Allocate Funds to Charter Schools that Are Opening for the First Time or Significantly Expanding their Enrollment? OESE issued the regulations in 1999 and the nonregulatory guidance in 2000.[5]

The Department has not established the program office(s) responsible for oversight of SEA compliance with the ESEA § 5206 provisions. The two discretionary grant programs that are targeted specifically to charter schools and overseen by OII are not subject to the statutory provision. The OII program director for the Charter Schools Program told us that OII relied on the respective Departmental program offices to oversee SEA compliance with the ESEA § 5206 when distributing Federal program funds administered by their offices. OESE-SASA and OSERS-OSEP respectively oversee the Title I and IDEA Part B formula grant programs, which are both covered under the ESEA § 5206. We found that neither OESE nor OSERS systematically oversaw SEA implementation of the ESEA § 5206 to ensure that new or expanding charter schools receive the Title I and IDEA Part B funds for which they are eligible.

While we reviewed only the Title I and IDEA Part B programs, the ESEA § 5206 also covers numerous other Federal formula grant programs[6] that could be adversely affected by the lack of Departmental oversight. Designating oversight responsibilities for the ESEA § 5206 provisions would provide the Department additional assurance that SEAs have taken the appropriate measures to ensure every charter school receives the Federal funds for which it is eligible in accordance with applicable laws and regulations.

Recommendation

1.1The Deputy Secretary should identify the Departmental program office(s) responsible for oversight of SEA compliance with the ESEA § 5206 provisions, such as OII, or one or more other offices. The designated office(s) should ensure that the other offices responsible for the programs covered by the statute are aware of the ESEA § 5206 and incorporateits provisions into their programs, as appropriate.

Department Comments

The Office of Deputy Secretary (ODS) agreed to inform the program offices that provide formula grants to states of their responsibilities for ensuring compliance with the ESEA § 5206, and to coordinate with those offices to ensure that they take the appropriate steps. The Deputy Secretary stated that OESE will work closely with ODS and OII to coordinate responsibility for ensuring that SEAs and LEAs provide eligible charter schools the Federal funds for which they are entitled within the prescribed timeframes. Additionally, OSERS will work closely with ODS, OESE, and other offices to ensure compliance with the IDEA and other programs administered by OSERS.

FINDING NO. 2 – The Department Should Issue Guidance on the Need for SEA and LEA Notification Procedures for Expanding Charter Schools

The regulations implementing the ESEA § 5206 address the responsibilities of the charter school, and the SEA or LEA. To trigger the statutory requirements, either a charter school or its charter authorizer must provide written notification of the charter school’s opening or expansion date to the SEA or LEA, depending on which is the funding entity. After receiving notice, the SEA or LEA must provide the charter school with timely and meaningful information about each Federal program under which the charter school might be eligible to apply. The regulations state—

At least 120 days before the date a charter school LEA is scheduled to open or significantly expand its enrollment, the charter school LEA or its authorized public chartering agency must provide its SEA with wrttien notification of that date.

34 C.F.R. § 76.788(a)

Upon receiving notice . . . of the date a charter school LEA is scheduled to open or significantly expand its enrollment, an SEA must provide the charter school LEA with timely and meaningful information about each covered program in which the charter school LEA may be eligible to participate . . .