[Federal Register Volume 85, Number 127 (Wednesday, July 1, 2020)]
[Rules and Regulations]
[Pages 39479-39488]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14224]
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DEPARTMENT OF EDUCATION
34 CFR Part 76
[Docket ID ED-2020-OESE-0091]
RIN 1810-AB59
CARES Act Programs; Equitable Services to Students and Teachers
in Non-Public Schools
AGENCY: Office of Elementary and Secondary Education, Department of
Education.
ACTION: Interim final rule with request for comments.
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SUMMARY: The U.S. Department of Education (Department) issues this
interim final rule to clarify the requirement in the Coronavirus Aid,
Relief, and Economic Security Act (CARES Act) that local educational
agencies (LEAs) provide equitable services to students and teachers in
non-public schools under the Governor's Emergency Education Relief Fund
(GEER Fund) and the Elementary and Secondary School Emergency Relief
Fund (ESSER Fund) (collectively, the CARES Act programs).
DATES:
Effective Date: This interim final rule is effective July 1, 2020.
Comment Due Date: We must receive your comments on or before July
31, 2020.
ADDRESSES: Submit your comments through the Federal eRulemaking Portal
or via postal mail, commercial delivery, or hand delivery. We will not
accept comments submitted by fax or by email or those submitted after
the comment period. To ensure that we do not receive duplicate copies,
please submit your comments only once. In addition, please include the
Docket ID at the top of your comments.
Federal eRulemaking Portal: Go to www.regulations.gov to
submit your comments electronically. Information on using
Regulations.gov, including instructions for accessing agency documents,
submitting comments, and viewing the docket, is available on the site
under ``How to use Regulations.gov.''
Postal Mail, Commercial Delivery, or Hand Delivery: If you
mail or deliver your comments about this interim final rule, address
them to Amy Huber, U.S. Department of Education, 400 Maryland Avenue
SW, Room 3W219, Washington, DC 20202.
Privacy Note: The Department's policy for comments received from
members of the public is to make these submissions available for public
viewing in their entirety on the Federal eRulemaking Portal at
www.regulations.gov. Therefore, commenters should be careful to include
in their comments only information that they wish to make publicly
available.
FOR FURTHER INFORMATION CONTACT: Amy Huber, U.S. Department of
Education, 400 Maryland Avenue SW, Room 3W219, Washington, DC 20202.
Telephone: (202) 453-6132. Email: EquitableServices.CaresAct@ed.gov.
If you use a telecommunications device for the deaf (TDD) or a text
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.
SUPPLEMENTARY INFORMATION:
Invitation to Comment: We invite you to submit comments on this
interim final rule. We will consider these comments in determining
whether to take any future action. See ADDRESSES for instructions on
how to submit comments.
During and after the comment period, you may inspect all public
comments about this interim final rule by accessing Regulations.gov.
Once the LBJ building reopens to the public, you may also inspect the
comments in person in Room 3W219, 400 Maryland Avenue SW, Washington,
DC, between the hours of 8:30 a.m. and 4:00 p.m., Eastern time, Monday
through Friday of each week except Federal holidays. If you want to
schedule time to inspect comments, please contact the person listed
under FOR FURTHER INFORMATION CONTACT.
Assistance to Individuals with Disabilities in Reviewing the
Record: On request, we will provide an appropriate accommodation or
auxiliary aid to an individual with a disability who needs assistance
to review the comments or other documents in the public record for this
interim final rule. If you want to schedule an appointment for this
type of aid, please contact the person listed under FOR FURTHER
INFORMATION CONTACT.
Background: This rulemaking resolves a critical ambiguity in
section 18005(a) of Division B of the CARES Act, Public Law 116-136,
134 Stat. 281 (Mar. 27, 2020) with respect to the equitable services
obligation owed by LEAs that receive CARES Act funds to students and
teachers in non-public schools. Section 18005(a) of the CARES Act,
titled ``Assistance to Non-public Schools,'' requires an LEA to
``provide equitable services in the same manner as provided under
section 1117 of the ESEA of 1965 [Elementary and Secondary Education
Act of 1965 (ESEA)] to students and teachers in non-public schools, as
determined in consultation with representatives of non-public
schools.'' Section 18005(b) lodges control of funds for the services
and assistance mandated in section 18005(a) in a ``public agency.''
The Department must construe the CARES Act based on plain meaning,
context, and coherence within the overall statutory structure. We are
obliged to interpret the CARES Act coherently, and fit, if possible,
all its parts into a harmonious whole. Finally, we must give meaning to
each element of the statute so that no language is surplus.
The CARES Act is a special appropriation to combat the effects of
the novel Coronavirus Disease 2019 (COVID-19). The pandemic has harmed
all our Nation's students by disrupting their education. Nothing in the
CARES Act suggests Congress intended to differentiate between students
based upon the public or non-public nature of their school with respect
to eligibility for relief.
Construing the phrase ``provide equitable services in the same
manner as provided under section 1117 of the ESEA of 1965'' as if
Congress simply incorporated the entirety of section 1117 by reference
requires a wholly inappropriate disregard for statutory text and for
controlling legal authorities requiring us to harmonize all relevant
statutory provisions. It would create significant and unnecessary
interpretative conflicts and ambiguity. Finally, a mechanistic
application of section 1117 detached from the relevant CARES Act text
would disadvantage some students based simply on where they live.
Therefore, exercising our interpretative authority under Chevron
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844
(1984), and relying on statutory language and context to develop a
harmonious construction faithful to all relevant CARES Act text and to
the entire statutory structure, see Food and Drug Admin. v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 132-33 (2000), we have
concluded the phrase ``in the same manner as provided under section
1117'' does not simply mean ``as provided under section 1117'' and that
we must implement section 1117 in a fashion fully consistent with all
relevant CARES Act text, purposes, and requirements.
[[Page 39480]]
On April 30, 2020, the Department issued guidance titled Providing
Equitable Services to Students and Teachers in Non-Public Schools under
the CARES Act Programs (Equitable Services guidance), available at
https://oese.ed.gov/files/2020/04/FAQs-Equitable-Services.pdf.
Specifically, the Department concluded that the provision of equitable
services under the CARES Act ``in the same manner as provided under
section 1117'' of Title I requires the application of, among other
provisions, section 1117(a)(3)(A) as outlined in Question #7 of the
Equitable Services guidance. Because services under the CARES Act
programs can be available for all students--public and non-public--
without regard to poverty, low achievement, or residence in a
participating Title I public school attendance area, the Department
instructed LEAs to use enrollment data in non-public schools that will
participate under the CARES Act programs compared to the total
enrollment in all public schools and participating non-public schools
in the LEA to determine the proportional share of CARES Act funds
available to provide equitable services.
A number of States took issue with the Department's guidance with
respect to using total non-public school enrollment to determine the
proportional share of CARES Act funds for equitable services.\1\ The
Council of Chief State School Officers (CCSSO), in particular,
expressed concern on behalf of its members. According to CCSSO,
Congress ``intended to concentrate ESSER funds in areas of the most
need, where the educational and social impacts of the COVID crisis will
be most extreme and difficult to overcome with limited local funds.''
