Health, Safety and COVID-19 Issues Q&A

CESA 6’s answer is based on federal law that predates the pandemic and EANS. The law stipulates a “public control of funds” provision as well as specific disposition rules. Disposition rules are the regulations that outline what must be done with used items purchased with federal grant funds once the term of these grants ends. CESA 6 has to follow these laws. If they don’t, they, the DPI and you will be in trouble when USDE auditors come along to check the program. We’ve already been told Wisconsin may be audited. No information has been provided on where CESA or DPI is going to store used equipment from the EANS program once the grant term ends. The state legislature can’t fix this issue because it’s a federal law. Congress likely won’t change it because it’s not an easy cure. Every state is having this problem.

Your options:

1. At the end of the program in 2024, your school may be able to buy the server from CESA 6 for the depreciated value. But if you’re going to have to spend money, you may want to buy a whole new one. You’ll have to budget for either option. Ensure CESA 6 will let you buy it for the depreciated value before this is an option to rely on. Also ask: How will they determine depreciation on the server/item? Get an answer in writing.


2. Transfer the equipment to another eligible federal grant program that you are participating in through your local school district. If you do that, you’ll have to ensure that the server is actually used for that program and not other things. Title IV under ESEA is the most elastic, wide-ranging program. If you are not already participating in it, see if you can join for next school year (this is usually done in the spring via an annual “affirmation of consultation” form with the district) and work out the program practices so a server is needed.

However, keep in mind that “transferring the server to a different eligible federal program” is contingent. A server like this would likely not qualify as an allowable cost for a private school under any other annual federal program (ESEA/IDEA) because the server’s purpose is to support the technology at the school for general education purposes. ESEA/IDEA allowable costs cannot support the general education of private school students. Additionally, ESEA and IDEA have “supplement, not supplant” rules. A server would likely be considered “supplanting” because it would be assumed a private school would have a server already in order to operate their educational programs, especially if they have technology integrated into their programs.

No, ESSER funds have a public control of funds provision which prohibits public school districts from directly reimbursing private schools. Additionally, by law, private schools are not allowed to obligate (or spend) federal funds.

While there are school districts that are currently reimbursing private schools, this is not allowed under federal law. Important Fact #2 on this document clearly states how the funds are controlled. Even if your district is currently reimbursing you, the time will come when an auditor or new staffer realizes the district is violating the law and the practice will cease. When that happens, you may be left with an unreimbursed bill on your desk, for which there is no recourse. Your school will be stuck paying it or fighting for the district to keep its reimbursement promises (if that happens, you’d better have perfect documentation). Several WCRIS schools and principals (using their own funds) have encountered this. Spare yourself these unpleasant surprises by following correct practices now.

The Governor's mask order exempts people with health conditions from wearing a mask. See this question on page 3 of the Gov's FAQ on masking:

I have a medical condition that prevents me from wearing a face covering. Do I need documentation to prove that I don’t need to wear a face covering in public?

No. You are not required to carry documentation to prove that you do not need to wear a face covering in public.

And this question on Page 4:

What do I do if I see someone not wearing a face covering, even though they should be?

Nothing. Some people have conditions or circumstances that would make wearing a face covering difficult or dangerous. Just wear your face covering and stay six feet away.

Actually, you can. These programs are a confusing "alphabet soup" of acronyms. But they are all different. When it comes to dealing with your district, these acronyms become incantations that cast a spell, leading to confusion and pushing you to agree with whatever the district wants. Don't fall prey to this.

Key things to remember in ESSER vs Title I and other federal programs:

1. ESSER funds are NOT Title I funds. Their use does not have to follow the Title I program rules. The link between the two programs is that the ESSER funds are calculated using the Title I formula. Title I does not go away. It is not replaced by ESSER. These new ESSER funds can be used for 12 allowable purposes in the ESSER law. Private schools do NOT have to use their ESSER funds for the same purposes that the public schools do. It doesn't matter what the public district is doing. ESSER funds can be used for ALL the students at your private school.

2. Alongside ESSER funds, the normal Title I program will continue. The school district can use its Title I funds how it chooses. The private school can use its Title I funds differently, if it wishes and if the uses are allowable under the Title I law. The allowable uses are primarily for direct instruction. Title I programs can only serve Title I eligible students. (The student has to be designated as educationally needy and reside in a Title I attendance area.)

3. School choice program participation has NOTHING to do with eligibility for ESSER funds or for Title I funds. All three programs are separate.

