The NDTAC Technical Assistance (TA) Team supports all coordinators and provides training and resources to answer your TA requests. Below are some answers to common questions.

1. QUESTION: Do you have any suggestions for coordinators that need assistance with the Annual Count?

RESPONSE: NDTAC recommends The Annual Count Toolkit that will provide you with information for Count questions and guidance. As you review the Count information and as questions arise- please send your questions to ED utilizing the annual count inbox NorD-DataFY2021@ed.gov and cc TitleI-D@ed.gov .  

2. QUESTION: Can you provide suggestions for At-Risk education programming during COVID? 

RESPONSE: One suggestion is a virtual at-risk program series. This could include wellness webinars such as coping, time management, and tackling Zoom fatigue during COVID-19. NDTAC also has resources such as our overview of at-risks programs that may be helpful with generating ideas.

3. QUESTION: What qualifies new programs for Title I-D funding?

RESPONSE: The most important guideline for eligibility is that the facility/program meet the statutory definition of an N or D facility.

• Local institution for Neglected children: “A public or private residential facility, other than a foster home, that is operated for the care of children who have been committed to the institution or voluntarily placed in the institution under applicable State law, due to abandonment, neglect, or death of their parents or guardians” (section 1432(4)(A) of the ESEA) (emphasis added).
• Local institution for Delinquent children: “A public or private residential facility for the care of children who have been adjudicated to be delinquent or in need of supervision” (section 1432(4)(B) of the ESEA) (emphasis added). Also includes children in local adult correctional institutions as defined in section 1432(1).

Please note that SEAs and LEAs have considerable flexibility and discretion in determining which students may be served with grant funds available for activities under Subpart 2 of Title I, Part D. Although Subpart 2 funds are generated only by local delinquent counts, Subpart 2 funds can also be used to provide services to neglected students, as well as to students enrolled in the LEA who meet the “at-risk” definition (and who are not part of the count).

• Definition of “at-risk”- Section 1432(2): “A school-aged individual who is at-risk of academic failure, dependency adjudication, or delinquency adjudication, has a drug or alcohol problem, is pregnant or is a parent, has come into contact with the juvenile justice system or child welfare system in the past, is at least 1 year behind the expected grade level for the age of the individual, is an English learner, is a gang member, has dropped out of school in the past, or has a high absenteeism rate at school.”

4. QUESTION: How will a decrease in N & D counts due to the pandemic impact my State’s funding?

RESPONSE: The U.S. Department of Education (ED) has received inquiries from State educational agencies (SEAs) regarding the attached January 14, 2021, notification of fiscal year (FY) 2021 (school year 2021-2022) preliminary allocations for Title I, Part D (Programs for Children and Youth who are Neglected, Delinquent, or At-Risk) of the Elementary and Secondary Education Act of 1965. The inquiries have pertained primarily to allocations for the Title I, Part D, Subpart 1 (Subpart 1) State agency program.

ED will issue final FY 2021 allocations in June, which will be the basis for the July 1, 2021 grant award.

• When ED calculates final FY 2021 Subpart 1 allocations in June to determine the July 1 award amounts, the final FY 2021 allocations will differ from the preliminary FY 2020 allocations because ED will use the calendar year 2020 State agency counts that SEAs are currently submitting in place of the calendar year 2019 counts that ED used for the preliminary FY 2021 allocations.
• When ED calculates final Title I, Part A allocations in June to determine the July 1 Title I, Part A award amounts, it will use the October 2020 counts of children in locally operated institutions for delinquent children that SEAs are currently submitting to ED in place of the October 2019 counts that ED used for the preliminary allocations.

Please send any questions about the preliminary FY 2021 allocations to Titlei-d@ed.gov, Elizabeth Witt (Elizabeth.Witt@ed.gov), and Todd Stephenson (Todd.Stephenson@ed.gov).

5. QUESTION: Under Title I-D, it only states private institutions and gives no specificity on whether for-profit institutions are eligible for funding. Can you provide some clarity?

RESPONSE: The Title I, Part D statutes defines both neglected and delinquent institutions as ‘public or private’ facilities and private facilities throughout the country may be for-profit. In section 1432(4)(a) and (b), the definitions indicate that institutions for delinquent children and youth may be private, although a state statute or regulation could be more restrictive. As neither the Federal statute nor regulations further defines “private,” both for-profit and not-for-profit private facilities may participate in Title I, Part D programs.