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\1\ See, e.g., letter from Carissa Moffat Miller, Executive
Director, Council of Chief State School Officers, to Betsy DeVos,
U.S. Secretary of Education (May 5, 2020), available at https://ccsso.org/sites/default/files/2020-05/DeVosESLetter050520.pdf;
letter from Pedro A. Rivera, Secretary of Education, Pennsylvania
Department of Education, to Frank T. Brogan, Assistant Secretary for
Elementary and Secondary Education, U.S. Department of Education
(May 7, 2020), available at https://www.education.pa.gov/Documents/K-12/Safe%20Schools/COVID/CARESAct/Letter%20to%20Secretary%20Brogan.pdf.
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The text of the CARES Act is inconsistent with CCSSO's assertion
that Congress intended a rigid application of section 1117. Rather, the
CARES Act affords LEAs more flexibility. In light of concerns
expressed, as discussed below, we are affording flexibility to an LEA
that helps poor children by spending its CARES Act funds only in its
Title I schools to use the proportional share it calculated under
section 1117(a)(4)(A) for the 2019-2020 school year or to use the
number of children, ages 5 through 17, who attend a non-public school
in the LEA that will participate under a CARES Act program and who are
from low-income families compared to the total number of children, ages
5 through 17, who are from low-income families in both Title I schools
and participating non-public schools in the LEA. However, if an LEA
spends any funds from a CARES Act program on students and teachers in
non-Title I public schools, then the law requires equity for students
and teachers in participating non-public schools, achieved by using
enrollment to determine the proportional share.
Discussion:
I. Legal Framework
It is a ``fundamental canon of statutory construction that the
words of a statute must be read in their context and with a view to
their place in the overall statutory scheme.'' Davis v. Michigan Dept.
of Treasury, 489 U.S. 803, 809 (1989). We must interpret the CARES Act
``as a symmetrical and coherent regulatory scheme,'' Gustafson v.
Alloyd Co., 513 U.S. 561, 569 (1995), and ``fit, if possible, all parts
into an harmonious whole.'' FTC v. Mandel Brothers, Inc., 359 U.S. 385,
389 (1959). When Congress has not supplied a definition, a statutory
term generally has its ordinary meaning. See, e.g., Schindler Elevator
Corp. v. United States ex rel. Kirk, 563 U.S. 401, 407 (2011). The
plainness or ambiguity of statutory language is determined not only by
reference to the language itself, but also by the specific context in
which that language is used, and the broader context of the statute as
a whole. Yates v. United States, 135 S.Ct. 1074, 1081 (2015).
Constructions creating surplus language are disfavored as the
Department is ``obliged to give effect, if possible, to every word
Congress used.'' Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979);
see also Nat'l Ass'n of Mfgs v. Dep't of Defense, 138 S.Ct. 617, 632
(2018).
II. Analysis
A. The CARES Act
The CARES Act authorizes new Federal education programs to
``prevent, prepare for, and respond to'' COVID-19. Three of those
programs--the GEER Fund (section 18002(c)(1), (3)), the ESSER Fund
formula grants to LEAs (section 18003(c)), and the ESSER State
educational agency (SEA) Reserve (section 18003(e))--make funds
potentially available to LEAs.
GEER funds are available to, among other eligible entities, LEAs
that the SEA deems have been ``most significantly impacted'' by COVID-
19 to continue to provide educational services and to support the on-
going functionality of the LEA (section 18002(c)(1)) or to LEAs that
the Governor ``deems essential'' for carrying out emergency educational
services authorized under section 18003(d)(1) of the ESSER Fund;
provision of child care and early childhood education; social and
emotional support; and the protection of education-related jobs
(section 18003(c)(3)).\2\
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\2\ A Governor may target GEER funds for a specific purpose or
population of students, in which case an LEA would need to use the
funds accordingly.
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Ninety percent or more of ESSER funds are awarded by formula to
LEAs (including charter schools that are LEAs) in proportion to the
amount of funds such LEAs ``received under part A of title I of the
ESEA of 1965 in the most recent fiscal year'' (section 18003(c)). An
LEA may allocate the ESSER funds it receives without restriction and
use them for ``any'' activity in a long list, including any activity
authorized under the ESEA, the Individuals with Disabilities Education
Act, the Adult Education and Family Literacy Act, the Carl D. Perkins
Career and Technical Education Act, and the McKinney-Vento Homeless
Assistance Act (section 18003(d)(1)).
From the SEA Reserve under the ESSER Fund, an SEA may allocate
those funds to LEAs, among other entities, for emergency needs
determined by the SEA to address issues responding to COVID-19 (section
18003(e)).\3\
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\3\ An SEA may target ESSER SEA Reserve funds for a specific
purpose or population of students, in which case an LEA would need
to use the funds accordingly.
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The CARES Act programs do not favor students based on public or
non-public school attendance. Any student attending a public or non-
public school may receive a broad array of services irrespective of
where the student resides or whether he or she is low achieving or from
a low-income family.
Section 18005(a) of the CARES Act requires an LEA receiving funds
under sections 18002 or 18003 of the CARES Act to ``provide equitable
services in the same manner as provided under section 1117 of the ESEA
of 1965 to students and teachers in non-public schools, as determined
in consultation with representatives of non-public schools.''
Section 1117 is a provision of Title I, Part A (Title I) of the
ESEA, a program whose purpose is to improve the
[[Page 39481]]
academic achievement of low-achieving students who reside in public
school attendance areas with a high concentration of poverty (Title I
schools) (20 U.S.C. 6301 et seq.). Section 1117 requires an LEA that
receives Title I funds to provide equitable services to non-public
school students (20 U.S.C. 6320; 34 CFR 200.62-200.68). Under Title I,
funds for equitable services are generated by students from low-income
families who reside in a participating Title I public school attendance
area and attend a non-public school (20 U.S.C. 6320(a)(4)(A)(i); 34 CFR
200.64(a)). Using these funds, the LEA provides services to low-
achieving students who reside in a participating Title I public school
attendance area and attend a non-public school, regardless of the
location of the non-public school (i.e., inside or outside the public
school attendance area or the LEA in which the student resides) (20
U.S.C. 6320(a)(1); 34 CFR 200.62(b)(1)).
The same framework applies for public school students under Title
I. An LEA must identify eligible public school attendance areas and
rank them on the basis of concentration of poverty (20 U.S.C.
6313(a)(2), (b); 34 CFR 200.78(a)). The LEA then selects areas to
participate in Title I services in rank order of poverty, either for
the LEA as a whole or within a grade span--e.g., all elementary schools
(20 U.S.C. 6313(a)(3)-(4); 34 CFR 200.78(a)). Eligible public school
students must live in a school attendance area selected to participate
under Title I and be low achieving (20 U.S.C. 6314(b)(6), 6315(c)).
Thus, for both public and non-public school students, generation of
Title I funds and eligibility for Title I services depend on residence
in a participating Title I public school attendance area; that is,
similarly situated students receive the same benefits under Title I
(i.e., are treated ``equitably'') whether they attend a public Title I
school or a non-public school.
B. Resolving Ambiguity in Section 18005(a)
Section 18005(a) of the CARES Act is facially ambiguous. To begin
with, Congress did not need to add the words ``in the same manner'' if
it simply intended to incorporate ``section 1117 of the ESEA of 1965''
by reference in the CARES Act. The unqualified phrase ``as provided
in'' alone would have been sufficient.
