United States Department of Education to the Honorable Jim Justice, Governor of West Virginia (June 12, 2023)
Summary
A June 12, 2023 letter to Governor Jim Justice and State Superintendent David L. Roach approves West Virginia's June 14, 2022 request to waive the FY 2022 maintenance of effort requirement for elementary and secondary education, which the State missed by $23.7 million. West Virginia's support fell from an average of $2,082,961,475 in the baseline years to $2,049,783,217 as enrollment dropped by almost 15,000 students, and it cited Medicaid costs of over $99 million. The Department weighs a $40 million School Building Authority appropriation in House Bill 2024 as larger than the gap, finds no higher education waiver needed, and calls action on the FY 2023 request premature.
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“United States Department of Education to the Honorable Jim Justice, Governor of West Virginia (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-b6b0d3a29a-ab9a21664d/
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UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF ELEMENTARY AND SECONDARY EDUCATION
June 12, 2023
The Honorable Jim Justice
Governor of West Virginia
State Capitol
1900 Kanawha Boulevard East
Charleston, WV 25305
The Honorable David L. Roach
State Superintendent of Schools
West Virginia Department of Education
1900 Kanawha Boulevard East
Charleston, WV 25305
Dear Governor Justice and Superintendent Roach:
I am writing in response to the June 14, 2022, request from the West Virginia Department of
Education (WVDOE) 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, West Virginia 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.”
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 Jim Justice
Under the authority of section 2004(a)(2) of the ARP Act, I am approving West Virginia’s
request to waive 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. Based on final FY 2022 data, West
Virginia does not require a waiver for higher education because the State maintained effort for
that budget area.
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 West Virginia’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,
West Virginia failed to maintain effort in FY 2022 by $23.7 million. West Virginia submitted
data showing it decreased overall support for elementary and secondary education from an
average of $2,082,961,475 in the baseline years to $2,049,783,217 in FY 2022 because of
decreases in student enrollment of almost 15,000 students compared to pre-pandemic levels (FY
2019); these enrollment declines in turn influenced lower spending in school operations,
maintenance, and transportation.1 West Virginia also noted that the decrease in proportional
education spending was driven by new, increased investments in the State’s health care system
caused by the rise in COVID-19 cases due to the Delta variant. The pandemic also caused large
increases in West Virginia’s Medicaid spending from March 2020 to March 2022, which is
expected to cost the State over $99 million.
West Virginia demonstrated a commitment to State support for elementary and secondary
education in future fiscal years by increasing State aid for elementary and secondary education in
the State FY 2024 budget (House Bill 2024), signed into law on March 16, 2023.2 House Bill
2024 includes a $40 million “School Building Authority” appropriation from the FY 2023
surplus for elementary and secondary school construction that is larger than the FY 2022 MOE
gap. Consequently, considering the totality of the circumstances, the Department determined that
approval of the waiver, for purposes of FY 2022 requirements, is appropriate because the State
incurred fiscal burdens in responding to the coronavirus pandemic and has increased its State
funding for elementary and secondary education in future fiscal years more than the amount of
the MOE shortfall in FY 2022.
This waiver for FY 2022 MOE requirements is distinct from any determination the Department
may make concerning West Virginia’s compliance with maintenance of equity requirements for
FY 2022 under the ARP Act (§ 2004(b)). Based on data provided by the State, West Virginia has
not yet complied with the maintenance of equity requirements in FY 2022 for six high-need
LEAs. West Virginia must make supplemental payments to these high-need LEAs that
experienced disproportionate per-pupil funding in FY 2022. Please advise the Department when
these additional payments have been made.
1
These budget areas are based on expenditure data from the second preceding school year; for FY 2022, this was the
2019-20 school year, when transportation costs decreased because fewer school buses were in operation given
COVID-19 stay-at-home orders.
2
https://www.wvlegislature.gov/Bill_Status/bills_history.cfm?INPUT=2024&year=2023&sessiontype=RS
Page 3 – The Honorable Jim Justice
Finally, the Department believes it is premature to act on the State’s request for a waiver of MOE
requirements for FY 2023. In the meantime, we strongly encourage the State to take additional
steps to further the State’s commitment to elementary and secondary education.
Thank you for your ongoing commitment to education. If you have any questions, please contact
the West Virginia State Mailbox at: WestVirginia.OESE@ed.gov.
Sincerely,
aura Jimenez
Laura Jimenez
Laura
Jimenez
Laura Jimenez
Director, Office of State and Grantee Relations
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