July 1, 2020

Two issues of importance:
  • New federal rule changes calculation of CARES Act funds to private schools
  • Concerns arise over state instructional day requirement
Last week the U.S. Department of Education (USDE) issued an interim final rule further outlining expectations for school districts in distributing federal CARES Act funds for equitable services to private schools. In response, the Pennsylvania Department of Education (PDE) is expected to provide further direction to school districts.
In a separate issue, PSBA is encouraging PDE to seek a solution to concerns regarding the use of remote and hybrid delivery systems for purposes of counting the required 180 days of school or 900/990 hours of instruction.
New rule changes calculation set in April for private schools

The USDE's Interim Final Rule, which was issued on June 25, 2020 and becomes effective immediately, outlines how school districts must calculate the emergency funds. The new rule is a change from guidance on equitable services under the CARES Act issued on April 30. In that guidance, the USDE advised districts to calculate the funds that must be reserved to provide equitable services to all private school students based on enrollment data in a district.

The guidance issued by USDE in April was non-binding and did not have the force of law. However, the interim final rule issued in June has the full force of law and is effective immediately, although there is still a process for the public to provide comment for 30 days. 

Under the new rule, if a school district chooses to use CARES Act funding for students in all its public schools, it still must calculate the funds for equitable services based on all students enrolled in private schools in the district. However, the rule also allows a district to use CARES Act funding only for in its Title I schools serving low-income students. If a district chooses to distribute aid only to Title I schools, the district has two options:
  1. Calculate the funds for equitable services based on the total number of low-income students in Title I and in participating private schools; or
  2. Calculate the funds using the district's Title I, Part A share from the 2019-20 school year.
If a district uses one of the low-income student options, it must not violate the Title I supplement-not-supplant requirement in the ESEA. That is, the district cannot divert state or local funds from its Title I schools because they receive CARES Act funds.

PDE current guidance
Pennsylvania has received $523.8 million in emergency, one-time federal CARES funds to help schools respond to COVID-19 impacts. PDE recommended a calculation for distribution of funds to private schools that differs from the non-binding guidance issued by USDE in April. In issuing its own guidance, PDE noted that the federal guidance advised that funds must be reserved to provide equitable services to all private schools, regardless of income. PDE suggested this is inconsistent with the CARES Act goal of ensuring that the emergency funds reach the most vulnerable students.
With the new interim final rule now effective, PDE is looking at the next steps necessary.  PDE's current guidance expressly challenges and disagrees with the USDE interpretation of how the CARES Act directs equitable services proportions to be calculated. However, PDE has not yet updated that guidance in response to the USDE interim final rule. School districts should watch for updated PDE guidance in the near future, which it is anticipated will explain the legal basis for any continuing disagreement with the interpretations reflected in the USDOE interim final rule. Although in the view of PSBA the interpretation reflected in PDE's current guidance more closely tracks the text of the CARES Act, at this point it is unknown whether such disagreements will lead to legal challenges in court or how such challenges are likely to be resolved. It is advised that districts put off committing to a particular approach to calculating equitable services at least until updated PDE guidance is available.
PSBA seeks solution to concerns with the instructional day rule

On another important matter, PSBA is encouraging PDE to seek a solution to concerns raised related to the use of remote and hybrid delivery systems in meeting the required days/hours of instruction. As school districts are working on fall reopening plans that could include traditional, fully remote and combinations of hybrid models in order to maintain continuity of education, there are questions and concerns as to whether the use of models other than the in-person traditional way of delivering instruction counts towards the minimum school year of 180 days or 900/990 hours of instruction.
The problem
Unfortunately, provisions added to the Public School Code in recent years have cast considerable doubt upon the legal authority of traditional public schools to deliver instruction that counts towards the minimum school year of 180 instructional days or 900/990 hours of instruction in a manner other than the in-person, traditional classroom model.
Act 82 of 2012 authorizes multi-district collaboratives to deliver courses using various forms of teleconferencing, internet and other electronic means to students choosing to participate. Most recently, Act 64 of 2019 authorized the use of flexible instructional days or "FIDs" when school buildings must close for various reasons for up to a maximum of five days, provided that an application to do so is submitted by a June 1 annual deadline and is approved by the Department. Conspicuously absent from the School Code is any other express authority for a school entity (other than a cyber charter school), to deliver instruction in such ways on its own.
Because no other specific authorization exists in the School Code, the question being posed now is whether these are the only circumstances in which such instructional delivery flexibility may count as instructional time for subsidy purposes. In plain terms, the question becomes: Because the law does not address any expansion of the use of the flexibility, is there authority to do so on an expanded basis which will count toward the 180-day minimum?
PSBA is seeking a stop-gap solution that would provide needed flexibility and clarity for school districts in the 2020-2021 school year.
As changes happen regarding the calculation of CARES Act funds or with the 180-day issue, PSBA will keep you updated.