CARES Act Elementary and Secondary Education Provisions

April 16, 2020

CARES Act Elementary and Secondary Education Provisions

On March 27, 2020, the Coronavirus Aid, Relief, and

Economic Security (CARES) Act (P.L. 116-136) was

signed into law. The law includes several provisions that

apply to elementary and secondary education, including

new waiver authority for the Secretary of Education (the

Secretary), the creation of the Education Stabilization Fund

(ESF), and additional funding for the Project School

Emergency Response to Violence program, more

commonly known as Project SERV. This In Focus provides

an overview of these provisions.

National Emergency Educational

Waivers

The COVID-19 Pandemic Education Relief Act of 2020,

included as Title III-B of the CARES Act, provides for

waivers primarily related to the Elementary and Secondary

Education Act (ESEA). Section 3511 of the CARES Act

allows the Secretary, upon request of a state educational

agency (SEA), local educational agency (LEA), or Indian

tribe, to grant waivers of various statutory or regulatory

provisions if the Secretary determines that such a waiver is

necessary and appropriate due to the coronavirus

emergency determined to exist by the President under

Section 501(b) of the Robert T. Stafford Disaster Relief and

Emergency Assistance Act (hereinafter referred to as the

coronavirus emergency).

The Secretary is required to create a streamlined application

process for SEAs (including the Bureau of Indian Education

[BIE]) and Indian tribes to request a waiver of any statutory

or regulatory requirement for an SEA related to educational

assessments, accountability, and reporting requirements

pertaining to assessments and accountability under Section

1111 of the ESEA or Section 421(b) of the General

Education Provisions Act (GEPA) (which concerns the

extension of the period available for the obligation and

expenditure of appropriated funds). The Secretary may

grant such waivers using the streamlined application

process if she determines that such waivers are necessary

and appropriate due to the coronavirus emergency.

Any school located in a state that receives a waiver of any

provisions included under the streamlined process that is

identified for comprehensive support and improvement,

targeted support and improvement, or additional targeted

support and improvement for the 2019-2020 school year

under Section 1111 of the ESEA will maintain that

identification status for the 2020-2021 school year and

continue to receive supports and interventions that are

consistent with the school’s support and improvement plan

in the 2020-2021 school year.

Waivers of ESEA provisions may also be requested under a

second waiver request process. For an SEA (including the

BIE), LEA (including a BIE-funded school), or Indian tribe

that receives funding under the ESEA and requests a waiver

using the waiver process described below, the Secretary

may waive statutory and regulatory provisions of the ESEA

related to, for example, maintenance of effort (MOE),

provisions under the Student Support and Academic

Enrichment (SSAE) grant program (Title IV-A), and the

definition of professional development that applies to the

ESEA. To receive a waiver, the request must describe how

the emergency related to the coronavirus restricts the ability

of the state, SEA, LEA, Indian tribe, or school to comply

with such statutory or regulatory requirements and include

an assurance that the SEA, LEA, or Indian tribe will work

to mitigate any negative effects that may occur as a result of

the requested waiver. The Secretary is required to approve

or disapprove a waiver request submitted under this process

within 30 days after the date on which the request was

submitted.

Any waiver approved by the Secretary under the provisions

of the CARES Act may be for a period not to exceed the

2019-2020 academic year, except to carry out the full

implementation of any MOE waivers granted during the

2019-2020 academic year. The CARES Act prohibits the

Secretary from waiving any statutory or regulatory

provision related to civil rights.

Not later than seven days after granting a waiver under

Section 3511, the Secretary must notify Congress about the

waiver. Not later than 30 days after granting a waiver under

Section 3511, the Secretary must publish a notice of her

decision to do so in the Federal Register and on the U.S.

Department of Education’s (ED’s) website.

In addition, not later than 30 days after the enactment of the

CARES Act, the Secretary is required to prepare and submit

a report to Congress on any additional waivers under the

Individuals with Disabilities Education Act (IDEA), ESEA,

and Carl D. Perkins Career and Technical Education Act of

2006 that she believes are necessary to be enacted into law

to provide limited flexibility to SEAs and LEAs to meet the

needs of students during the coronavirus emergency.

Education Stabilization Fund

The ESF is comprised of three emergency education relief

funds: (1) a Governor’s Emergency Education Relief

(GEER) Fund (Section 18002), (2) an Elementary and

Secondary School Emergency Relief (ESSER) Fund

(Section 18003), and (3) a Higher Education Emergency

Relief (HEER) Fund (Section 18004). The HEER Fund is

not discussed further in this In Focus. The ESF has an

appropriations level of $30.750 billion for FY2020. The

funds are to remain available through September 30, 2021,

and be administered by ED.

