Office of Accountability

Memo to the Field from Ira Schwartz, Interim Director for School Improvement & Community Services-NYC

School Improvement & Community Services-NYC
55 Hanson Place, Room 400
Brooklyn, New York  11217


District Superintendents
Superintendents of Public Schools
Charter Schools Administrators
Title I Coordinators
From: Ira Schwartz
Date: November 25, 2009
Subject: American Recovery and Reinvestment Act (ARRA) and Title I, Part A Waivers

In July 2009, Education Secretary Arne Duncan issued Non-Regulatory Guidance on Title I, Part A Waivers intended to provide comprehensive information on how states may request waivers of specific statutory and regulatory provisions of Title I, Part A of the Elementary and Secondary Education Act of 1965 (ESEA) of 1965.

After a careful review of the Non-Regulatory Guidance on Title I, Part A Waivers and discussion with our statewide Committee of Practitioners, the Department has decided to request the following waivers.  Presented below is an overview of each of the waivers taken directly from the Guidance.  The plan is to submit to the United States Education Department (USED) a blanket waiver request on behalf of all New York State LEAs:

Waive the Following Requirements of Title I, Part A Statutory and Regulatory Requirements Related to SES and Public School Choice:

  • 14-day notice of public school choice.  This provision requires an LEA to provide parents of eligible students with notice of their public school choice options at least 14 days before the start of the school year (34 C.F.R. § 200.37(b)(4)(iv)). Please note that the 14 day notice waiver request will apply only to the 2009-10 school year.
  • Approval of identified LEAs and schools as SES providers.  This provision prohibits an SEA from approving as a provider of SES a school identified for improvement, corrective action, or restructuring or an LEA identified for improvement or corrective action (34 C.F.R. § 200.47(b)(1)(iv)(A), (B)). 

Waive the Following Requirements Related to Title I, Part A ARRA Funds:

 Each waiver request pertains only to the ARRA portion of the 2009-10 Title I allocations:

  • An LEA’s obligation to spend an amount equal to at least 20 percent of its FY 2009 Title I, Part A, Subpart 2 allocation on transportation for public school choice and on SES (20 percent obligation) (ESEA section 1116(b)(10); 34 C.F.R. § 200.48).
  • The responsibility of a school in improvement to spend 10 percent of its Title I, Part A funds on professional development (ESEA section 1116(b)(3)(A)(iii); 34 C.F.R. § 200.41(c)(5)).
  • The responsibility of an LEA in improvement to spend 10 percent of its FY 2009 Title I, Part A, Subpart 2 allocation on professional development (ESEA section 1116(c)(7)(A)(iii); 34 C.F.R. § 200.52(a)(3)(iii)).
  • The responsibility of an LEA to calculate the per-pupil amount for SES based on its FY 2009 Title I, Part A, Subpart 2 allocation (per-pupil amount for SES) (ESEA section 1116(e)(6); 34 C.F.R. § 200.48(c)).
  • The prohibition on an SEA’s ability to grant to its LEAs waivers of the carryover limitation more than once every three years (ESEA section 1127(b)).

This last waiver request is the result of the timing of the release of ARRA funds.  Most LEAs will exceed the 15 percent carryover limitation even if they were to exhaust their entire regular Title I allocation plus 2008-09 carryover by the end of the 2009-10 project year. 

In order to assist LEAs to plan for the use of these ARRA funds during the 27 month life of these funds, the Department will request the USED to waive the provision for the use of 2009-10 carryover by the end of September 30, 2011, including the need for LEAs to request this waiver in writing.

The “set-aside” requirements referenced in the Guidance are the twenty percent obligation for public school choice-related transportation and SES and the ten percent professional development obligations listed above.

Non Waivable Items:

Note that there are both statutory and regulatory requirements that the Secretary may not waive under section 9401. They are as follow:

  • Allocation or distribution of funds to States, LEAs, or other recipients of ESEA funds;
  • Comparability of services;
  • Use of Federal funds to supplement, not supplant, non-Federal funds;
  • Equitable participation of private school students and teachers;
  • Parental participation and involvement;
  • Applicable civil rights requirements;
  • Requirements for a charter school under subpart 1 of Part B of Title V of the ESEA;
  • The prohibitions regarding: State aid in section 9522 of the ESEA, use of funds for religious worship or instruction in section 9505 of the ESEA, and activities in section 9526 of the ESEA; and
  • Selection of school attendance areas or schools under section 1113(a) and (b) of the ESEA, except that the Secretary may grant a waiver to allow a school attendance area or school to participate in Title I, Part A activities if the percentage of children from low-income families in the school attendance area or who attend the school is not more than 10 percentage points below the lowest percentage of those children for any school attendance area or school of the LEA that meets the requirements of section 1113(a) and (b). 

Accordingly, SED is not seeking waviers for any of the above. 

Notice and Comments Requirements:

As a condition of applying for these waivers, an entity must demonstrate that it has complied with the notice-and-comment requirements for a waiver request. In the case of a waiver request submitted by an SEA, prior to submitting its request, the SEA must provide all interested LEAs in the State with notice and a reasonable opportunity to comment on the request (ESEA section 9401(b)(3)(A)(i)).  The SEA must submit all comments it receives from those LEAs to the Secretary along with its waiver request (ESEA section 9401(b)(3)(A)(ii)).  The Secretary will consider these comments when determining whether to grant the waiver request.  The SEA must also provide notice and information regarding the waiver request to the public in the manner in which the SEA customarily provides such notice and information to the public (ESEA section 9401(b)(3)(A)(iii)), such as through a public website.

Attached to this memo is a copy of the Non-Regulatory Guidance on Title I, Part A Waivers as well as a copy of the April 1, 2009 letter to Chief State School Officers from Secretary Duncan regarding Title I regulations that may be of assistance to you in your review of the waiver options. Copies of the April 1, 2009 letter and the Non-Regulatory Guidance on Title I, Part A Waivers are also available on-line at the following web addresses:

April 1, 2009 Letter:
Waiver Guidance:

As required by Section 9401 of the ESEA, the purpose of this memo is to provide all LEAs with notice of and opportunity to comment on the proposed waivers to be requested. Comments may be submitted via email, fax, or mail (postmarked) no later than December 11, 2009. Email submissions should be addressed to the following email: T1ARRA@MAIL.NYSED.GOV. All other submissions should be addressed to the attention of:

Roberto Reyes, Director
State Title I School and Community Services
Education Building Annex, Room 365
Albany, NY 12234
Fax: (518) 486-1762

Thank you for your consideration.

c:         Roberto Reyes
            Sandra Norfleet

Last Updated: March 20, 2014