4. Both ESSER and Title programs I through IV all require "timely and meaningful consultation" with the private school by the public school district. The public district will NOT get federal funds from any of these programs unless the private school "signs off" and affirms that timely and meaningful consultation occurred. The public district has to deal with the private school's needs in a satisfactory way before the private school signs off. Do NOT sign off on the DPI Affirmation forms if you do not think consultation has been timely or meaningful. Work with the district until they answer your students' needs.

5. One caveat: The district can not give any federal program money directly to the private school. But, they can purchase, and order and pay for things and staff your students need, as long as the uses are allowable under the federal law governing ESSER or, if it's a different program, the federal law governing those programs (usually Titles I through IV but there are other programs). Remember, the allowable use of the funds are determined based on federal law, not based on the whims or desires of the public school district officials or its internal policies.

The FERPA question related to PPP is important. We cover that in info on the PPP on the WCRIS website. Specifically, see the discussion of federal issues there and the FAQ from the Small Business Administration.

There is some thought that while it does trigger FERPA, it won't last very long because once the money is spent on a transient expense (like payroll), rather than bricks and mortar mortgage, the obligation ends.

But that's just a theory. School Principals/Administrators should check with their school attorney to determine their obligations, and ascertain the school's comfort level with any FERPA exposure.

A school’s individual allocation has not been developed yet for the ARP-EANS program because the number of schools in the program has not yet been determined.

Schools may elect to not participate in ARP-EANS that were in the CRRSA EANS (first round of EANS funds) program and schools that were not in the CRRSA EANS program will be given the opportunity to apply to participate in the ARP EANS program. It is expected that the allocation information will be available in the new year.

It depends. Only unvaccinated or vaccine booster recipients who are either a student, school staff member or a household member of a school staff or student may receive a vaccine incentive. Theoretically, they could get an incentive for getting a shot and an incentive for bringing someone else who needs a shot.

People who are already vaccinated are not allowed to receive an incentive for bringing an unvaccinated person to get vaccinated. In that case, only the unvaccinated person can receive the incentive if they belong to one of the categories above.

However, a vaccinated person can receive an incentive if they receive a booster during the period of your VIP.

Given that proper communication and consultation has taken place with their private schools, public school districts can create deadlines and enforce them in order to provide equitable services and obligate funds in a timely manner. If your local education agency (i.e. public district or “LEA”) has not created the contracts with vendors yet or had them signed, you may be able to work with the LEA to stay with the vendor you had last year. When reaching out to the district, it’s important to stress continuity of instruction, which is in the best interest of your students’ education and imperative to their academic success. The purpose of Title I instruction is to bring the most educationally-at risk children up to grade level to meet their peers, thus exiting them from the program. Having a consistent instructor supports that purpose.

There are several factors that affect whether or not a district is serving both public and private school students with disabilities. Factors include: whether the district is requiring schools to implement school-wide virtual instruction for the entire student body; what a student’s IEP or services plan allows for; and what is possible given the circumstances. Evaluations and reevaluations are not beholden to the 60-day timeline. However, districts should make every attempt to continue following their Child Find and evaluation processes if parents consent to virtual meetings and if the necessary data is available to make appropriate determinations and decisions about a student. Many of these questions are addressed in this FAQ from the Department of Public Instruction (DPI).

Private school principals should contact their public school districts to determine: 1) what they’re doing with their students; 2) if they’re serving students with disabilities; and 3) if they are, how they are implementing students' IEPs virtually. Principals should also consult with their public school districts to determine if and how the districts can continue to support their private school students with services plans and what the districts' goals are for evaluating or reevaluating students during this time.

Answer: The seclusion and physical restraint law (Wisconsin Statute 118.305) applies only to public schools, charter schools and schools in the Special Needs Scholarship Program (SNSP).

For more information about the seclusion and restraint law and how it functions in practice, what is defined as seclusion and restraint, etc., see the Department of Public Instruction's (DPI) online resource page or FAQ.

Note: Those DPI pages have not been updated to list SNSP schools as being covered. However, the 2015 State Budget added schools in the SNSP to the definition of schools covered by the seclusion and physical restraint law, which was first passed in 2011, before the SNSP existed.

WCRIS has asked the DPI to update its website with clarifying language.

Private school teachers are not included in the mandatory TB skin testing. The WI statute (118.25) Health Examinations applies only to public schools.

Wisconsin law says a private school may request a physician to prescribe emergency epinephrine auto-injectors in the school's name and for the school's use. If such a request is made, the law requires: a private school codevelop a plan for managing its Epi-Pens; the plan must specify who on staff is authorized to administer treatment and what training staff is required to receive; the plan must be approved by a physician; and if a pen is used in an emergency, 911 must be called.

See page 51 of the 2020-21 WCRIS Legal Handbook.