Furthermore, Congress included a separate consultation requirement
in section 18005(a) of the CARES Act, and a public control of funds
provision in section 18005(b), notwithstanding the fact that section
1117 contains precisely parallel provisions. Compare section 18005(a)
and (b) of the CARES Act with section 1117(b) and (d) of Title I,
respectively. If Congress intended to incorporate ``section 1117 of the
ESEA of 1965'' wholesale into the CARES Act, and to have the Department
mechanistically apply it, then these provisions in sections 18005(a)
and (b) must be deemed superfluous and other key CARES Act text
ignored. Compare, e.g., section 1117(a)(1) (meeting the needs of non-
public school students who are low-achieving and reside in a
participating Title I public school attendance area) with sections
18002(c)(1) (emergency support for LEAs significantly impacted by
COVID-19 to continue education services to their students and to
support on-going functionality of the LEAs) and 18003(d) (support any
activity from a broad array of permissible purposes for any student and
staff without limitation on income, residence, or school attendance).
Finally, the CARES Act is a separate appropriation allowing
separate permissible uses of taxpayer funds. By definition, the
provisions in section 1117 relating to funding and eligibility for
services, e.g., section 1117(a)(1) and (4) and (b)(1)(E) and (J)(ii),
are inapposite in a CARES Act frame. However, the provisions in section
1117 relating to the ``manner'' in which services are delivered, e.g.,
section 1117(a)(2), (3), and (b)(1)(A)-(D), (F)-(I), and (K), arguably
do fit within and can be applied under the CARES Act.
These facts must be acknowledged and should drive construction of
section 18005(a)'s operative phrase ``in the same manner as provided
under section 1117'' of Title I. Accordingly, in the exercise of our
interpretative discretion, the Department has resolved the ambiguity by
permitting LEAs flexibility to provide equitable services, particularly
with respect to determining the proportional share, based on the
services it provides to public school students. An LEA that spends
funds from a CARES Act program only on students and teachers in Title I
schools may determine the proportional share on the basis of enrollment
or by either using the LEA's Title I proportional share for the 2019-
2020 school year or by using the number of students from low-income
families in participating non-public schools compared to the total
number of students from low-income families in Title I and
participating non-public schools in the LEA. All other LEAs must
determine the proportional share based on enrollment in public and
participating non-public schools.
We believe this flexibility is a reasoned and consistent
construction giving effect to all relevant statutory text. Any other
construction requires the words of section 18005(a) ``in the same
manner'' to be denuded of meaning, the consultation and public use of
funds provisions of section 18005(a) and (b) to be discarded as surplus
language, and, paradoxically, the equity mandate of section 1117(a)(3)
to be ignored.
Significant Regulations
To carry out functions vested in the Secretary by law, she is
``authorized to make, promulgate, issue, rescind, and amend rules and
regulations . . . governing the applicable programs administered by,
the Department.'' 20 U.S.C. 1221e-3; see also 20 U.S.C. 3474 (Secretary
is ``authorized to prescribe such rules and regulations as the
Secretary determines necessary or appropriate to administer and manage
the functions of the Secretary or the Department''). A ``rule'' is
defined broadly to include ``statement[s] of general or particular
applicability and future effect'' that are designed to ``implement,
interpret, or prescribe law or policy.'' 5 U.S.C. 551(4).
We discuss substantive issues under the sections of the interim
final rule to which they pertain. There are no current regulations.
In General
Statute: Section 18005(a) of the CARES Act requires an LEA that
receives funds under the GEER Fund or the ESSER Fund to provide
equitable services in the same manner as provided under section 1117 of
the ESEA to students and teachers in non-public schools, as determined
in consultation with representatives of non-public schools.
New Regulations: Section 76.665(a)(1) incorporates the statute.
Section 76.665(a)(2) identifies the CARES Act programs to which this
section applies: The GEER Fund, the ESSER Fund formula grants to LEAs,
and the ESSER SEA Reserve.
Reasons: It is necessary to include the statutory requirement that
an LEA provide equitable services ``in the same manner'' as provided
under section 1117 of the ESEA to students and teachers in non-public
schools to provide context and authorization for the remaining
provisions.
Consultation
Statute: Section 18005(a) of the CARES Act requires an LEA to
provide equitable services ``as determined in consultation with
representatives of non-public schools.''
[[Page 39482]]
New Regulations: Consultation must be ``in the same manner'' as
conducted under section 1117 of the ESEA. Section 76.665(b)(1)
incorporates section 1117's requirement that consultation must occur
during the design and development of the LEA's plans to spend CARES Act
funds and before the LEA makes any decision affecting the opportunities
of students and teachers in non-public schools to benefit from those
funds. As provided in section 1117(b)(1) of the ESEA, the LEA and
private school officials shall both have the goal of reaching timely
agreement on how to provide equitable and effective programs for
private school students and teachers.
Section 76.665(b)(2) makes clear that the requirements for
consultation in section 1117(b) of the ESEA apply to the CARES Act
programs unless they are inconsistent with the CARES Act statutory
provisions. For example, sections 1117(b)(1)(E) and (J)(ii), which deal
with calculating the proportional share in accordance with section
1117(a)(4)(A) of the ESEA, would not apply if an LEA chooses the
measure in Sec. 76.665(c)(1)(i)(B) or (ii).
Reasons: Consultation is the foundation on which equitable services
are provided and is mandated by section 18005(a). The regulations
clarify that section 1117(b) of the ESEA, including the due process
safeguards it contains, applies to the CARES Act programs, unless
certain provisions are inconsistent with the CARES Act. We have
identified two provisions that, on their face, are inconsistent with
two of the measures these regulations permit for determining the
proportional share because they refer to the proportional share as
calculated under Title I. The CARES Act is an emergency appropriation
to address exigent circumstances caused by responses to the pandemic.
Although section 18005(a) does not specify how consultation is to
occur, the Department believes using the section 1117(b) framework (to
the extent consistent with the CARES Act itself), which is very
familiar to schools and families, is a highly effective approach for
the speedy provision of equitable services.
Determining Proportional Share
Statute: Section 18005(a) of the CARES Act requires an LEA to
provide equitable services ``in the same manner as provided under
section 1117 of the ESEA'' to students and teachers in non-public
schools.
New Regulations: Section 76.665(c) sets out measures that an LEA
may use to determine the proportional share of funds available under
each CARES Act program to provide equitable services to students and
teachers in non-public schools. An LEA need not use the same measure
for each CARES Act program; however, it must use only one measure for a
single program.
Section 76.665(c)(1)(i) addresses an LEA that allocates all its
funds under a CARES Act program only to students and teachers in Title
I schools. In that case, the LEA has two options in addition to using
enrollment to determine the proportional share: (1) By using the
proportional share it calculated under section 1117(a)(4)(A) for the
2019-2020 school year; or (2) by using the number of children, ages 5
through 17, who attend a non-public school in the LEA that will
participate under a CARES Act program and who are from low-income
families compared to the total number of children, ages 5 through 17,
who are from low-income families in both Title I schools and
participating non-public schools in the LEA. If an LEA uses one of
these options, then the LEA must take care to ensure that it does not
violate the supplement not supplant requirement in section 1118(b)(2)
of the ESEA by allocating CARES Act funds to Title I schools and
redirecting State and local funds from those schools to non-Title I
schools. See Sec. 76.665(c)(3).
For all other LEAs, Sec. 76.665(c)(1)(ii) applies. This requires
the LEA to calculate the proportional share based on enrollment in
participating non-public elementary and secondary schools in the LEA
compared to the total enrollment in both public and participating non-
public elementary and secondary schools in the LEA.