The subgrantee, whether a State agency operating a Subpart 1 program or an LEA operating a Subpart 2 program, is responsible for ensuring that facilities with which it works, whether for-profit or not, meet all Title I, Part D requirements (via monitoring, program evaluation, etc.). For Subpart 2, the statute requires LEAs to have formal agreements with juvenile facilities per Subpart 2, Section 1423(2).

6. QUESTION: Are there any ideas for how to effectively conduct a desk audit, especially during COVID?

RESPONSE: For desk audits, much of the information you will collect, and use will not be very different from conducting on-site monitoring. Here are some additional things to think through for desk audits, assuming that they will happen virtually.

Communication: The important thing here is to communicate to subgrantees how you plan to collect the information for monitoring. I know you’re working on a plan to upload your monitoring documents online to facilitate information and data collection and I think this will make follow-up easier.

Timing: It may be helpful to ask subgrantees to submit monitoring materials 3-6 weeks in advance so that you’ll have ample time to review and follow-up before any virtual monitoring visits. Unlike an in-person monitoring visit that may happen within a day, I believe that a virtual monitoring might span longer than a day. Distributing a timeline to the subgrantees before the monitoring begins helps everyone to adjust their schedule accordingly. You can include dates and times when you’d like to interview different staff or administrators, and these can be done virtually or over the phone. I know it would be impossible to conduct classroom observations or interviews with youth in the facilities so this would be an element that would be missing in this case.

Coordinating and facilitating the meeting: Use video conferencing whenever possible with the possibility for screen sharing so you can view documents together when needed; all parties should test that they have access to the platform before the audit. I think co-developing the agenda would also be helpful. Audits are also a time to reconnect with grantees and answer questions they may have so it’s good to build in time for that along with the required monitoring activities.

Losing the in-person component is pretty challenging but if you are able to answer the key questions when it comes to compliance and performance monitoring, a desk audit should be able to produce the same result as an in-person visit.

7. QUESTION: Does Title I, Part D, Subpart 1 and Subpart 2 have to follow Title I, Part A Requirements for Paraprofessionals? If not, what are the requirements that apply to paraprofessionals, if any, under Title I, Part D?

RESPONSE: The requirements regarding the qualifications and certification of paraprofessionals under sections 1111(g)(2)(M) and 1112(c)(6) of the ESEA do not apply to programs operated under Title I, Part D. Rather, these requirements apply only to programs supported by Title I, Part A. Please note, however, that this includes Title I, Part A programs operated in neglected and delinquent facilities. For example, a local educational agency (LEA) that reserves Title I, Part A funds to provide services in local institutions for neglected and delinquent students would need to meet these requirements.

There are no similar requirements regarding paraprofessional qualifications and certification under Title I, Part D. However, per Section H-1 of the nonregulatory guidance (see attached), a State agency or LEA may use its Title I, Part D funds for professional development training for teachers and other staff members, including paraprofessionals, who provide Title I, Part D services.

8. QUESTION: Does the definition of institutions for neglected children and youth include children that are placed in the institution by a parent and paid for through private insurance? What does “committed” mean?

RESPONSE: The ESEA defines an institution for neglected children as, “a public or private residential facility, other than a foster home, that is operated for the care of children who have been committed to the institution or voluntarily placed in the institution under applicable State law, due to abandonment, neglect, or death of their parents or guardians.” The term “committed” would include children whose parents have placed them in the residential facility.

9. QUESTION: NDTAC forwarded some questions they had received from Utah about how States are handling the balance between schools’ need to know information about students who are returning to local schools from juvenile justice facilities and the returning students’ right to privacy and a fresh start. Utah was interested in knowing what other States do to address this balance, as well as what State laws and policies affect the approaches that States take in addressing this balance, or lack thereof.