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CARES Act Elementary and Secondary Education Provisions

From the total appropriation for the ESF, the Secretary is

required to reserve up to 0.5% for the outlying areas, 0.5%

for the Bureau of Indian Education, and 1% to provide

competitive grants to the states with the “highest

coronavirus burden” to support activities under the ESF.

For the purposes of the ESF, state is defined to include the

50 states, the District of Columbia, and the Commonwealth

of Puerto Rico. It is possible that at least a portion of the

funds awarded through the competitive grant program could

be used to benefit elementary and secondary education.

The Secretary is required to provide the remainder of the

funds to the emergency education relief funds. Funds made

available under the GEER Fund could potentially benefit

elementary and secondary education. Funds provided under

the ESSER Fund are focused specifically on elementary and

secondary education.

Governor’s Emergency Education Relief (GEER)

Fund

The FY2020 appropriation for this fund is about $3.0

billion. The funds are to be awarded to governors based on

each state’s share of individuals ages 5 through 24 and each

state’s share of children counted in Section 1124(c) of the

ESEA for purposes of awarding Title I-A grants to LEAs.

Each governor may choose to use the funds in the following

ways: (1) providing emergency funds to LEAs that the SEA

“deems have been most significantly impacted by

coronavirus” to support these LEAs in providing

educational services to their students and to support the

“on-going functionality” of the LEA, (2) providing

emergency funds to institutions of higher education (IHEs)

serving students within the state that the governor

determines to “have been most significantly impacted by

coronavirus” to support these IHEs in providing educational

services and to support the “on-going functionality” of the

IHE; and (3) providing emergency support to any other

IHE, LEA, or education-related entity within the state that

the governor deems “essential for carrying out emergency

educational services” to students for a broad array of

purposes ranging from any activity authorized under

various federal education laws (e.g., the ESEA and Higher

Education Act) to the provision of child care and early

childhood education, social and emotional support, and the

protection of education-related jobs.

Elementary and Secondary School Emergency

Relief (ESSER) Fund

The FY2020 appropriation for this fund is approximately

$13.2 billion. The funds are to be awarded to states based

on their relative shares of grants awarded under Title I-A of

the ESEA. SEAs are required to provide at least 90% of the

funds they receive to LEAs to be used for myriad purposes

such as any activity authorized under various federal

education laws (e.g., the ESEA, Individuals with

Disabilities Education Act), coordination of preparedness

and response to the coronavirus, technology acquisition,

mental health services, and activities related to summer

learning. Funds retained by the SEA must be used for

emergency needs, as determined by the SEA, to address

issues in response to the coronavirus and for administration.

Other Provisions Related to Elementary and

Secondary Education

The ESF also includes provisions related to elementary and

secondary education issues such as equitable services,

employment, and MOE provisions.

The ESF requires that LEAs use funds received under the

GEER Fund or the ESSER Fund to provide equitable

services to students and teachers in non-public schools, as

determined in consultation with representatives of nonpublic schools, in accordance with the requirements of

Section 1117 of the ESEA. Control of the funds that are

used to provide services and assistance to students and

teachers in non-public schools, as well as title to materials,

equipment, and property purchased with such funds, must

remain with a public agency.

In addition, any LEA, state, IHE, or other entity that

receives funds under the ESF is required to the greatest

extent practicable to pay its employees and contractors

during the period of any disruptions or closures related to

the coronavirus.

Finally, the ESF includes MOE provisions that apply to

state funding for elementary and secondary education in

FY2020 and FY2021. A state must provide an assurance

that it will maintain support for elementary and secondary

education in FY2020 and FY2021 at least at the average

level of support provided for elementary and secondary

education during the three fiscal years preceding the date of

enactment of the CARES Act (i.e., FY2017, FY2018, and

FY2019). The Secretary, however, has the authority to

waive these ESF MOE requirements to relieve fiscal

burdens on states that have “experienced a precipitous

decline in financial resources.” The ESF MOE requirements

are in addition to the existing ESEA MOE requirements

that apply at the state and LEA levels and also can be

waived by the Secretary under certain circumstances.

Project SERV

Project SERV was created to provide resources to LEAs

and IHEs that have experienced a violent or traumatic crisis

that disrupted the learning environment, such as a school

shooting or hurricane. The program received $3.76 million

in FY2020.

The CARES Act provides an additional $100 million for

Project SERV to supplement existing funds to prevent,

prepare for, and respond to the coronavirus domestically or

internationally. In addition to other allowable uses of

Project SERV funds, the CARES Act specifically states that

the additional funds can be used by elementary, secondary,

and postsecondary schools to clean and disinfect affected

schools and assist with costs related to counseling and

distance learning.

Rebecca R. Skinner, Specialist in Education Policy

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IF11509

CARES Act Elementary and Secondary Education Provisions

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