Section 76.665(c)(2) requires an LEA to calculate the proportional
share of CARES Act funds off the top of the LEA's total CARES Act
allocation for each program under which it receives funds prior to any
expenditures or transfers by the LEA in accordance with section
1117(a)(4)(A)(ii) of the ESEA.
Reasons: Under Sec. 76.665(c)(1)(i), an LEA spending all its funds
under a CARES Act program only in its Title I schools may determine the
proportional share for equitable services based on enrollment or in two
additional ways based on the share of students from low-income families
attending participating non-public schools within the LEA. One path
permits an LEA to use the proportional share it calculated for Title I
purposes in the 2019-2020 school year. This approach has the obvious
advantage of simplicity because it is a known proportion.
Alternatively, if an LEA believes an actual poverty count would better
meet respective needs, then it may count students, ages 5 through 17,
from low-income families in Title I and participating non-public
schools using one of the poverty measures in section 1117(c)(1) of the
ESEA.
Given that the purpose of the CARES Act is to ``prevent, prepare
for, and respond to'' the effects of COVID-19, timely provision of
services to both public and non-public students and teachers is
critical. To the extent collecting poverty data from non-public school
families under Sec. 76.665(c)(1)(i)(B) would delay services, we
encourage an LEA to use proportionality, wherein the LEA would apply
the poverty percentage of its Title I schools as a whole to the
enrollment in non-public schools that will participate in a CARES Act
program. Whichever path an LEA chooses, it achieves the equity required
under section 1117(a)(3) of the ESEA--that is, educational services and
other benefits for students in non-public schools must be equitable in
comparison to those for public school students.
For all other LEAs, equity requires comparable treatment for non-
public school students and teachers, which is achieved by basing the
proportional share on enrollment in both public and participating non-
public schools in the LEA.
Congress has already taken poverty into consideration in allocating
CARES Act funds to LEAs. An LEA receives ESSER funds based on its
proportionate share of Title I funds (section 18003(c) of the CARES
Act). The Department allocates Title I funds to LEAs through four
statutory formulas, all of which are based on poverty counts that
include both public and non-public school children.\4\ An LEA's Title I
allocation is generally the sum it receives through each formula less
any required or authorized reservations by the State. Similarly, 40
percent of the GEER funds a Governor receives is based on the State's
share of Title I formula children (section 18002(b)(2) of the CARES
Act). Thus, Congress targeted both ESSER and GEER funds to high-poverty
areas to reflect their need.
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\4\ Title I's four formulas direct funds to LEAs based primarily
on an LEA's relative share of formula children, 97 percent of whom
are children ages 5 through 17 in poverty in public and non-public
schools as determined annually by the Census Bureau. In varying
degrees, the formulas address concentrations of poverty. 20 U.S.C.
6333-6337.
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However, once this allocation is made, the CARES Act authorizes an
LEA to serve all students--public and non-public--who have been
affected by COVID-19. If the CARES Act does not limit services based on
residence and
[[Page 39483]]
poverty, then it stands to reason that an LEA should not use residence
and poverty to determine the proportional share of available funds for
equitable services to non-public school students. In this context, only
the use of enrollment data ensures that sufficient CARES Act funds are
reserved to provide services to non-public school students and teachers
that are equitable in comparison to their public school
counterparts.\5\ In fact, this is the only way to give meaning to the
phrase ``in the same manner'' consistent with section 1117(a)(3) of the
ESEA, which requires that benefits for ``private school children shall
be equitable in comparison to services and other benefits for public
school children.'' In other words, if an LEA elects to use CARES Act
funds to serve all its students, then only a calculation of
proportional share based on all students--i.e., enrollment--satisfies
the requirements of section 1117(a)(3).
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\5\ About 4.9 million students or 9.1 percent of all elementary
and secondary school students in the Nation are enrolled in non-
public schools. Broughman, S.P., Kincel, B., and Peterson, J.
(2019). Characteristics of Private Schools in the United States:
Results From the 2017-18 Private School Universe Survey First Look
(NCES 2019-071), U.S. Department of Education. Using enrollment to
determine the share of CARES Act funds for equitable services and
assuming that every private elementary and secondary school chose to
participate in the CARES Act programs, less than 10 percent of the
CARES Act funding nationwide would be provided for equitable
services for non-public school students and teachers, with more than
90 percent of the funding directed to public school students and
teachers nationwide.
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To best meet its needs, an LEA may choose to use funds from one
CARES Act program (e.g., ESSER formula-grant funds) to serve students
and teachers only in its Title I schools and funds from another CARES
Act program (e.g., GEER funds) to serve students and teachers in any
school. In this case, the LEA would use the appropriate measure in
Sec. 76.665(c)(1) to determine the proportional share under each
program.
In sum, the measures in Sec. 76.665(c)(1)ensure the equitable
treatment of non-public school students and teachers compared to their
public school counterparts. The measures are also reasonable from the
standpoint of administrative efficiency, minimizing LEA and parent
burden, and carrying out the CARES Act's mandate to provide funds in
response to the COVID-19 pandemic promptly and to do so in a way
providing for equitable treatment of all students and teachers.
Equity
Statute: Section 18005(a) of the CARES Act requires an LEA to
provide equitable services ``in the same manner as provided under
section 1117 of the ESEA'' to students and teachers in non-public
schools.
New Regulations: Section 76.665(d)(1) implements section 1117(a)(3)
of the ESEA, which requires educational services and other benefits for
students and teachers in non-public schools be equitable in comparison
to services and other benefits for public school students and teachers.
Section 76.665(d)(2) makes clear that, irrespective of the measure an
LEA uses to determine the proportional share under paragraph (c)(1),
the LEA still has the obligation to afford students and teachers in any
non-public school in the LEA the opportunity to receive CARES Act
services.
Reasons: As explained above, section 1117(a)(3) of the ESEA
mandates equity in equitable services. Only if services and other
benefits to students and teachers in non-public schools are comparable
to those provided to public school students and teachers can they be
equitable.
Under Sec. 76.665(d)(2), each non-public school in an LEA may
request CARES Act services for its students and teachers. A non-public
school, however, is not required to accept equitable services. In fact,
the Department particularly discourages the small number of financially
well-resourced non-public K-12 schools from accepting CARES Act-funded
equitable services. Such schools include non-public boarding and day
schools with tuition and fees comparable to those charged by the most
highly selective postsecondary institutions. These schools tend to
serve families from the highest income brackets, although they
sometimes offer a limited number of scholarships to low- and middle-
income students each year. The Department believes such non-public
schools have ample resources to serve their students and teachers
during the COVID-19 national emergency and should not rely on taxpayer
funds to do so.
Secular, Neutral, and Nonideological
Statute: Section 18005(a) of the CARES Act requires an LEA to
provide equitable services ``in the same manner as provided under
section 1117 of the ESEA'' to students and teachers in non-public
schools. Section 1117(a)(2) of the ESEA requires educational services
or other benefits, including materials and equipment, be secular,
neutral, and nonideological.
New Regulations: Section 76.665(e) implements section 1117(a)(2) of
the ESEA.
Reasons: Section 76.665(e) makes clear that the services and
benefits an LEA provides under the CARES Act programs must be secular,
neutral, and nonideological.
