Nonpublic Participation

Memoranda

To: LEA Representatives

Title I Coordinators

Superintendents

From: John Moorse, Director Federal Programs

Re: Approving and Monitoring Third-Party Providers for Non-Public Schools

Date: May 31, 2013

Districts may provide services to eligible private school children either directly or through arrangements with another district or with a potential third-party provider. Should your district choose to contract with a third-party to provide services to non-public students, the following procedures must be adhered to:

The provider must be independent of the private school or of any religious organization; and

The contract must be under the control and supervision of the district. (The district executes the contract for the third-party provider.)

If your district disagrees with the views of private school officials on the provision of services through a contract, your district must provide in writing to the private school officials an analysis of the reasons why the district has chosen not to use the third-party provider.

After timely and meaningful consultation has taken place, the district must make the final decisions with respect to the services it will provide to eligible private school children.

The district is ultimately responsible for ensuring equitable services are provided to non-public school students.

Employee vs. Independent Contractor Status

Districts often have questions related to whether personnel utilized to provide services (such as third-party providers) are independent contractors or employees. Typically, independent contractors do not acquire tenure rights or any rights or benefits by way of Worker’s Compensation, Unemployment Compensation, medical and hospital insurance, sick and vacation leave, severance pay, pensions or any other right or benefit normally provided to district employees. In addition, independent contractors do not have taxes withheld from their compensation and they receive a Form 1099 confirming their compensation as opposed to the W-2 Form provided to employees.

If an employer exercises control and directs what an individual does and how he or she does it, the person must be considered an employee. If the individual selects the means, methods and manner of performing agreed upon services, the person can be considered an independent contractor.

The Internal Revenue Service provides additional information about the employee classification process and its effect. If you are unable to make a determination based upon reviewing available material, you are encouraged to consult an employment law specialist.

Additional information:

NCLB - ESEA Section 1120(b)(1)(G)-(H)

SEC. 1120. PARTICIPATION OF CHILDREN ENROLLED IN PRIVATE SCHOOLS.

(b) CONSULTATION-

(1) IN GENERAL- To ensure timely and meaningful consultation, a local educational agency shall consult with appropriate private school officials during the design and development of such agency's programs under this part, on issues such as —

(G) how and when the agency will make decisions about the delivery of services to such children, including a thorough consideration and analysis of the views of the private school officials on the provision of services through a contract with potential third-party providers; and

(H) how, if the agency disagrees with the views of the private school officials on the provision of services through a contract, the local educational agency will provide in writing to such private school officials an analysis of the reasons why the local educational agency has chosen not to use a contractor.

Local Education Agencies (LEA) Guidance for Title I--Improving the Academic Achievement of the Disadvantaged

ACTION: Final regulations.

Sec. 200.64 Factors for determining equitable participation of private school children.

(3)(i) The LEA may provide services to eligible private school children either directly or through arrangements with another LEA or a third-party provider.

(ii) If the LEA contracts with a third-party provider

(A) The provider must be independent of the private school and of any religious organization; and

(B) The contract must be under the control and supervision of the LEA.

(4) After timely and meaningful consultation under Sec. 200.63, the LEA must make the final decisions with respect to the services it will provide to eligible private school children.