The MSBA Weekly Advocate
Legislative news school boards need to know
New Law has $54 Billion for K-12 Public Schools
Coronavirus Response and Relief Supplemental Appropriations Act

On Saturday, December 26, 2020, the President signed into law the Coronavirus Response and Relief Supplemental Appropriations Act, a $900 billion legislative package to assist with the COVID-19 national emergency. As part of the package, education received $82 billion in funding relief including $54 billion dedicated to K-12 public schools. 

MSBA and the National School Boards Association (NSBA) is pleased with the passage of this bipartisan legislation. It is a positive step forward in what is a still long journey ahead for public schools during the pandemic and beyond. Since spring and the passage of the CARES Act, MSBA and NSBA have been calling on Congress and the Administration to do more for public schools during this unprecedented time. The COVID-19 emergency legislation will offer some much-needed relief for public schools, students, and the nation. But it is only a small investment in resources and needs necessary for public schools and the students we serve to get through this national emergency. In January, there must be steps toward another relief package to help the millions of public school students and their families impacted by the pandemic.
While the passage of this legislation is welcome news, there is still much work to do ahead. The $54 billion is far short of the $200 billion minimum in funding relief needed to help public schools during this time. Moreover. the assistance for broadband connections provided in the legislation will offer some help to some students who lack internet access, but it will require students to compete with other interest groups for the funding. There is no dedicated funding for the homework gap provided in the legislation despite MSBA, NSBA's and other education groups calling for a minimum of $12 billion in dedicated funding for that issue that would run through the Federal Communications Commission's E-Rate program for schools and libraries. Going forward, MSBA and NSBA will be focused on advocating for these additions to the next relief package as well as the inclusion of other important provisions.

To assist you in understanding the legislation, at the request and in cooperation with NSBA, we are sharing the a high-level overview by Foresight Law + Policy. It includes a detailed summary of the key sections of the legislation and provides a side-by-side comparison of important fund uses in the recent legislation and the CARES Act which was passed in March. We hope this overview provides valuable information as you work with your members on the various sections of the legislation.

Summary of the Education Provisions of the Coronavirus Response and Relief Supplemental Appropriations Act

December 22, 2020

On December 21, Congress approved a $900 billion pandemic emergency response bill titled the Coronavirus Response and Relief Supplemental Appropriations Act (the “Response and Relief Act”). The long-awaited emergency bill provides $82 billion for K-12 schools and postsecondary institutions to be distributed, with some important modifications, through the three education emergency programs established by the CARES Act (P.L. 116-136) in March 2020: (1) the Governors Emergency Education Relief (GEER) fund; (2) the Elementary and Secondary School Emergency Relief (ESSER) fund; and (3) the Higher Education Emergency Relief (HEER) fund. This memorandum summarizes the Response and Relief Act’s treatment changes to the GEER, ESSER, and HEER funds and briefly describes other items relevant to schools and higher education institutions such as the law’s broadband, nutrition, and childcare provisions. The paper also addresses the law’s extension of key CARES Act milestones, such as the deadline when education entities must use resources provided by governors from the Treasury Department’s Coronavirus Relief Fund. Given the breadth of this sweeping law, Foresight will update this memorandum, as needed, after our team completes a deeper analysis of its text.

Education Stabilization Fund
The Response and Relief Act uses the CARES Act’s Education Stabilization Fund, with modifications, as the mechanism for distributing $82 billion in new emergency funding. As with CARES, the new law provides discretionary education resources to governors through the GEER fund, sends money to state departments of education and school districts through the ESSER fund, and directs money to higher education institutions through the HEER fund. Unlike the CARES Act, the new law includes a significant set aside for non-public schools to be administered by state education agencies and governors. It also includes new reporting requirements for states and subgrantees that receive ESSER funds and provides for some changes and additions to the program’s eligible uses (the uses remain very flexible).

Governor’s Emergency Education Relief Fund (GEER, $4.1 billion)
The Response and Relief Act’s GEER funding will be distributed to states as follows:
●   60% based on the relative population of individuals aged 5 through 24; and
●   40% based on the relative number of children counted under ESEA section 1124(c).