Public Control of Funds
Statute: Section 18005(b) of the CARES Act requires the control of
CARES Act funds for services and assistance to students and teachers in
non-public schools and title to materials, equipment, and property must
be in a public agency and a public agency must administer those funds,
materials, equipment, and property. An LEA must provide services
directly or contract for the provision of services with a public or
private entity.
New Regulations: Section 76.665(f) implements section 18005(b) of
the CARES Act.
Reasons: Section 76.665(f) emphasizes the importance of the
statutory requirements that control of CARES Act funds and title to
materials, equipment, and property for equitable services to students
and teachers in non-public schools be in a public agency and that the
LEA or public agency continuously administers the funds, materials,
equipment, and property.
Waiver of Proposed Rulemaking and Delayed Effective Date
Under the Administrative Procedure Act (APA) (5 U.S.C. 553), the
Department generally offers interested parties the opportunity to
comment on a proposed rule. However, the APA provides that an agency is
not required to conduct notice and comment rulemaking when the agency,
for good cause, finds that the requirement is impracticable,
unnecessary, or contrary to the public interest. 5 U.S.C. 553(b)(B).
There is good cause here for waiving rulemaking. The CARES Act programs
were enacted to address the immediate effects of COVID-19. The statute
requires an LEA to provide services for students and teachers in non-
public schools that are equitable in comparison to services provided to
public school students and teachers. Before an LEA makes any decision
that affects the opportunity of non-public school students and teachers
to participate, it must consult with appropriate non-public school
representatives. Thus, an LEA cannot begin services for public or non-
public school students and teachers without consulting on determining
the amount of funds available for those services. Therefore, in light
of the current national emergency, its disruption on education in both
public and non-public schools, and the immediate need for certainty
regarding applicable requirements, the normal rulemaking process would
be
[[Page 39484]]
impracticable and contrary to the public interest because time is of
the essence. However, the Department is providing a 30-day comment
period and invites interested persons to participate in this rulemaking
by submitting written comments. The Department will consider the
comments received and may conduct additional rulemaking based on the
comments.
The APA also generally requires that a final or interim final rule
be published at least 30 days before its effective date, unless the
agency has good cause to implement its regulations sooner (5 U.S.C.
553(d)(3)). Again, this interim final rule is necessary immediately to
address the effects of COVID-19 on both public and non-public school
students and teachers. In response to the pressing need for States and
LEAs to have clear guidance on the use of funds under the CARES Act
programs so that they can help all schools address the disruption
created by COVID-19 and ensure that learning continues for all
students, consistent with the purposes of the CARES Act, it is
impracticable and contrary to the public interest to delay the
effective date. Accordingly, we make this rule effective on the day it
is published.
Executive Orders 12866, 13563, and 13771
Regulatory Impact Analysis
Under Executive Order 12866, the Office of Management and Budget
(OMB) must determine whether this regulatory action is ``significant''
and, therefore, subject to the requirements of the Executive order and
subject to review by OMB. Section 3(f) of Executive Order 12866 defines
a significant regulatory action as an action likely to result in a rule
that may--
(1) Have an annual effect on the economy of $100 million or more,
or adversely affect a sector of the economy; productivity; competition;
jobs; the environment; public health or safety; or State, local, or
Tribal governments or communities in a material way (also referred to
as ``economically significant'' regulations);
(2) Create serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles stated in the
Executive order.
This regulatory action is an economically significant regulatory
action subject to review by OMB under section 3(f) of Executive Order
12866. Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs designated this rule
as a ``major rule,'' as defined by 5 U.S.C. 804(2).
Under Executive Order 13771, for each new regulation that the
Department proposes for notice and comment or otherwise promulgates
that is a significant regulatory action under Executive Order 12866 and
that imposes total costs greater than zero, it must identify two
deregulatory actions. For FY 2020, any new incremental costs associated
with a new regulation must be fully offset by the elimination of
existing costs through deregulatory actions. The designation of this
rule under Executive Order 13771 will be informed by public comments.
We have also reviewed these regulations under Executive Order
13563, which supplements and explicitly reaffirms the principles,
structures, and definitions governing regulatory review established in
Executive Order 12866. To the extent permitted by law, Executive Order
13563 requires that an agency--
(1) Propose or adopt regulations only upon a reasoned determination
that their benefits justify their costs (recognizing that some benefits
and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society,
consistent with obtaining regulatory objectives and taking into
account, among other things, and to the extent practicable, the costs
of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select
those approaches that maximize net benefits (including potential
economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather
than the behavior or manner of compliance a regulated entity must
adopt; and
(5) Identify and assess available alternatives to direct
regulation, including economic incentives--such as user fees or
marketable permits--to encourage the desired behavior, or providing
information that enables the public to make choices.
Executive Order 13563 also requires an agency ``to use the best
available techniques to quantify anticipated present and future
benefits and costs as accurately as possible.'' The Office of
Information and Regulatory Affairs of OMB has emphasized that these
techniques may include ``identifying changing future compliance costs
that might result from technological innovation or anticipated
behavioral changes.''
The Department has assessed the potential costs and benefits, both
quantitative and qualitative, of this regulatory action, and we are
issuing this interim final rule only on a reasoned determination that
its benefits justify its costs. In choosing among alternative
regulatory approaches, we selected those approaches that would maximize
net benefits. Based on the analysis that follows and the reasons stated
elsewhere in this document, the Department believes that this interim
final rule is consistent with the principles in Executive Order 13563.
We also have determined that this regulatory action does not unduly
interfere with State, local, or Tribal governments in the exercise of
their governmental functions.
In this regulatory impact analysis, we discuss the need for
regulatory action, the potential costs and benefits, net budget
impacts, assumptions, limitations, and data sources, as well as
regulatory alternatives we considered.
Elsewhere, under Paperwork Reduction Act of 1995, we identify and
explain burdens specifically associated with information collection
requirements.
1. Need for Regulatory Action and Analysis of Benefits
The Department is issuing this interim final rule to clarify the
provision of equitable services under section 18005 of the CARES Act.
More specifically, this interim final rule specifies the measures that
LEAs may use to determine the proportional share of CARES Act funds
available for equitable services to students and teachers in non-public
schools. This interim final rule is meant to provide flexibility and
clarify administration for SEAs and LEAs so that the equitable services
provisions are implemented consistent with the requirements of the
CARES Act and that funds may be used to provide services to both public
and non-public students and teachers in a timely manner while imposing
as little burden and costs on program participants as possible. In
doing so, it reconciles applicable equitable services provisions of the
CARES Act in a manner that is reasonable, offers appropriate
flexibility, and ensures that CARES Act programs serve public and non-
public school students equitably. In particular, the rule expands the
options available for determining the proportional share of CARES Act
funds that must be made available for equitable services by allowing an
LEA to
[[Page 39485]]
select a measure based on the students and schools it will serve with
CARES Act funds. The Department believes that these benefits outweigh
any associated costs.
As discussed elsewhere in this preamble, in light of the current
national emergency and the importance of ensuring that LEAs provide
services immediately under the CARES Act to students and teachers in
schools--both public and non-public--consistent with the requirements
of law, the normal rulemaking process would be impracticable and
contrary to the public interest. Moreover, in light of clear evidence
that a significant number of SEAs have indicated their intention to
implement the equitable services provisions of the CARES Act in a
manner that the Department deems contrary to statutory requirements,
which means that thousands of LEAs in these States may be in the
process of violating the CARES Act as it pertains to equitable
services, it is essential to clarify those requirements as soon as
possible.
