In accordance with the Coronavirus Aid, Relief, and Economic Security (CARES) Act, the US Department of Education has established a $30.75 billion Education Stabilization Fund comprised of three separate allocations: (1) a Governor’s Emergency Education Relief Fund, (2) an Elementary and Secondary School Emergency Relief (ESSER) Fund, and (3) a Higher Education Emergency Relief Fund. K-12 educational institutions will benefit from the first two funds. The Wisconsin Department of Public Instruction (DPI) received $46 million (Section 18002) and $174.8 million (Section 18003), which it will distribute to Wisconsin educational institutions. On May 29, 2020, DPI announced the allocations of the ESSER grants and the steps that school districts must complete in order to access these grant funds. The grant application process will be open in WISEgrants starting in July 2020. https://dpi.wi.gov/cares/esser-grants. This Legal Update will review the steps and identify areas for school district decision making.
First, school districts, through the school board, district administrator or business manager (whoever is identified as the Agency Authorizer) must assure DPI, in writing, that it is paying employees and contractors to the greatest extent practicable by attesting that the school district:
a. Has been paying, and will continue to pay, employees and contractors in the same manner as before any disruptions or closures related to the coronavirus;
b. Has discontinued payments to any employee or contractor during disruptions or closures related to the coronavirus, but will resume these payments upon receipt of CARES Act funds; or
c. Will continue to pay employees and contractors to the greatest extent practicable. The LEA will be required to provide a reasonable explanation as to why the LEA is unable to pay its employees and contractors in the same manner as before any disruptions or closures related to the coronavirus, and how payments to employees and contractors will be made to the greatest extent practicable.
Thus, each school district will have to assure DPI that it has been paying and will continue to pay employees and contractors “in the same manner” as before the mandatory school closure period related to COVID-19, or assure DPI that the school district will start paying employees and contractors “in the same manner” as before the mandatory school closure period related to COVID-19 immediately upon receipt of the ESSER grant funds. If the school district cannot or will not make either assurance, then the school district must provide a reasonable explanation as to why it is unable or unwilling to pay employees and contractors “in the same manner” as before the mandatory school closure period related to COVID-19. DPI representatives have previously suggested that neither pressure from taxpayers, nor the public purpose doctrine, will serve as a reasonable explanation to justify the inability to pay employees and/or contractors in the same manner as before the mandatory school closure period. Instead, DPI suggested that a reasonable explanation might be the significant costs associated with virtual instruction or some other current or pending financial constraints.
School districts should take time in June 2020, to determine how to complete this portion of the ESSER grant application, including what it means to continue to pay employees and contractors “in the same manner” as before the mandatory school closure period. This analysis is particularly important for those school districts that previously decided to cease payments to a student transportation provider, to furlough staff members, and/or to terminate coaching and other extracurricular contracts for spring sports and activities. For such school districts, the application form does not appear to require the school district to provide retroactive payments to the employee or contractor. However, the school district may need to evaluate their anticipated allocation from the ESSER grant funds against the potential costs of resuming any form of payments to these individuals and groups. Of course, this is only one factor for the school district to consider; school districts should also be reflecting on the consequences, including the impact on the continuing relationship with the employee or contractor, of any decision not to pay such entities for the period of time covered by the mandatory school closure period, as well as the financial uncertainty for the upcoming school year that may be exacerbated by a decision to commit to paying individuals and/or groups during a time when no services are provided in exchange for such payments.
In addition to the payments to employees and contractors, school districts must also work with the private schools, if any, that are located within the school district’s boundaries by inviting them to consult on equitable participation in the ESSER grant. DPI requires that school districts give the private schools at least ten (10) days to respond to the invitation and to follow up with the private school at least two (2) times if they fail to report.
If the school district ultimately consults with a private school(s) within the school district’s boundaries, DPI identifies several steps to complete with the private school in order to determine their share for equitable participation and a plan to address and follow up with regard to the needs of students.
Third, school districts are expected to develop and submit a plan to use the ESSER grant funds to meet the needs of students and families. DPI has published on its website a list of allowable costs, which it will update as additional guidance is provided.
Fourth, each school district is also required to develop and submit a description of how the school district intends to ensure equitable access to and participation in the use of ESSER grant funds by all students. The application must include a short, succinct description of the steps to be taken to overcome barriers that can impede equitable access or participation in such programs by students based on their gender, race, national origin, color, disability, or age. DPI has published specific guidance regarding this requirement.
Finally, school districts must identify the specific costs that the school district incurred on or after March 13, 2020, that the school district intends to cover with the ESSER grant funds. DPI has encouraged each school district to work with the school district’s business office staff and auditor to make sure the process for recording costs, submitting budgets, and making claims align with the school district’s financial requirements and to avoid any unintended IDEA Maintenance of Effort (MOE) consequences related to special education (Fund 27) costs.
School districts should not wait until July 2020, to begin the process of completing the steps necessary to apply for ESSER grant funds. It is important to review DPI’s guidance carefully and thoughtfully and to complete any required actions before submitting the relevant paperwork to DPI. It is also a good opportunity to review, revisit, and perhaps reevaluate the school district’s past decisions with regard to employees, contractors, curriculum and other programs that occurred during the mandatory school closure period related to COVID-19.
For questions regarding this article, please contact the author,
or your Renning, Lewis & Lacy attorney.