GEER funds may be used for:
●   Emergency support to LEAs that the SEA deems have been most significantly impacted by the coronavirus to continue to provide educational services to students and to support the ongoing functionality of the LEA.
●   Emergency support to institutions of higher education that the Governor determines have been most significantly impacted by the coronavirus to continue to provide educational services and support the ongoing functionality of the institution.
●   Provide support to any other institution of higher education, LEA, or education-related entity within the state, including Indian Tribes, and Tribal organizations that the Governor deems essential for carrying out emergency education services to students for authorized activities described in section 313(d)(1) or the HEA; the provision of child care and early childhood education, social and emotional support; and the protection of education-related jobs.

Any remaining funds that have not been awarded or obligated within 1 year after the date of receipt of the funds must be returned to the Department of Education to be reallocated to the remaining states.

Private Schools

In a significant departure from the CARES Act, the Response and Relief Act’s GEER funding includes $2.75 billion in dedicated emergency assistance for non-public schools, which will be administered by SEAs.

●   These funds are allotted to states based on the total number of children aged 5 through 17 at or below 185% of poverty who are enrolled in non-public schools in the state compared to the total number of all such children in all states.
●   SEAs are also required to prioritize services or assistance to non-public schools that enroll low-income students and those who are most impacted by the qualifying emergency.
●   This assistance may be used in a variety of ways, including for:
○   Supplies to sanitize, disinfect, and clean school facilities;
○   Personal protective equipment;
○   Improving ventilation systems;
○   Training and professional development for staff on sanitation, the use of personal protective equipment, and minimizing the spread of infectious diseases;
○   Physical barriers to facilitate social distancing;
○   Other materials, supplies, or equipment to implement public health protocols;
○   Expanding capacity to administer coronavirus testing;
○   Educational technology to assist with remote or hybrid learning (including connectivity, hardware, and software);
○   Redeveloping instructional plans;
○   Leasing of sites or spaces to ensure safe social distancing;
○   Reasonable transportation costs;
○   Initiating and maintaining education and support services or assistance for remote learning, hybrid learning, or to address learning loss; or
○   Reimbursement for the expenses of any services or assistance described above that the non-public school incurred on or after the date of the qualifying emergency, except for any non-public school that received a loan under the Small Business Act prior to this Act shall not be eligible for reimbursements for any expenses reimbursed through such loan.
Private schools must apply to the state educational agency for funding and disclose the number of students from low-income families that they enroll and whether they received other small business loans prior to the latest stimulus package. Language prohibits states from using any funds to support vouchers or tax credit scholarship programs. Control of the funds provided to non-public schools and title to materials, equipment and property purchased with it must be in a public agency that will administer it. This obligation appears to protect non-public school recipients from having to comply with numerous federal requirements associated with direct receipt of U.S. Department of Education funds.

Elementary and Secondary Emergency Education Support Fund (ESSER, $54.3 billion)
The Response and Relief Act provides $54.3 billion for the Elementary and Secondary School Emergency Relief (ESSER) fund. These funds will be allocated based on each state’s proportional share of Title I Part A funding under ESEA. At least 90% of ESSER funding must be subgranted to LEAs (and charter schools functioning as LEAs) based on their proportional share of Title I Part A funding.

States will not need to re-submit a new application to receive this additional funding. Rather, any state with an approved CARES Act ESSER funding application will receive additional ESSER grant funding within 30 calendar days of enactment (tentative: January 22, 2021).

State Set-Aside: States may use up to 0.5% of their allocation for administrative costs and must use the remaining 9.5% on other emergency needs identified by the SEA in responding to the ongoing pandemic. This language is largely the same as under the CARES Act, but the Response and Relief Act goes a bit further in encouraging SEAs to use this funding to measure and address learning loss (although this does not constitute a requirement).

