Senate HEALS Act Analysis

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Senate HEALS Act Analysis

Late yesterday afternoon, Senate Republicans released their marker bill for the fifth COVID response. Here is a quick summary of what we know to be in the bill. You can also access a side-by-side analysis of the House Democrat, Senate Democrat and Senate Republican bill with our key priorities (kudos to Sasha).
 
Top Takeaway: This is a message bill and it includes a lot of non-starters from our perspective (as well as for Senate Democrats, not to mention getting a bill like this to a place that could pass the House). There are a lot of pressures at play outside of content. The August recess starts soon and Congress will want to get home to campaign; at the same time, they do not want to go home for August recess without having at least made significant inroads on another round of federal support and unemployment insurance is a key driver in negotiating something quickly.
 
As always, we will work with the Senate to make this a strong, bipartisan bill. The GOP proposal is not a bill we would endorse at this point and we expect that is true of education stakeholders ranging from Governors down to classroom teachers. We will be keeping a keen eye on protecting the liability provisions (this will cause a divide in the education community, with state/district leaders calling for the protection and teachers/unions opposing the provisions), as well as increasing overall funding level, opposing any privatization and/or incentive/mandate to physically open, pushing for IDEA flexibility, supporting dedicated funding for E-Rate, and extending school nutrition flexibilities, among other priorities.
 
Overview
  • Funding: The overall bill does not include any additional budget aid for state and local governments, which will likely be a top consideration in how much officials at that level cut their education budgets in response to the economic slow down (see related Maintenance of Effort item in policy section). Topline level for education is $105 billion. 
    • $1 b for Bureau of Indian Education and outlying areas; $ 5 billion for GEERF (Governor’s Fund); $70 b to ESSERF (K12); $29 b for higher ed
    • USED Secretary would have to disseminate money to states within 15 days of the bill becoming law. 
    • For K12 Funding
      • Allocation: Would move to states based on overall population (60%) and on Title I share (40%)
      • Private schools would be eligible for all the same funding that public schools are eligible for as long as they meet the same re-opening criteria.
      • Allowable uses
        • For the 1/3 of funds automatically available, allowable uses appear to be broad and flexible, pretty similar to the CARES act, covering things like sanitation, purchasing ed tech, responding to the pandemic, etc….
        • For the conditional 2/3, includes additional flexibilities, like purchasing PPE, using flexible schedules to keep kids in isolated groups, buying boxed lunches, buying physical barriers, providing transportation, repurposing existing school rooms/space (including improving ventilation systems)  
      • Of the funding allocated to LEAs/private schools:
        • 1/3 would be available to all schools immediately; the remaining 2/3 would be available for reopening costs, with funding awarded based on certain minimum opening requirements (and other criteria established by the states)
        • For the conditional 2/3: If an LEA provides in-person instruction for at least ½ the students for at least ½ the days, their funding would be automatically approved. For LEAs with no in-person instruction, there would be no money. For LEAs that provide SOME in-person, $$ would be reduced/awarded on a pro-rata basis
        • An LEA’s plan must include a detailed timeline of when in-person instruction will occur, description of how many in-person instruction days/week are being offered, and an assurance the LEA will offer students as much in-person instruction as is safe and practicable
      • Funding for private schools: SEAs must reserve a portion of the funds equal to the percentage of students enrolled in non public K12 schools in the state prior to COVID (a la equitable services). In order to receive these funds, a private school must meet in-person requirements, though theirs differ from those of public schools
      • Any private school offering in-person instruction for at least half of their students for half of the days would be eligible to receive the full share. Private schools offering no in-person instruction would only be eligible for 1/3 of the amount of assistance per student; LEAs that provide some in-person would receive their share on a pro-rata basis
  • Policy
    • Maintenance of Effort: States have to spend the same percentage of overall FY20/21 budgets on education as they did in FY19. Put another way, cuts to education are OK, so long as schools are cut at the same rate as other state programs. LEAs can pursue an MOE waiver. This is an improvement over CARES.
    • Liability: Provides a federal cause of action for COVID exposure claims against employers, including schools. The cause of action is the exclusive remedy for all claims against a defendant for personal injury caused by actual, alleged, feared or potential exposure to COVID. The bill covers coronavirus-related exposure injuries that occur between Dec. 1, 2019 and Oct. 1, 2024, and impacted parties would have to show LEAs were grossly negligent or demonstrated willful misconduct, and that they violated relevant state and local public health guidelines. 
    • Private Schools: In addition to the private school carve out in ESSERF, the bill authorizes (but does not fund) a brand new voucher program, the Education Freedom Scholarships. This is NOT a federal tax credit, it is a one-time appropriation and can be used on any educational expense (private school, homeschool, etc) and States would be required to set up tax credit entities to receive this funding. 
    • Equitable Services: Language in how the new funds would be allocated is tighter than that of CARES. Does NOT include retroactive fix of CARES problem for CARES funding. 
    • Homework Gap: No funding for homework gap is included in the bill. Yes, it is an allowable use of the broader ESSERF fund, but that is nowhere near as flexible as CARES was and is already grossly oversubscribed.
    • IDEA Flexibility: Provides ZERO flexibility for IDEA.
     

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