Dear Governor Sununu and Commissioner Edelblut — Waiver of the Maintenance of Effort (September 28, 2022)

Summary

A letter dated September 28, 2022 from the U.S. Department of Education's Office of Elementary and Secondary Education, signed by Laura Jimenez, to Chris Sununu, Governor, and Frank Edelblut, Commissioner, of New Hampshire. It responds to New Hampshire's December 27, 2021 request for a waiver of the maintenance of effort requirements in the CRRSA Act and the American Rescue Plan Act of 2021 for elementary and secondary education. It says the State failed to meet the requirement for fiscal year 2022 by approximately one percentage point, roughly $29 million, which it attributes to an enrollment decline, and approves the waiver for fiscal year 2022. It calls action on the fiscal year 2023 request premature.

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“Dear Governor Sununu and Commissioner Edelblut — Waiver of the Maintenance of Effort (September 28, 2022).” Original at www.ed.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/department-of-education-fy-2022-waiver-approved-www-ed-gov-2a3dbb546f-23034f4b8d/, SHA-256 42ba33dfa7c3764d5a87b7a8a6f850fe99e8424b1d75e54e9ad6c81c1bf9ed7f.

Full text

                               UNITED STATES DEPARTMENT OF EDUCATION
                                    OFFICE OF ELEMENTARY AND SECONDARY EDUCATION




                                                   September 28, 2022

The Honorable Chris Sununu
Governor
107 North Main Street
Concord, NH 03301-3860

The Honorable Frank Edelblut
Commissioner of Education
New Hampshire Department of Education
101 Pleasant Street
Concord, NH 03301-3860

Dear Governor Sununu and Commissioner Edelblut:

I am writing in response to the December 27, 2021, request from the New Hampshire Department of
Education (NHDOE) to the U.S. Department of Education (Department) for a waiver of the maintenance
of effort (MOE) requirements in section 317(a) of the Coronavirus Response and Relief Appropriations
Act, 2021 (CRRSA Act) and section 2004(a)(1) of the American Rescue Plan Act of 2021 (ARP Act)
with respect to elementary and secondary education. As a condition of receiving CRRSA and ARP
pandemic relief funds under the Education Stabilization Fund, New Hampshire assured it would
maintain effort for both elementary and secondary education and higher education in each of fiscal years
(FYs) 2022 and 2023.

This response provides a determination applicable to the CRRSA and ARP Acts’ MOE
requirements for FY 2022.

For this fiscal year, under section 317(a) of the CRRSA Act, a State that receives Elementary and
Secondary School Emergency Relief funds (ESSER II), Governor’s Emergency Education Relief funds
(GEER II), and funds for the Emergency Assistance to Non-Public Schools (EANS) program must: 1)
Maintain State support for elementary and secondary education at least at the proportional level of the
State’s support for elementary and secondary education relative to the State’s overall spending, averaged
over FYs 2017, 2018, and 2019; and 2) Maintain State support for higher education at least at the
proportional level of the State’s support for higher education relative to the State’s overall spending,
averaged over FYs 2017, 2018, and 2019. This MOE requirement also applies to ARP ESSER funds.
Section 2004(a)(2) of the ARP Act allows the Department to grant a waiver of the MOE requirements
“for the purpose of relieving fiscal burdens incurred by States in preventing, preparing for, and
responding to the coronavirus.”


                                   400 MARYLAND AVE., SW, WASHINGTON, DC 20202
                                                 http://www.ed.gov/

      The Department of Education’s mission is to promote student achievement and preparation for global competitiveness by
                                  fostering educational excellence and ensuring equal access.
Page 2 – The Honorable Chris Sununu



Under the authority of section 2004(a)(2) of the ARP Act, I am approving New Hampshire’s MOE
waiver request of the MOE requirements in section 317(a) of the CRRSA Act and section 2004(a)(1) of
the ARP Act with respect to State support for elementary and secondary education to relieve fiscal
burdens incurred by the State for FY 2022. As indicated in the Department’s Frequently Asked
Questions document, the Department’s approach to MOE waiver requests is rooted in consideration of
the impact on students. In reviewing New Hampshire’s request for a waiver, the Department considered
all information and data included in New Hampshire’s request and the totality of the circumstances.
Based on the information submitted and the waiver considerations, the Department determined that,
consistent with the Department’s interest in a State’s commitment to investing in education, New
Hampshire demonstrated increased investments in elementary and secondary education. Specifically,
New Hampshire increased State support for elementary and secondary education overall and on a per-
pupil basis in FY 2022 compared to the baseline years. Additionally, per-pupil support for elementary
and secondary education in FY 2022 increased at a rate that exceeded the growth in overall State
expenditures.

Despite these facts, based on New Hampshire’s submission, the State failed to meet MOE requirements
by approximately one percentage point in FY 2022, compared with the baseline years, which equates to
roughly $29 million. During FYs 2019 through 2023, New Hampshire experienced a marked enrollment
decline that impacted the relative share of elementary and secondary education funding as a percentage
of overall State spending. Absent this decline in elementary and secondary education enrollment, given
the nature of the State’s education funding formula and its increased per-pupil funding over time, New
Hampshire would have maintained effort.

Consequently, the Department determined that approval of the waiver, for purposes of FY 2022
requirements, is appropriate based upon consideration of the totality of the circumstances, including
review of New Hampshire’s submission as well as the Department’s application of the statutory
requirements and the Department’s approach to MOE waiver requests noted in the FAQ, including
consideration of the impact on students. This waiver for FY 2022 MOE requirements is distinct from
any determination the Department may make concerning New Hampshire’s compliance with
Maintenance of Equity requirements for FY 2022 under the ARP Act (§ 2004(b)).

Finally, the Department believes it is premature to act on the State’s request for a waiver of the MOE
requirements for FY 2023. We strongly encourage the State to take additional steps to further the State’s
commitment to elementary and secondary education in FY 2023.

Thank you for your ongoing commitment to education. If you have any questions, please contact the
New Hampshire State Mailbox at: NewHampshire.OESE@ed.gov.

                                             Sincerely,

                                             Laura Jimenez

                                             Laura Jimenez
                                             Director, Office of State and Grantee Relations
                                             Office of Elementary and Secondary Education
                                             United States Department of Education

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