RESPONSE: The Department does not generally comment on State law or regulations, but I have been investigating if there are any Federal education requirements that might apply to the sharing of such records. I have discussed this question with the Department’s data privacy office, as well as with the Office of the General Counsel, including both our Title I, Part D program attorneys and OGC attorneys with expertise in FERPA. The short answer to my initial question is that, for the most part, Federal education requirements about sharing of student’s records don’t apply to juvenile justice facilities. As a result, State rules and regulations about sharing of records are going to be what Utah and other States need to follow in the types of situations that Utah raised.
The main Federal regulations that cover privacy and disclosure of student information come out of the Federal Education Rights and Privacy Act (FERPA). You can find the FERPA regulations in 34 CFR §99, and the Department also has a series of FERPA FAQs on its FERPA website.
FERPA regulations apply to “educational agencies and institutions.” As a result, they apply to juvenile correctional facilities only if these facilities are themselves LEAs or are schools in LEAs. As you are probably aware, in most States, the SAs that provide Subpart 1 services and the facilities they work with are not considered to be LEAs, and as such, FERPA requirements don’t apply to them. There are some States where the SEA treats an SA as an LEA, largely so that the SEA can make grants to the agencies for other Federal education programs—I do not know if this is the case in Utah or not, but if Utah does consider its SAs to be LEAs, then FERPA might apply. Utah’s original question was about Subpart 1 since Utah does not receive Subpart 2 funds, but for the sake of completeness, if a similar question were to come up in the context of Subpart 2, the same principle would apply. Locally-operated delinquent facilities are not LEAs, although in some cases, the facility might be a school in the LEA receiving the Subpart 2 grant—in such a case, FERPA requirements would apply to the facility in the same way they would with any other public school operated by the LEA, but in most cases, FERPA doesn’t apply to locally operated delinquent facilities.
When juvenile correctional facilities are neither LEAs nor schools in LEAs, meaning FERPA requirements do not apply to them, there are no Federal education requirements that would address sharing the types of student information that Murray originally asked about.
Regarding the small number of juvenile justice facilities to which FERPA applies (i.e., those that are covered as “educational agencies and institutions”), here’s what OGC has to say about FERPA requirements:
FERPA does not prevent these institutions from disclosing or redisclosing any “education records,” or PII contained therein, to LEAs in which former students seek or intend to enroll or are enrolled for purposes related to the student’s enrollment, or from disclosing disciplinary action taken against the student for conduct that posed a significant risk to the safety or well-being of that student or other members of the school community to that LEA’s school officials who have legitimate educational interests in the behavior of the student. In other words, FERPA would permit but not require a juvenile justice facility that is covered as an educational agency or institution under FERPA to non-consensually disclose or redisclose a student’s education records, or PII contained therein, to: officials of another school, school system, or institution of postsecondary education where the student seeks or intend to enroll, or where the student is already enrolled so long as the disclosure is for purposes related to the student’s enrollment or transfer, subject to certain conditions, and would further not prevent such JJ facility from disclosing disciplinary action taken against the student for conduct that posed a significant risk to the safety or well-being of that student or other members of the school community to that LEAs’ school officials who have legitimate educational interests in the behavior of the student. 34 CFR 99.31(a)(2), 99.34, and 99.36(b)(3); 20 U.S.C. 1232g(h).
Also note that FERPA does not cover records that are not maintained by educational agencies or institutions or parties acting for them in maintaining such records, such as would be the case generally for criminal records (though it is possible that an educational agency or institution could maintain a student’s criminal records in which case they would be covered by FERPA). There are also some exceptions to the definition of “Education records,” one of which includes records that are maintained by an educational agency’s or institution’s law enforcement unit.
So, in short, FERPA does not apply at all to juvenile justice facilities; in facilities not subject to FERPA, there is no Federal education barrier to sharing these records. Even when FERPA does apply to juvenile justice facilities that are considered to be “educational agencies,” FERPA likely does not prohibit sharing the records in question. In conclusion, there is no Federal education rule or requirement that either requires or prevents sharing of the kinds of records Utah asked about.
As a result, State staff really need to pay attention to State-level rules and requirements that affect which student disciplinary and/or criminal records can be shared, and with whom. These State requirements are not something on which either the Department or NDTAC should offer opinions, as State record release requirements are outside the scope of the I-D program.
That said, I did find this 2014 report from the Juvenile Law Center. One issue it covers is State policies on when records can be released to schools (see pages 16-17)—at least in 2014, the policies varied pretty widely from State to State. Given that this report is now 7 years old, it may not be an accurate reflection of the current state of events—I couldn’t find anything more recent. I also don’t know anything about the Juvenile Law Center, so I have no opinion on how reputable the source is (NDTAC partners may have insight on this issue), but given these caveats, this report might be a resource of interest to States as a starting point in looking at their own State policies and requirements about when records may be disclosed.