ESSER Fund Frequently Asked QuestionsElementary and Secondary School Relief (ESSER) fund frequently asked questions and responses.
1. Do LEAs need to apply for ESSER funds?
Yes. The ESSER funding includes formula funds (90% of the state’s full allocation) which will be allocated to local educational agencies (LEAs) based on Title I shares. LEAs will need to apply for their allocation of ESSER funds. The California Department of Education (CDE) is working on the application and will notify LEAs as soon as it is available. The process for distribution of the remaining state reserve/set-aside funds (up to 10% of the total state allocation) has not yet been finalized by the Legislature and Governor.
2. Will CDE post preliminary allocations?
Yes, the CDE has posted LEAs’ preliminary allocations on the CARES Act ESSER Fund Allocations web page.
3. Are LEAs that did not receive Title I funds in the most recent fiscal year eligible for ESSER Funds?
With one exception, as described below, no, LEAs that did not receive Title I funds are not eligible to receive ESSER funds. LEAs receive ESSER funds based on their relative share of Title I funds. If an LEA did not receive Title I funds in the most recent fiscal year – either because it was not eligible or because it declined funding – then it would not generate a share of ESSER funds.
The exception is charter schools that will be new in the 2020–21 school year (and thus did not receive a Title I allocation for 2019–20), then federal law requires that CDE hold back a reasonable portion of its ESSER funds in order to provide those charter schools with allocations once their Title I enrollments are known.
4. Do any supplement not supplant requirements apply to ESSER funds?
No. The ESSER Fund does not include a local supplement, not supplant requirement. Thus, there is no prohibition on an LEA using ESSER funds to pay expenses formerly funded by another source. However, there is a requirement that a state maintain support for elementary and secondary education and higher education, in fiscal years 2020 and 2021, at least at the average level of the three previous fiscal years. Thus, a state should not reduce its state aid (and replace it with ESSER funds) if doing so would cause the state not to comply with that maintenance-of-effort requirement. The U.S. Department of Education (ED) can waive this requirement for states that have experienced a precipitous decline in financial resources.
5. What are the allowable uses of ESSER funds?
LEAs can use ESSER funds for any activities authorized by the Elementary and Secondary Education Act of 1965 (ESEA) as amended by the Every Student Succeeds Act of 2000 (ESSA), IDEA, the Adult Education and Family Literacy Act, the Perkins CTE Act, or the McKinney-Vento Homeless Assistance Act. Additional information about the allowable uses of funds can be found on the ESSER Fund Allowable Uses webpage.
In addition to these, LEAs can use funds for the following activities:
- Coordination of preparedness and response efforts of LEAs with State, local, Tribal, and territorial public health departments, and other relevant agencies
- Providing principals and others school leaders with the resources necessary to address the needs of their individual schools
- Activities to address the unique needs of low-income children or students, children with disabilities, English learners, racial and ethnic minorities, students experiencing homelessness, and foster care youth, including how outreach and service delivery will meet the needs of each population
- Developing and implementing procedures and systems to improve the preparedness and response efforts of LEAs
- Planning for and coordinating on long-term closures (including on meeting IDEA requirements, how to provide online learning, and how to provide meals to students)
- Staff training and professional development on sanitation and minimizing the spread of infectious disease
- Purchasing supplies to sanitize and clean the facilities of LEA, including buildings operated by the LEA
- Purchasing educational technology (hardware, software, and connectivity) for students, that aids in the regular and substantive educational interaction between students and their classroom instructors, including low-income students and students with disabilities, which may include assistive or adaptive technology
- Mental health services and supports
- Summer learning and supplemental after-school programs, including providing classroom instruction or online learning during the summer months and addressing the needs of low-income students, students with disabilities, English learners, migrant students, students experiencing homelessness, and children in foster care
- Discretionary funds for school principals to address the needs of their individual schools
- Other activities that are necessary to maintain the operation and continuity of services in LEAs and to continuing the employment of their existing staff
6. How long do LEAs have to use ESSER funds?
ESSER funds are available for obligation by LEAs through September 30, 2022.
7. Must LEAs pay existing contracts in order to receive ESSER funds?
Section 18006 of the CARES Act requires entities that receive ESSER funds to continue to pay employees and contractors “to the greatest extent practicable.”
8. Can LEAs use funds to reimburse expenses that are being incurred this fiscal year, such as devices for distance learning.
Yes. The U.S. Department of Education (ED) has stated that LEAs may use the funds for expenses incurred beginning March 13, the date on which the President declared a national emergency.
9. Which funds from the CARES Act are subject to the equitable services requirement? (Added 22-Jul-2020)
The CARES Act specifies that LEAs that receive funding from ESSER and GEER funds, must provide related equitable services. (Section 18005(a) of the CARES Act).
The state budget for 2020-21 that was approved by the Governor and the Legislature at the end of June provided all of the $355 million California received for GEER to LEAs as part of the larger $5.3 billion effort to support student academic achievement and mitigate learning loss related to COVID-19 school closures. The budget also directed most of funding from the ESSER state reserve to LEAs through $112.2 million to support nutrition services and $45 million for a competitive grant program to support and expand existing community schools. These funds are all subject to the equitable services in addition to the $1.4 billion funding formula driven funding to schools based on their Title I counts.