Allowable Uses of ESSER Funds: Allowable uses of funds were modestly expanded in comparison to the CARES Act (12 → 15 total uses), which includes the following (list condensed slightly for clarity, see table below in Appendix A for further detail):

1.   Any use of funds already authorized under ESEA, IDEA, Title II of WIOA (Adult Education and Family Literacy), Perkins Career and Technical Education Act (Perkins V), or Subtitle B of Title VII of McKinney-Vento Homeless Assistance Act
2.   Coordinating preparedness / response efforts of LEAs with other public health departments and other relevant agencies to improve coordination of pandemic response efforts
3.   Providing principals / school leaders with resources necessary to address the needs of their schools
4.   Activities to address the unique needs of marginalized or otherwise disadvantaged student suppopulations, including outreach and service delivery efforts
5.   Developing and implementing processes / procedures/ systems to improve pandemic response efforts of LEAs
6.   Training / professional development for LEA staff regarding sanitization / minimizing spread of infection
7.   Purchasing cleaning / sanitizing supplies to clean facilities of an LEA, including other non-school buildings operated by the LEA
8.   Planning, coordinating, and implementing activities during long-term closures, including providing meals to eligible students, providing technology for online learning, providing ongoing guidance for carrying out the requirements of IDEA, and ensuring educational services are provided consistent with all state, local, and federal requirements
9.   Purchasing educational technology for students served by the LEA
10.   Providing mental health services and supports
11.   Planning and implementing activities related to summer learning and supplemental after school programs, including providing instruction (online or in-person) during the summer months
12.   (NEW) Addressing learning loss among students by:
a.   Administering and using high quality assessments to assess students’ academic progress and assist educators in meeting students’ academic needs (including by differentiating instruction)
b.   Implementing evidence-based activities to meet the needs of students
c.   Providing information / assistance to parents and families on how to support students during distance education
d.   Tracking student attendance and improving student engagement during distance education
13.   (NEW) School facility repairs / improvements that help reduce risk of virus transmission and exposure to other environmental health hazards
14.   (NEW) Inspection, testing, maintenance, repair, and replacement projects to improve the indoor air quality of school facilities
15.   Other activities that are necessary to maintain the operation of and continuity of services in LEAs and continuing to employ existing LEA staff

Reporting Requirement (New): All states that receive ESSER funding will be required to submit a report to USED within six months of receiving ESSER funds providing a “detailed accounting” of how the SEA and subgrantees used ESSER funds, including how the state is using ESSER funds to address learning loss among students disproportionately affected by the pandemic and related school closures. The legislation leaves the scope, content, and frequency of these reports at the discretion of USED.

Higher Education Emergency Relief Fund (HEER, $22.7 billion)
Funds provided to institutions through the Higher Education Emergency Relief Fund are allocated as follows:
●   89% to all public and private non-profit institutions of higher education, similar to the CARES Act, allocated per college and university based on the following formula:
○   37.5% according to the relative share of full-time equivalent enrollment of students who were Federal Pell Grant recipients
○   37.5% according to the relative share of the total number of students who were Federal Pell Grant recipients
○   11.5% according to the relative share of full-time equivalent enrollment of students who were not Federal Pell Grant recipients
○   11.5% according to the relative 19 share of the total number of students who were not Federal Pell Grant recipients
○   1% according to the relative share of full-time equivalent enrollment of students who were Federal Pell grant recipients and who were exclusively enrolled in distance education courses prior to the pandemic
○   1% according to the relative share of the total number of students who were Federal Pell grant recipients and who were exclusively enrolled in distance education courses prior to the pandemic.
●   7.5% for additional awards to minority serving institutions.
●   0.5% for institutions with the greatest unmet need, to be determined through an application process run by USED.
●   3% to proprietary institutions of higher education.

Funding for institutions of higher education will be available within 30 days of the law’s enactment. The additional awards for minority serving institutions may take up to 60 days. Colleges will not need to submit a new application to USED to receive funding if they submitted an approved application under the CARES Act.