2. Analysis of Costs
Section 18005 of the CARES Act is intended to ensure that LEAs
receiving funds under the GEER Fund or ESSER Fund provide equitable
services to students and teachers in non-public schools, as determined
in consultation with representatives of non-public schools. In
accordance with OMB Circular A-4 (available at www.whitehouse.gov/sites/default/files/omb/assets/omb/circulars/a004/a-4.pdf), we are
evaluating the costs and benefits of this interim final rule compared
to a pre-statutory baseline. This rule defines the measures that may be
used to determine the proportional share of funds that LEAs must
reserve for equitable services but does not interpret or otherwise
alter other statutory requirements related to equitable services.
Affected LEAs will likely face some administrative costs to implement
these statutory requirements, but the Department largely lacks data to
quantify these costs. However, the Department expects that these
entities will largely experience benefits exceeding these
administrative costs. Because an LEA has flexibility in the manner in
which it provides equitable services under the CARES Act programs,
including the extent to which it relies on processes and procedures
previously established to consult with non-public school officials and
provide services under ESEA programs, and because the Department lacks
data on the extent to which non-public schools may choose to
participate in equitable services under the CARES Act, the Department
does not know the exact costs attributable to the statutory
requirements. Moreover, LEAs are permitted to reserve funds, from the
proportional share determined in accordance with this interim final
rule, to pay the reasonable and necessary costs of administering
equitable services under the CARES Act.
In the following paragraphs, we estimate the costs of determining
the proportional share in accordance with the interim final rule, while
recognizing that those costs may be financed using CARES Act program
funds.\6\
---------------------------------------------------------------------------
\6\ For the purpose of this analysis, we assume that an LEA
receiving funds under the GEER Fund and ESSER Fund will use the same
measure to determine the proportional share for each program.
---------------------------------------------------------------------------
Implementation Costs for SEAs, LEAs, Affected Schools, and the
Government
Costs of Determining the Proportional Share for LEAs Serving Students
and Teachers in Both Title I and Non-Title I Schools
For LEAs using CARES Act funds to serve students and teachers in
both Title I and non-Title I schools, the interim final rule requires
the use of enrollment data to determine the proportional share. For the
majority of these LEAs, enrollment data should already be available for
non-public schools that participate in equitable services under ESEA
programs other than Title I. Equitable services under those programs
are governed by section 8501 of the ESEA, which requires in determining
expenditures for equitable services that an LEA take into account the
number of non-public school students to be served. In complying with
this requirement, an LEA customarily obtains enrollment data from
participating non-public schools. For such LEAs, complying with the
interim final rule accordingly imposes no additional burden with
respect to those schools.
If an LEA does not already obtain enrollment data in this manner
from a non-public school that will participate in equitable services
under the CARES Act programs, we expect that, in a majority of States,
the LEA can obtain the data immediately from the SEA, particularly the
approximately 35 SEAs that collect enrollment data from their non-
public schools on an annual basis.\7\ For LEAs in this circumstance,
the interim final rule similarly imposes no burden, and it imposes a
negligible burden on affected SEAs, which would merely need to share
previously collected enrollment data through long-established means of
communication with their LEAs.
---------------------------------------------------------------------------
\7\ See https://www2.ed.gov/about/inits/ed/non-public-education/regulation-map/index.html.
---------------------------------------------------------------------------
For LEAs that do not already have enrollment data for one or more
participating non-public schools and that cannot obtain such data from
the SEA, complying with the interim final rule entails obtaining the
data directly from those schools through the consultation process. The
Department believes this will be minimally burdensome on these LEAs,
which we estimate to include 20 percent of affected LEAs. Specifically,
we estimate that an LEA will have on average two non-public schools for
which enrollment data are needed and that it will take on average 0.5
total hours to obtain the data from those schools. At $35 per hour for
LEA staff, the average cost is an estimated $18 per LEA. Assuming that
10,125 LEAs (or 75 percent of an estimated 13,500 LEAs with attendance
areas) are subject to the equitable services provisions of the CARES
Act and that 7,595 (or 75 percent) of these LEAs will choose to serve
students and teachers in both Title I and non-Title I schools,
approximately 1,520 LEAs (20 percent of 7,595 affected LEAs) would bear
this cost, for a total estimated cost of $27,360.
Costs of Determining the Proportional Share for LEAs Serving Title I
Schools Only
For LEAs using CARES Act funds to serve students and teachers only
in Title I schools, the interim final rule provides the option to
determine the proportional share using one of two poverty alternatives.
The first is simply to use as the proportional share for CARES Act
purposes the proportional share of Title I funds available for
equitable services under section 1117(a)(4)(A) of the ESEA, which is
determined based on residence of students from low-income families in
participating Title I public school attendance areas. Using this pre-
existing alternative would of course impose no additional burden on
LEAs.
The second alternative is to determine the proportional share for
equitable services using data on the number of students from low-income
families who attend participating Title I schools and participating
non-public elementary and secondary schools in the LEA. Under this
alternative, an LEA may choose to obtain poverty counts for students in
non-public schools that wish to participate. We estimate that 12.5
percent of affected LEAs will implement this alternative by obtaining
poverty counts and that it will take an LEA on average 240 hours to
obtain those counts. At $35 per hour for LEA staff, the average cost is
an estimated $8,400
[[Page 39486]]
per LEA. Assuming that 2,530 LEAs (or 25 percent of the estimated
10,125 LEAs subject to the equitable services provisions of the CARES
Act) will choose to serve students and teachers in Title I schools
only, approximately 315 LEAs (12.5 percent of 2,530 affected LEAs)
would bear this cost, for a total estimated cost of $2,646,000.
As discussed elsewhere in this document, LEAs may also implement
this poverty alternative using a proportionality method, wherein the
LEA applies the average poverty rate of its Title I schools to the
enrollment in non-public schools that will participate in a CARES Act
program to generate poverty estimates for those schools. LEAs that
choose to implement this alternative using a proportionality method
would accordingly need to have enrollment data from participating non-
public schools, but not poverty data--that is, the same enrollment data
required of LEAs serving students and teachers in both Title I and non-
Title I schools to determine the proportional share. As discussed
elsewhere in this analysis with respect to those LEAs, enrollment data
are generally already available. We estimate that only 20 percent of
affected LEAs would need to obtain those data from one or more
participating non-public schools, and that it would take on average 0.5
hours to obtain the data. At $35 per hour for LEA staff, the average
cost is an estimated $18 per LEA. Assuming that 315 LEAs (or 12.5
percent of the estimated 2,530 LEAs that will choose to serve students
and teachers in Title I schools only) will choose to implement this
poverty alternative using a proportionality method or, as permitted,
use enrollment data to determine the proportional share, approximately
65 LEAs (20 percent of 315 affected LEAs) would bear this cost, for a
total estimated cost of $1,170.
3. Net Budget Impacts
We estimate that the discretionary elements of this interim final
rule will not have an impact on the Federal budget. This rule specifies
the measures that LEAs may use to determine the proportional share of
funds for equitable services under the CARES Act programs but does not
change the amount of funding available for such programs. We anticipate
that $16.2 billion in CARES Act funds will be disbursed in 2020, and
therefore estimate $16.2 billion in transfers in 2020 relative to a
pre-statutory baseline.
