Waiver Approved — Department of Education Letter to New York (June 12, 2023)

Summary

A letter dated June 12, 2023 from the Office of Elementary and Secondary Education, United States Department of Education, to Governor Kathy Hochul and Superintendent Rosa of New York. It responds to the March 15, 2023, request from the New York State Division of the Budget for a waiver of maintenance of effort requirements in section 317(a) of the CRRSA Act and section 2004(a)(1) of the ARP Act. The letter states that the Department is approving New York's request to waive those requirements for State support for elementary and secondary education for FY 2022. It says that, based on New York's submission, the State failed to meet the requirements by approximately 0.84 percent ($369 million) in FY 2022 compared with the baseline years.

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“Waiver Approved — Department of Education Letter to New York (June 12, 2023).” Original at www.ed.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/department-of-education-fy-2022-waiver-approved-www-ed-gov-91bdcfb593-b9bdb1719c/, SHA-256 c75c3a587662c1336bed621d3a3438bbb83801888f447a83e07db980a5f73400.

Full text

                            UNITED STATES DEPARTMENT OF EDUCATION
                                 OFFICE OF ELEMENTARY AND SECONDARY EDUCATION




                                                     June 12, 2023

The Honorable Kathy Hochul
Governor of New York
State Capitol
Albany, NY 12224

The Honorable Betty A. Rosa
Commissioner of Education
New York State Department of Education
89 Washington Avenue
Albany, NY 12234

Dear Governor Hochul and Superintendent Rosa:

I am writing in response to the March 15, 2023, request from the New York State Division of the
Budget 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). As a condition of receiving CRRSA Act and ARP Act pandemic relief
funds under the Education Stabilization Fund, New York assured it would maintain effort for
both elementary and secondary education and higher education in each of fiscal years (FYs)
2022 and 2023.

More specifically, for FY 2022, section 317(a) of the CRRSA Act requires 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 to: 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, and 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.”

Under the authority of section 2004(a)(2) of the ARP Act, I am approving New York’s request to
waive the MOE requirements in section 317(a) of the CRRSA Act and section 2004(a)(1) of the

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   The Department of Education’s mission is to promote student achievement and preparation for global competitiveness by
                               fostering educational excellence and ensuring equal access.
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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 York’s request for a waiver, the Department considered all information and data
included, as well as the totality of the circumstances. Based on the information submitted, the
Department determined that, consistent with the Department’s interest in a State’s commitment
to education spending, New York made increased investments in elementary and secondary
education in FY 2022. Specifically, New York increased State support for elementary and
secondary education overall and on a per-pupil basis in FY 2022 compared to the baseline years.
Crucially, 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 York’s submission, the State failed to meet MOE
requirements by approximately 0.84 percent ($369 million) in FY 2022, compared with the
baseline years. The decrease in proportional education spending was driven by increased State
spending on public health and non-recurring payments to two pandemic response programs in
FY 2022, unemployment assistance for workers otherwise excluded from employments benefits,
and COVID-19 testing kits for schools and local governments.

Considering the totality of the circumstances, including the State’s ongoing commitment to
support elementary and secondary education through a $2.6 billion increase1 in Foundation Aid
in FY 2024 compared to FY 2023, as well as the State’s demonstration of fiscal burdens incurred
in responding to the coronavirus pandemic, the Department determined that approval of the
waiver for purposes of the FY 2022 requirements is appropriate.

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

                                                           Sincerely,
aura Jimenez
                                                           Laura Jimenez


                                                           Laura Jimenez
                                                           Director, Office of State and Grantee Relations




1
    https://www.governor.ny.gov/news/governor-hochul-announces-highlights-historic-fy-2024-new-york-state-budget

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