Navigating ESSER Funds in an Ever-Changing COVID-19 Landscape

June 2, 2021

Although the pandemic is seemingly subsiding in the U.S., public school districts in Ohio still face the challenge of how to use multiple forms of pandemic-related government funding. Notably, the task of navigating the permissible uses of COVID-19 funds, and the procedures school districts must follow with respect to them, pose a number of complex legal issues.

The Funds

By way of background, the federal government has made three main sources of funds available to state educational agencies, which local school districts may in turn apply for and use for certain enumerated purposes.  These federal funds include:

• The Elementary and Secondary School Emergency Relief Fund I (“ESSER I”), as authorized by Section 18003 of Division B of the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, enacted on March 27, 2020 and available for obligation by school districts through September 30, 2021. The general purpose of ESSER I funds is to provide funding for the prevention, preparation for, and response to the COVID-19 pandemic;
• The Elementary and Secondary School Emergency Relief Fund II (“ESSER II”), as authorized by the Coronavirus Response and Relief Supplemental Appropriations (“CRRSA”) Act, enacted on December 27, 2020 and available for obligation by school districts through September 30, 2022. The general purpose of ESSER II funds is to provide funding to address learning loss, preparation for the reopening of schools, as well as projects to improve the air quality in school buildings; and
• The American Rescue Plan Elementary and Secondary School Emergency Relief Fund (“ARP ESSER”), as authorized by the American Rescue Plan (“ARP”) Act, enacted on March 11, 2021 and available for obligation by school districts through September 30, 2023. The general purpose of ARP ESSER funds is to provide funding to address learning loss as well as the reopening and operation of schools in a way that maintains the health and safety of students, educators, and staff.

Permissible Uses of Funds

According to the U.S. Department of Education (“U.S. DOE”), a school district is permitted to use the various funds for a “wide range of activities.”  However, there are parameters. With respect to ESSER funds, the primary question most schools have asked is, “What kinds of programs, projects, and/or purchases can our district use the various funds for?”  Importantly, each of the funds can be used for the same allowable purposes. However, for ARP ESSER funds, a school district must do the following:

• Reserve at least twenty percent (20%) of its total ARP ESSER award to address learning loss through the implementation of evidence-based interventions;
• Ensure that such interventions respond to the students’ academic, social, and emotional needs; and
• Address the disproportionate impact of COVID-19 on underrepresented student groups, including students from low-income families, students of color, children with disabilities, English language learners, migratory students, students experiencing homelessness, and youth in foster care.

Permissible uses of ESSER funds include, but are not limited to, the following:

• Any activities authorized by the Elementary and Secondary Education Act , the Individuals with Disabilities Education Act , the Adult Education and Family Literacy Act , the Perkins Career and Technical Education Act ; and the McKinney-Vento Homeless Assistance Act;
• Repairing and improving school facilities to reduce the risk of virus transmission and exposure to environmental health hazards, which includes remodeling, alterations, and renovations necessary to prevent, prepare for, and respond to COVID-19. However, the U.S. DOE discourages the use of funds for new construction projects, if the use of these funds for new construction limits a school district’s ability to support other essential needs or initiatives;
• Activities to improve indoor air quality, such as upgrades to a school facility’s HVAC system as well as related projects that promote social distancing and safe in-person instruction;
• Activities to address the unique needs of children from low-income families, children with disabilities, English language learners, racial and ethnic minorities, students experiencing homelessness, and foster care youth;
• The purchase of personal protective equipment, cleaning and sanitizing materials, portable air purifiers, as well as emergency supplies necessary to adequately respond to COVID-19;
• Providing COVID-19 testing and vaccinations to district educators, staff, and eligible students;
• Implementing evidence-based interventions to support students who have suffered lost instructional time due to COVID-19;
• Activities to support students’ social, emotional, mental health, and academic needs, including the hiring of support personnel such as nurses, counselors, and social workers to effectuate these goals;
• The purchase of educational technology, including hardware, software, connectivity, assistive technology, and adaptive equipment, for students that aids in regular and substantive educational interaction between students and their classroom instructors, including students from low-income families and children with disabilities;
• To provide support for summer learning and enrichment programs; and
• Other activities that are necessary to maintain operation of and continuity of services, including continuing to employ existing or hiring new school staff.

Other Legal Issues

School districts must also be cognizant of various state and federal laws when using ESSER funds.  For instance, if schools use funds for renovation, repair, improvement, and/or construction projects, they must comply with both state and federal procurement laws. As such, schools must follow the dictates of Ohio Revised Code 3313.46 as well as federal procurement laws, including but not limited to, those identified in the Uniform Grant Guidance. Schools must also comply with federal prevailing wage laws for all contracts over $2,000 for the construction, alteration, or repair of public buildings and must comply with the Americans with Disabilities Act as well as state and local design standards. Further, schools must track and separately account for each of the ESSER funds as well as describe, identify, and maintain in their records the COVID-19 “connection” for which the various funds are used.

Moreover, districts should be mindful of the timelines associated with any projects under these grant funds to ensure they are consistent with the timelines associated with the ESSER funds.  Likewise, school districts should keep in mind that certain activities may be subject to approval by the Ohio Department of Education.

If you have questions regarding the allowable use of funds under ESSER I, ESSER II, or ARP ESSER, please contact us here.

James McWeeney is a partner at Walter Haverfield who focuses his practice on education law, labor and employment and litigation. He can be reached at jmcweeney@walterhav.com or at 216-928-2959.

Sara G. Katz is an associate at Walter Haverfield who focuses her practice on education law. She can be reached at skatz@walterhav.com or at 614.246.2274.