4. Accounting Statement
As required by OMB Circular A-4, in the following table we have
prepared an accounting statement showing the classification of the
impacts associated with the provisions of these regulations in 2020.
Impacts classified as transfers are from the Federal Government to
LEAs.
Accounting Statement: Classification of Estimated Impacts
[In millions]
------------------------------------------------------------------------
Category Benefits
------------------------------------------------------------------------
Clarity and flexibility in Not Quantified.
administration of equitable services.
------------------------------------------------------------------------
Costs
------------------------------------------------------------------------
Determining proportional share for $2.7.
equitable services.
------------------------------------------------------------------------
Transfers
------------------------------------------------------------------------
Providing educational services in $16,182.
preparation for and response to COVID-
19, including for students and teachers
in non-public schools.
------------------------------------------------------------------------
5. Regulatory Alternatives Considered
As an alternative to the options for determining the proportional
share provided in this interim final rule, the Department considered
requiring all LEAs subject to equitable services requirements in the
CARES Act to determine the proportional share using enrollment data.
Ultimately, we determined that such a requirement could be inequitable
if an LEA chooses to serve only its Title I schools and therefore uses
its Title I proportional share as the proportional share for CARES Act
purposes.
Clarity of the Regulations
Executive Order 12866 and the Presidential memorandum ``Plain
Language in Government Writing'' require each agency to write
regulations that are easy to understand.
The Secretary invites comments on how to make these regulations
easier to understand, including answers to questions such as the
following:
Are the requirements in the regulations clearly stated?
Do the regulations contain technical terms or other
wording that interferes with their clarity?
Does the format of the regulations (grouping and order of
sections, use of headings, paragraphing, etc.) aid or reduce their
clarity?
Would the regulations be easier to understand if we
divided them into more (but shorter) sections? (A ``section'' is
preceded by the symbol ``Sec. '' and a numbered heading; for example,
Sec. 76.665.)
Could the description of the regulations in the
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in
making the regulations easier to understand? If so, how?
What else could we do to make the regulations easier to
understand?
To send any comments that concern how the Department could make
these regulations easier to understand, see the instructions in the
ADDRESSES section.
Regulatory Flexibility Act Certification
The Regulatory Flexibility Act does not apply to this rulemaking
because there is good cause to waive notice and comment under 5 U.S.C.
553.
The Secretary certifies that these interim final requirements would
not have a significant economic impact on a substantial number of small
entities. Under the U.S. Small Business Administration's Size
Standards, small entities include small governmental jurisdictions such
as cities, towns, or school districts (LEAs) with a population of less
than 50,000. Although the majority of LEAs that receive CARES Act funds
and are subject to CARES Act equitable services requirements would
qualify as small entities under this definition, this rule will benefit
small entities by providing multiple options for determining the
proportional share of funds that must be reserved for equitable
services and clarifying that such entities have discretion to select
the option that
[[Page 39487]]
minimizes costs and burdens. As discussed in the Regulatory Impact
Analysis, unless an LEA seeks to serve only Title I schools and
determine the proportional share for equitable services by obtaining
poverty counts based on student enrollment, the costs associated with
the interim final rule are minimal. We estimate that the vast majority
of LEAs (9,810 LEAs out of an estimated 10,125 LEAs subject to
equitable services requirements) will choose to employ a minimally
burdensome option in determining the proportional share. Moreover, for
any small-entity LEA that chooses to serve only Title I schools and
determine the proportional share for equitable services by obtaining
poverty counts based on student enrollment, we presume the benefit of
obtaining accurate poverty counts outweighs any associated costs.
Finally, we note that all costs entailed in administering the equitable
services provisions of the CARES Act may be paid for with funds
received under the respective CARES Act programs; consequently, neither
the statutory CARES Act equitable services requirements nor the
provisions of this interim final rule impose any uncompensated costs on
small entities.
Paperwork Reduction Act of 1995
As part of its continuing effort to reduce paperwork and respondent
burden, the Department provides the general public and Federal agencies
with an opportunity to comment on proposed and continuing collections
of information in accordance with the Paperwork Reduction Act of 1995
(PRA) (44 U.S.C. 3506(c)(2)(A)). This helps ensure that the public
understands the Department's collection instructions, respondents
provide the requested data in the desired format, reporting burden
(time and financial resources) is minimized, collection instruments are
clearly understood, and the Department can properly assess the impact
of collection requirements on respondents.
A Federal agency may not conduct or sponsor a collection of
information unless OMB approves the collection under the PRA and the
corresponding information collection instrument displays a currently
valid OMB control number. Notwithstanding any other provision of the
law, no person is required to comply with, or is subject to penalty for
failure to comply with, a collection of information if the collection
instrument does not display a currently valid OMB control number.
Information collections related to the CARES Act programs are
included in paperwork clearances OMB control numbers 1810-0741 and
1810-0743. The Department is currently requesting public comment on
these clearances. Those clearances do not address the information
collection applicable to this rule. Accordingly, the Department is
requesting a separate emergency paperwork clearance from OMB on the
data collections associated with this interim final rule and will add
the burden to the clearances currently out for public comment.
As discussed in the Analysis of Costs and Benefits section of the
Regulatory Impact Statement in these interim final regulations, for
LEAs that do not already have enrollment data for one or more
participating non-public schools and that cannot obtain such data from
the SEA, complying with the interim final regulations entails obtaining
the data directly from those schools through the consultation process.
The Department believes this will be minimally burdensome on these
LEAs, which we estimate to include 20 percent of affected LEAs.
Specifically, we estimate that an LEA will have on average two non-
public schools for which enrollment data are needed and that it will
take on average 0.5 total hours to obtain the data from those schools.
At $35 per hour for LEA staff, the average cost is an estimated $18 per
LEA. Assuming that 10,125 LEAs (or 75 percent of an estimated 13,500
LEAs with attendance areas) are subject to the equitable services
provisions of the CARES Act and that 7,595 (or 75 percent) of these
LEAs will choose to serve students and teachers in both Title I and
non-Title I schools, approximately 1,520 LEAs (20 percent of 7,595
affected LEAs) would bear this cost, for a total estimated cost of
$27,360.
For LEAs using CARES Act funds to serve students and teachers only
in Title I schools, the interim final regulations provide the option to
determine the proportional share using one of two poverty alternatives;
however, only one of these alternatives would impose additional burden.
For the alternative that imposes additional burden, LEAs would
determine the proportional share for equitable services using data on
the number of students from low-income families who attend
participating Title I schools, which are already available, and
participating non-public elementary and secondary schools in the LEA.
Under this alternative, an LEA may choose to obtain poverty counts for
students in non-public schools that wish to participate. We estimate
that 12.5 percent of affected LEAs will implement this alternative by
obtaining poverty counts and that it will take an LEA on average 240
hours to obtain those counts. At $35 per hour for LEA staff, the
average cost is an estimated $8,400 per LEA. Assuming that 2,530 LEAs
(or 25 percent of the estimated 10,125 LEAs subject to the equitable
services provisions of the CARES Act) will choose to serve students and
teachers in Title I schools only, approximately 315 LEAs (12.5 percent
of 2,530 affected LEAs) would bear this cost, for a total estimated
cost of $2,646,000.
