Also on March 19, the Department of Education released revised guidance for the first round of
EANS. EANS is short for the Emergency Assistance to Non-Public Schools Program, which was passed by Congress in December 2020 as part of broader COVID relief legislation. (A second round of EANS was passed in March, states will roll out that EANS II program at a later date.)
Of note:
C-14. Must an SEA establish criteria to prioritize non-public schools in approving applications for services or assistance under the EANS program?
Yes. Under section 312(d)(3)(C) of the CRRSA Act, an SEA must prioritize services or assistance to nonpublic schools that enroll low-income students and are most impacted by COVID-19. An SEA must consider both factors. In other words, the SEA must have criteria that differentiate among non-public schools based on their enrollment of low-income students and the severity of the impact of COVID-19 on the school. (See C-11 and C-15). The SEA might weight the factors or weight non-public schools based on their strength of meeting the SEA’s criteria. An SEA may choose to serve only non-public schools that meet its criteria; or, depending on the EANS funds available and the number of applications it receives, an SEA may also provide services or assistance to non-public schools that the SEA has not prioritized, provided the priority schools receive preference in the amount of services or assistance provided. (See C15). However an SEA proceeds, it should make its criteria clear to non-public schools so they know the basis on which their application will be evaluated and apply those criteria consistently.
C-15. What factors might an SEA consider in prioritizing non-public schools to receive services or assistance under the EANS program?
An SEA generally has flexibility with regard to how it prioritizes non-public schools to receive services or assistance under the EANS program; however, the statute requires an SEA to target low-income schools and schools most impacted by COVID-19. With respect to poverty, an SEA might target those non-public schools that enroll significant numbers or percentages of low-income students (e.g., whose family income does not exceed 185 percent of the 2020 Federal poverty guidelines) or meet a minimum threshold of low-income students. The SEA might also consider poverty bands, prioritizing schools in the highest bands first. Factors that an SEA might consider in determining non-public schools that are most impacted by COVID-19 include but are not limited to: (1) rate of community infection; (2) number of COVID-19-related deaths per capita; (3) loss of tuition revenue due to decrease in enrollment; (4) lack of capacity to provide remote learning due to insufficient technological support, and (5) data documenting the extent of learning loss or the social, emotional, or mental health impact attributable to the disruption of instruction caused by COVID-19.
An SEA has flexibility to consider other factors in prioritizing non-public schools. For example, an SEA might consider the extent to which a non-public school serves low-income children with unmet needs and did not receive equitable services under a CARES Act program. An SEA might also take information regarding receipt or forgiveness of a PPP loan prior to December 27, 2020, into account in prioritizing services or assistance for non-public schools.
D-3. Are services for sanitizing, disinfecting, and cleaning school facilities an allowable use of EANS funds?
No. Section 312(d)(4)(A) specifically authorizes a non-public school to request “supplies to sanitize, disinfect, and clean school facilities.” This authority does not extend to contracting with a vendor to perform the cleaning. If a non-public school has contracted for cleaning and seeks reimbursement, an SEA may reimburse it for the cost of supplies but not for the full cleaning contract.
D-4. May preschool children receive services or assistance under the EANS program?
If preschool children are enrolled in an eligible non-public elementary school that receives services or assistance under the EANS program, preschool children and their teachers may receive allowable services. (See C-1 and C-3 through C-5 for which non-public schools are eligible). However, unless State law considers preschool education to be part of elementary education, preschool children enrolled in a stand-alone non-public preschool may not receive services or assistance under the EANS program.
D-5. Must an SEA provide the ability for non-public schools to request any of the allowable services or assistance, or may the SEA choose which services or assistance it will offer to non-public schools?
Section 312(d)(4) of the CRRSA Act permits a non-public school receiving services or assistance under the EANS program to use those services or assistance to address educational disruptions resulting from the COVID-19 emergency for any of the activities listed in paragraphs (A) through (M) of that section. An SEA may not restrict a non-public school’s ability to request any authorized services or assistance. The SEA may, however, need to negotiate the services or assistance it will provide based on the State’s procurement requirements, the amount of EANS funds available for providing such services or assistance to the school, or other reasons. (See C-16). At the same time, such negotiations must ensure that those schools that the SEA has prioritized, based on the number of low-income children and the impact from COVID-19, are not precluded from participation. (See C-14 and C-15).
D-6. May EANS funds be used to pay the salaries of non-public school teachers or other staff?
EANS funds may not be used to provide funds to non-public schools to cover payroll. Under section 312(d)(7) of the CRRSA Act, a public agency must control funds for services or assistance provided to non-public school students and teachers under the EANS program. However, an SEA may contract with a teacher at a non-public school directly to provide secular, neutral, and non-ideological services outside of the teacher’s contractual obligation with the non-public school. The non-public school teacher must be employed by the SEA or another public entity for EANS purposes outside of the time he or she is employed by the non-public school, and the non-public school teacher must be under the direct supervision of the SEA or other public entity with respect to all EANS activities. Also, an SEA may contract with a vendor to provide staff, such as nurses or teachers, who will provide services in nonpublic schools. The contract must be under the control and supervision of the SEA or another public entity.
D-8. Are there otherwise allowable expenses for services or assistance for which an SEA may not reimburse a non-public school?
Yes. Although an SEA may provide the services or assistance listed below directly to a non-public school or through a contract with an individual, association, agency, or organization under the EANS program (see D-1), the SEA may not reimburse a non-public school for:
• Improvements to ventilation systems (including windows), except for portable air purification systems, which may be reimbursed.
• Any expenses reimbursed through a loan guaranteed under the PPP (15 U.S.C. 636(a)) prior to December 27, 2020.
• Staff training and professional development on sanitization, the use of PPE, and minimizing the spread of COVID-19.
• Redeveloping instructional plans, including curriculum development, for remote or hybrid learning or to address learning loss.
• Initiating and maintaining education and support services or assistance for remote or hybrid learning or to address learning loss. (Section 312(d)(4)(M)).
E-2. How can an SEA maintain control of services or assistance for allowable activities that might affect the infrastructure of a non-public school?
Section 312(d)(4)(C) of the CRRSA Act authorizes a non-public school to request services and assistance under the EANS program for “improving ventilation systems, including windows or portable air purification systems to ensure healthy air in the non-public school.” That authority, however, is tempered by several other provisions. Section 312(d)(7) of the CRRSA Act, for example, requires an SEA or another public agency to keep title to materials, equipment and property purchased with EANS funds and the public agency must administer such materials, equipment, and property. Moreover, 34 C.F.R. § 76.661 requires that equipment and supplies purchased with EANS funds must be able to be removed from a non-public school without remodeling the non-public school facility. Clearly, a portable air purification system could meet these requirements because an SEA could keep title and it could be removed when no longer needed without remodeling the non-public school facility. A ventilation system that is installed and becomes a capital improvement in a non-public school, however, would not meet these requirements. Similarly, new windows would not be permissible, but repairing old windows to facilitate air flow could be allowable. In sum, whether this particular authorized activity is allowable depends on the attendant circumstances.