Institutions may use funds to:
●   defray expenses associated with coronavirus (including lost revenue, reimbursement for expenses already incurred, technology costs associated with a transition to distance education, faculty and staff trainings, and payroll);
●   carry out student support activities authorized by the HEA that address needs related to coronavirus; or
●   provide financial aid grants to students. In making financial aid grants to students, an institution of higher education is required to prioritize grants to students with exceptional need, such as students who receive Pell Grants.

As with the CARES Act, institutions must split their funding between emergency student financial aid and institutional expenses, and dedicate at least the same amount of funding to student financial aid as they did under their CARES Act allocations. For profit colleges may only use funding received through this law for emergency financial aid to students.

Colleges must begin reporting to USED how they have used the funds beginning 6 months after receiving their funding, and thereafter as frequently as the Secretary of Education requires.

Maintenance of Effort
States using the emergency education funding provided by the Response and Relief Act must maintain their funding for secondary and postsecondary education at the average of their 2017-2019 funding levels for education. However, the Secretary of Education may grant waivers to allow states to bypass this requirement.

Outlying areas and Bureau of Indian Education-operated and Funded Schools
Independent of the three funds described above (GEER, ESSER, and HEER), the Relief and Response bill’s emergency education funding includes $819 million for outlying areas and Bureau of Indian Education-operated and funded schools and tribal colleges and universities. 

Notable Miscellaneous Provisions
Coronavirus Relief Fund Extension
For states where governors elected to use a portion of the CARES Act funding received through the Treasury Department’s Coronavirus Relief Fund (CRF) for education purposes, the deadline for spending down funds through the CRF has been extended from December 31, 2020 to December 31, 2021.

Paid Sick and Family Leave Extension
The Response and Relief Act extends the refundable payroll tax credits for paid sick and family leave, enacted earlier this year in the Families First Coronavirus Response Act, through the end of March 2021. It also modifies the tax credits so that they apply as if the corresponding employer mandates were extended through the end of March 2021.

Institute of Education Sciences Funding
The Response and Relief Act permits, as requested by the U.S. Department of Education, postponement of the 2021 NAEP. The law also provides $28 million to IES to prevent, prepare for and respond to the pandemic, domestically or internationally, and for carrying out the NAEP.

Broadband Funding
The Response and Relief Act provides $3.2 billion of broadband assistance for low income households through a new (temporary) FCC “Emergency Broadband Benefit Program”. The law also provides the National Telecommunications and Information Administration (NTIA) with $300 million for a rural broadband infrastructure program and $1 billion for a tribal broadband deployment fund that includes a focus on telehealth, distance learning, broadband affordability, and digital inclusion; provides $285 million for a broadband pilot for communities near historically Black colleges and establishes an Office of Minority Broadband Initiatives at NTIA; provides $65 million for the FCC to complete the broadband mapping project required by the Broadband DATA Act; and provides $2 billion, through the Secure and Trusted Reimbursement Program, to small telecommunication providers to remove and replace Huawei/ZTE equipment deemed a security risk by the FCC. The law does not provide any emergency funding to the E-rate program for the purpose of closing the Homework Gap.

Child Care and Head Start
The Response and Relief Act provides $10 billion for the Child Care and Development Block Grant program. The flexible funding may be used for a variety of purposes including personnel costs; sanitization and cleaning; personal protective equipment, fixed costs, rent, utilities, and other child care related service. The law also provides $250 million for Head Start providers to help them safely serve children and families.

The Response and Relief Act provides $13 billion for the Supplemental Nutrition Assistance Program. This investment supports an across-the-board 15 percent increase in monthly SNAP benefits for six months beginning January 1. The new law also provides additional flexibility to support the distribution of P-EBT benefits to school age children and expands the program for children under six years old.

Other Higher Education Provisions
The Response and Relief Act forgives nearly $1.3 billion in federal loans to historically Black colleges and universities; permits incarcerated students to receive Pell Grants; simplifies the Free Application for Student Aid; and repeals a prohibition on students convicted of drug offenses from receiving federal financial aid.

MSBA will continue to keep you updated. Meanwhile, we wish you and your families a very Happy New Year!
Denise and Kim