As discussed elsewhere in this document, LEAs may also implement
this poverty alternative using a proportionality method, wherein the
LEA applies the average poverty rate of its Title I schools to the
enrollment in non-public schools that will participate in a CARES Act
program to generate poverty estimates for those schools. LEAs that
choose to implement this alternative using a proportionality method
would accordingly need to have enrollment data from participating non-
public schools, but not poverty data--that is, the same enrollment data
required of LEAs serving students and teachers in both Title I and non-
Title I schools to determine the proportional share. With respect to
those LEAs, enrollment data are generally already available. We
estimate that only 20 percent of affected LEAs would need to obtain
those data from one or more participating non-public schools, and that
it would take on average 0.5 hours to obtain the data. At $35 per hour
for LEA staff, the average cost is an estimated $18 per LEA. Assuming
that 315 LEAs (or 12.5 percent of the estimated 2,530 LEAs that will
choose to serve students and teachers in Title I schools only) will
choose to implement this poverty alternative using a proportionality
method or, as permitted, use enrollment data to determine the
proportional share, approximately 65 LEAs (20 percent of 315 affected
LEAs) would bear this cost, for a total estimated cost of $1,170.
Intergovernmental Review
The CARES Act programs covered by the interim final rule are not
subject to Executive Order 12372 and the regulations in 34 CFR part 79.
Accessible Format: Individuals with disabilities can obtain this
document in an accessible format (e.g., braille, large print,
audiotape, or compact disc) on request to the program contact person
listed under FOR FURTHER INFORMATION CONTACT.
Electronic Access to This Document: The official version of this
document is the document published in the Federal Register. You may
access the official edition of the Federal Register and the Code of
Federal Regulations at www.govinfo.gov. At this site you can
[[Page 39488]]
view this document, as well as all other documents of this Department
published in the Federal Register, in text or portable document format
(PDF). To use PDF you must have Adobe Acrobat Reader, which is
available free at the site.
You may also access documents of the Department published in the
Federal Register by using the article search feature at:
www.federalregister.gov.
Specifically, through the advanced search feature at this site, you
can limit your search to documents published by the Department.
List of Subjects in 34 CFR Part 76
Accounting, Administrative practice and procedure, American Samoa,
Education, Grant programs--education, Guam, Northern Mariana Islands,
Pacific Islands Trust Territory,Prisons, Private schools, Reporting and
recordkeeping requirements, Virgin Islands, Youth organizations.
Betsy DeVos,
Secretary of Education.
For the reasons discussed in the preamble, the Secretary amends
title 34 of the Code of Federal Regulations by revising part 76 to read
as follows:
PART 76--STATE-ADMINISTERED PROGRAMS
0
1. The authority citation for part 76 continues to read as follows:
Authority: 20 U.S.C. 1221e-3 and 3474, unless otherwise noted.
Sec. Sec. 76.663 and 76.664 [Reserved]
0
2. Add reserved Sec. Sec. 76.663 and 76.664.
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3. Add an undesignated center heading after reserved Sec. 76.664 to
read as follows:
Equitable Services Under the CARES Act
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4. Section 76.665 is added to read as follows:
Sec. 76.665 Providing equitable services to students and teachers in
non-public schools.
(a) In general. (1) A local educational agency (LEA) receiving
funds under a CARES Act program must provide equitable services to
students and teachers in non-public elementary and secondary schools in
the LEA ``in the same manner'' as provided under section 1117 of the
Elementary and Secondary Education Act of 1965 (ESEA), as determined in
consultation with representatives of non-public schools.
(2) For purposes of this section, the CARES Act programs are the
Governor's Emergency Education Relief (GEER) Fund (Section 18002),
formula grants to LEAs under the Elementary and Secondary School
Emergency Relief (ESSER) Fund (Section 18003(c)), and ESSER SEA Reserve
(Section 18003(e)).
(b) Consultation. (1) An LEA must promptly consult with
representatives of non-public elementary and secondary schools during
the design and development of the LEA's plans to spend funds from a
CARES Act program and before the LEA makes any decision affecting the
opportunities of students and teachers in non-public schools to benefit
from those funds. As provided in section 1117(b)(1) of the ESEA, the
LEA and non-public school officials shall both have the goal of
reaching timely agreement on how to provide equitable and effective
programs for non-public school students and teachers.
(2) Consultation must occur in accordance with section 1117(b) of
the ESEA, except to the extent inconsistent with the CARES Act and this
section, such as section 1117(b)(1)(E) and (J)(ii).
(c) Determining proportional share. (1) To determine the
proportional share of funds for equitable services to students and
teachers in non-public elementary and secondary schools for each CARES
Act program, an LEA must use one of the following measures. The LEA
need not use the same measure for each CARES Act program.
(i) An LEA using all its funds under a CARES Act program to serve
only students and teachers in public schools participating under Title
I, Part A of the ESEA may calculate the proportional share in
accordance with paragraph (c)(1)(ii) of this section or by using--
(A) The proportional share of Title I, Part A funds it calculated
under section 1117(a)(4)(A) of the ESEA for the 2019-2020 school year;
or
(B) The number of children, ages 5 through 17, who attend each non-
public school in the LEA that will participate under a CARES Act
program and are from low-income families compared to the total number
of children, ages 5 through 17, who are from low-income families in
both Title I schools and participating non-public elementary and
secondary schools in the LEA.
(ii) Any other LEA must calculate the proportional share based on
enrollment in participating non-public elementary and secondary schools
in the LEA compared to the total enrollment in both public and
participating non-public elementary and secondary schools in the LEA.
(2) An LEA must determine the proportional share of funds available
for services for students and teachers in non-public elementary and
secondary schools based on the total amount of CARES Act funds received
by the LEA under a CARES Act program prior to any allowable
expenditures or transfers by the LEA.
(3) An LEA using funds from a CARES Act program in Title I schools
under paragraph (c)(1)(i) of this section must comply with the
supplement not supplant requirement in section 1118(b) of the ESEA,
which would prohibit the LEA from allocating CARES Act funds to Title I
schools and then redirecting State or local funds to non-Title I
schools, among other things.
(d) Equity. (1) Educational services and other benefits for
students and teachers in non-public elementary and secondary schools
must be equitable in comparison to services and other benefits for
public school students and teachers participating in CARES Act
programs, and must be provided in a timely manner.
(2) The measure an LEA uses to determine the proportional share
under paragraph (c)(1) of this section does not limit the obligation of
the LEA to provide the opportunity to receive services to students and
teachers in any non-public elementary or secondary school in the LEA.
(e) Secular, neutral, and nonideological. Educational services and
benefits, including materials and equipment, an LEA provides to
students and teachers in non-public elementary and secondary schools
under the CARES Act programs must be secular, neutral, and
nonideological.
(f) Public control of funds. An LEA must--
(1) Maintain control of CARES Act funds;
(2) Keep title to and exercise continuing administrative control of
all materials, equipment, and property purchased with CARES Act funds;
and
(3) Provide services with CARES Act funds directly or through a
contract with a public or private entity.
(Authority: 20 U.S.C. 6320, 6321(b); section 18005 of the CARES Act)
Sec. Sec. 76.666 through 76.669 [Reserved]
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5. Add reserved Sec. Sec. 76.666 through 76.669.
[FR Doc. 2020-14224 Filed 6-30-20; 8:45 am]
BILLING CODE 4000-01-P