On April 14, 2020, the U.S. Department of Education (ED) announced the process by which it will administer nearly $3 billion under the Governor’s Emergency Education Relief (GEER) Fund, which is one component of the Education Stabilization Fund in the Coronavirus Aid, Relief, and Economic Security (CARES) Act.

As discussed in our prior client alert regarding emergency education funding under the CARES Act, the GEER Fund is specifically allocated to state governors for the purposes of:

• providing emergency support through grants to local educational agencies (LEAs) that the State educational agency deems to have been most significantly impacted by COVID-19 to support the ability of such LEAs to continue to provide educational services to their students and to support the on-going functionality of the LEA.
• providing emergency support through grants to institutions of higher education (IHEs) serving students within the State that the Governor determines have been most significantly impacted by COVID-19 to support the ability of such institutions to continue to provide educational services and support the ongoing functionality of the institution.
• providing support to any other institution of higher education, LEA, or education related entity within the State that the Governor deems essential for carrying out emergency educational services to students for authorized activities under certain provisions of the Elementary and Secondary Education Act (ESEA), the Individuals with Disabilities Act, the Perkins Act, or the Higher Education Act, as well as for childcare services, early childhood education, social and emotional support, and protection of education-related jobs.

To receive its formula share of this $3 billion fund — which is determined 60% by the State’s relative population of individuals aged 5 through 24, and 40% by the State’s relative number of children counted for Title I formula grants under the ESEA — the Governor’s office must submit a Certification and Agreement form no later than June 1, 2020. The ED has also released its table of available State allocations that further describes the formula allocation.

In her letter to governors announcing the availability of GEER Funds, Secretary of Education Betsy DeVos described the GEER funds as an “extraordinarily flexible emergency block grant” that governors can use to “meet the current needs of students, schools (including charter schools and non-public schools), postsecondary institutions, and other education-related organizations” in each state. This statement underscores the significant discretion granted by the CARES Act for governors’ distributions of GEER Funds for the above-described purposes. (This flexibility with GEER Funds stands in contrast with most of the other emergency monies under the Education Stabilization Fund, which are more particularly directed at state and local educational agencies, and IHEs and their students.)

The ED has stated that after a state submits the Certification and Agreement form, it will process it and obligate funds within three (3) business days through the ED’s G5 funding system. Notwithstanding the generally flexible uses, the ED’s notice regarding the availability of GEER Funds denotes the following:

• Maintenance of Effort: As provided in section 18008 of the CARES Act, a State must maintain support for elementary and secondary education and State support for higher education (which must include State funding to IHEs and State need-based financial aid, and may not include support for capital projects or for research and development or tuition and fees paid by students) in fiscal years 2020 and 2021 at least at the levels of such support that is the average of such State’s support for elementary and secondary education and for higher education in the three fiscal years preceding March 27, 2020. The ED may waive the requirement that a State maintain effort for the purpose of relieving fiscal burdens on States that have experienced a precipitous decline in financial resources.
• Employees and Contractors: As provided in section 18006 of the CARES Act, States receiving GEER Funds must, “to the greatest extent practicable,” continue to pay their employees and contractors during the period of any disruptions or closures related to coronavirus.
• Payments to Administrators and Executives: The ED believes States should “protect taxpayers and carry out Congressional intent” by ensuring grants made from GEER Funds prohibit the use of any such funds for payments to administrators and executives of state educational agencies, institutions of higher education, or education-related entities without clear evidence providing a reasoned basis for how such a payment will support the ongoing functionality of LEAs, IHEs, or is strictly consistent with the plain statutory context and language of the CARES Act.
• Timing: The ED expects that States will issue grants both quickly and as precisely targeted as possible to address the exigent needs of students, the immediate challenges to the ongoing functionality of LEAs and IHEs, and the other specified statutory purposes. A State must return to the ED any funds received under the GEER Fund that the State does not award within one year of receiving such funds.

Governors’ offices seeking GEER Funds must ensure that they have in place the necessary processes and systems to comply with federal grant reporting requirements. Additionally, the ED will require States to submit, within 45 days of receiving GEER Funds, an initial report detailing the State’s process for awarding those funds to LEAs, IHEs, or other education-related entities, including the criteria adopted by the State for determining those entities that are “most impacted by coronavirus,” “essential for carrying out emergency educational services,” and/or “education related” and a description of the process and deliberations involved in formulating those criteria. States must also submit quarterly reports to the ED, at such time and in such manner and containing such information as the ED may require in the future.