10. Does the requirement to provide equitable services to students and teachers in non-public (private) schools apply to activities supported by ESSER or GEER funds? (Updated 02-Feb-2021)
Yes. An LEA that receives ESSER or GEER funds must, for any activities supported by ESSER or GEER funds, provide related equitable services to students and teachers in non-public (private) schools “in the same manner” as provided under section 1117 (Title I, Part A) of the Elementary and Secondary Education Act of 1965 (ESEA). (Section 18005(a) of the CARES Act).
On June 25, 2020, Secretary DeVos and ED promulgated an Interim Final Rule (Rule), seeking to mandate how LEAs must calculate CARES Act funding for equitable services. On August 26, 2020, Judge James Donato of the United States District Court for the Northern District of California issued a preliminary injunction prohibiting ED and Secretary DeVos from applying and enforcing the Rule or ED’s prior guidance. On September 4, 2020, the United States District Court for the District of Columbia entered a final judgment invalidating the rule nationwide. Therefore, the Rule (and ED’s guidance issued prior to that date) must be treated as void.
On September 8, 2020, ED announced it would not appeal the various court decisions invalidating or enjoining the Rule regarding equitable services to private school students and teachers under the CARES Act. In a follow-up letter on September 25, 2020, ED said that it will not take any enforcement action against states or school districts that followed the guidance or the Rule while it was in effect. However, ED stated that moving forward, districts must calculate the proportional share for private schools according to the formula laid out in Section 1117 of the ESEA, as cited in Section 18005 of the CARES Act. ED’s letter notes that it will focus enforcement on ensuring that consultation requirements are met, alongside basic equitable services requirements. The agency urges districts to complete these new calculations and “provide equitable services to privates schools as soon as possible.”
Thus, LEAs should calculate funding for equitable services in the same manner as provided under Section 1117 of ESEA as discussed above, i.e., based solely on the number of students from low-income families attending private schools. (See next paragraph.) Districts should recalculate the allocation of funds for equitable services according to the statutory Title I formula and redirect to public school services any amount previously allocated in excess thereof.
Under guidance issued by ED on October 9, 2020, in calculating the proportional share of ESSER and GEER funds, an LEA may use the proportional share calculated for Title I purposes from either school year 2019–20 or 2020–21. ED also now affirms that, unlike Title I funds, the “supplement not supplant” requirement does not apply to ESSER and GEER funds. Further, ED’s guidance provides that while the proportional share for private schools should be calculated according to Title I of ESEA, the allowable use of funds is broader, and services may benefit all private school students and teachers at any private school, rather than just low-achieving students and their teachers. ED's guidance is at Providing Equitable Services to Students and Teachers in Non-Public Schools Under the CARES Act Program (PDF) .
ED’s September 25 letter said that the agency would not consider funds expended under the Rule prior to the court decision as being misallocated. This likely means that any expenditures obligated consistent with the Rule prior to September 8, 2020, are allowable. Districts are also encouraged to consult with their own legal counsel regarding any such decisions.
Additional information on determining the proportional share for equitable services under ESEA Section 1117 can be found by visiting the CDE’s Equitable Services Frequently Asked Questions web page.
11. How are disputes with private schools regarding the amount allocated to provide equitable services to be resolved? (Updated 02-Feb-2021)
Consistent with sections 8501 and 8503 of ESEA, a private school may file a complaint directly with the CDE alleging a violation of the equitable services requirements. The CDE believes that the ESEA complaint procedures apply to the CARES Act and the ESSER Fund. The CDE has 45 days from receipt of the complaint to render a decision. A party dissatisfied with the CDE’s decision may appeal to the Secretary of ED within 30 days. The Secretary has 90 days from receipt of the appeal to investigate and resolve the appeal. Given the dynamic legal situation surrounding the equitable service requirements for CARES Act funds, LEAs are strongly encouraged to seek their own legal counsel before making any decisions in this regard.
12. Why is the CDE not releasing an LEA’s full allocation? How will payments be calculated? (Added 22-Jul-2020)
As with most other federal funds apportioned to LEAs, ESSER Funds are subject to federal cash management requirements. As such, CDE is required to implement cash management practices that minimize the time elapsing between the receipt and disbursement of funds by recipients of formula based federal grants awarded by the CDE. By agreement with the federal government, CDE meets this requirement, in part, by apportioning LEAs 25% of their total allocation less remaining cash balance from prior apportionments.
13. Are ESSER funds subject to the excess interest calculation? (Added 22-Jul-2020)
Yes. For more information about interest calculation, see Calculating Interest Earned on Federal Funds.
14. How often will LEAs receive payment? (Added 22-Jul-2020)
LEAs will receive payment approximately six to eight weeks after the quarterly reporting window closes.
15. Will LEAs be required to report to CDE on these funds? (Added 26-Oct-2020)
Yes, the CDE requires LEAs to report on the use of funds. Please refer to the CARES Act Reporting Requirements for the reporting application, help page, and reporting window informaton.