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November 2, 2021

Please join Nelson Mullins Riley & Scarborough for the 2021 South Florida Health Forum taking place on November 2 in Fort Lauderdale, FL. We look forward to reconnecting with you after a year away from our annual event!

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April 8, 2020

US DOE Invites States to Submit Fiscal Spending Waiver Requests Under CARES Act

By Sherry Culves, Neeru "Nina" Gupta

The first round of flexibility waivers under the CARES Act has begun.  On Friday, April 3, 2020, the US DOE sent a letter to all State DOE Chief School Officers inviting them to submit fiscal spending waiver requests as set forth below. The purpose of each of these waivers is to allow the state departments of education to grant local school districts (a) additional time to spend funds, (b) flexibility in how they spend certain federal funding, and (c) the removal of barriers such as requirements for needs assessments for funding.  

States are required to provide local school districts and the public with notice and an opportunity to comment on the waiver requests by posting a process for commenting on the State DOE website.  

None of the waiver requests listed in this recent round (which is aimed at fiscal spending flexibility) address the much-needed relief from certain implementation requirements under the IDEA, Section 504 of the Rehabilitation Act, the CTE Act, or the ESSA.  Under the CARES Act, the US DOE has until April 26 to submit additional recommendations to Congress that the US DOE believes are “necessary” to provide “limited flexibility” from implementation requirements in response to the coronavirus emergency. Likewise, none of these waiver requests currently impact any additional federal funding that has been allocated for distribution to the states under the CARES Act.  We expect that guidance will be issued soon describing how states can receive additional funding allocated under the CARES Act.

The Fiscal Spending Waiver Requests authorized by the US DOE’s April 3, 2020, letter to the State DOEs include:

  • Section 1127(b) of Title I, Part A of the ESEA so that your State educational agency (SEA) may waive, more than once every three years, if necessary, the 15 percent carryover limitation in ESEA section 1127(a) for fiscal year (FY) 2019 Title I, Part A funds.
  • Section 421(b) of the General Education Provisions Act (GEPA) to extend the period of availability of FY 2018 funds for programs in which your SEA participates under its approved consolidated State plan until September 30, 2021. Possible programs that States can request extensions for include:
    • Title I, Part A of the ESEA (Improving Basic Programs Operated by LEAs), including the portions of the SEA’s Title I, Part A award used to carry out section 1003 school improvement, section 1003A direct student services, if applicable, and Title I, Part D, Subpart 2
    • Title I, Part B of the ESEA (State Assessment Formula Grants)
    • Title I, Part C of the ESEA (Education of Migratory Children)
    • Title I, Part D, Subpart 1 of the ESEA (Prevention and Intervention Programs for Children and Youth Who Are Neglected, Delinquent, or At Risk)
    • Title II, Part A of the ESEA (Supporting Effective Instruction)
    • Title III, Part A of the ESEA (English Language Acquisition, Language Enhancement, and Academic Achievement)
    • Title IV, Part A of the ESEA (Student Support and Academic Enrichment Grants)
    • Title IV, Part B of the ESEA (21st Century Community Learning Centers)
    • Title V, Part B, Subpart 2 of the ESEA (Rural and Low-Income School Program)
    • McKinney-Vento Education for Homeless Children and Youth Program
  • Section 4106(d) of Title IV, Part A of the ESEA related to local educational agency (LEA) needs assessments for the 2019-2020 school year.
  • Section 4106(e)(2)(C), (D), and (E) of Title IV, Part A of the ESEA with respect to content-area spending requirements for FYs 2018 and 2019 Title IV, Part A funds.
  • Section 4109(b) of Title IV, Part A of the ESEA with respect to the spending limitation for technology infrastructure for FYs 2018 and 2019 Title IV, Part A funds.
  • Section 8101(42) of the ESEA, which defines “professional development,” for activities funded for the 2019-2020 school year. This will allow flexibility to conduct necessary professional development aimed at implementing effective distance learning.  

The following is the link to the US DOE’s waiver invitation. https://oese.ed.gov/files/2020/04/invite-covid-fiscal-waiver-19-20.pdf 

The US DOE also provided a simple waiver request form for the states to submit. https://oese.ed.gov/files/2020/04/template-covid-fiscal-waiver-19-2020.pdf

There may be additional flexibility under the CARES Act, or other legislation, that may be available in the near future. Our team will monitor these developments closely.

If you have any questions or would like assistance in navigating your institution’s response to COVID-19, please contact Nina Gupta, Sherry Culves, or any members of the Nelson Mullins Education Team.

For additional information on COVID-19 related issues, please visit the Nelson Mullins COVID-19 resource page.

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