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Federal Register / Vol. 86, No. 131 / Tuesday, July 13, 2021 / Rules and Regulations
Secretary, use an alternate significant poverty percentage based on circumstances in the State, which may be 1 the States average percentage of students from low-income families in public and non-public schools, 2 the average percentage of students from low-income families in non-public schools in the State that, for example, applied for or participated in the CRRSA EANS program, or 3 other factors that the State demonstrates support an alternate significant poverty percentage.
Reasons: A 40-percent poverty percentage has long been recognized as a measure of significant poverty to operate a schoolwide program under title I of the ESEA. In the context of title I, 40-percent poverty is the statutory threshold for a title I school to use title I funds to upgrade the entire educational program of a school and serve all students. See section 1114a1A of the ESEA. Given Congress recognition of 40 percent as significant within the context of title I, we believe it presents a reasonable threshold with respect to the ARP EANS
program as well.
We recognize, however, that there may be circumstances in the State that may warrant establishing a different significant percentage of students from low-income families for non-public schools. As a result, under the final requirements, a State has the option of using an alternate significant poverty percentage upon approval by the Secretary based on factors in the State.
To receive approval, a State must provide data and a supporting rationale to justify the use of such alternative as part of its ARP EANS application.
The final requirements permit a State to apply to use an alternate significant poverty percentage based on the States average percentage of students from low-income families in both public and private schools. This option recognizes that the determination of what constitutes a significant poverty percentage may vary from State to State based on a particular States relative level of poverty.
The final requirements also allow a State to apply to use an alternate significant poverty percentage based on, for example, the average percentage of students from low-income families in non-public schools in the State that applied for or participated in the CRRSA EANS program. Using an average percentage of poverty in nonpublic schools could allow a State to establish an appropriate significant poverty percentage relative to nonpublic schools in the State.

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Finally, the final requirements also permit a State to support an alternate significant poverty percentage based on factors that the State demonstrates reflect significant poverty. For example, a State might submit data showing the relative rates of poverty in non-public schools as compared to public schools, or the percentage of non-public schools that would be excluded at different poverty percentages, and explain why those data support the requested alternate percentage.
We believe these alternatives address some commenters concerns that a State should have the opportunity to propose a significant poverty percentage that reflects circumstances within the State.
We know that poverty percentages vary considerably among States and between public and non-public schools. The alternatives permit a State to propose a significant poverty percentage relative to poverty within the State.
Most Impacted by the COVID19
Emergency Statute Under section 2002a of the ARP Act, services or assistance to non-public schools under the ARP EANS program is limited to non-public schools that enroll a significant percentage of students from low-income families and are most impacted by the COVID19
emergency.
Final Requirements: Under the final requirements, an SEA determines if a non-public school is most impacted by the COVID19 emergency based on one or more of the following factors: 1 The number of COVID19 infections per capita in the community or communities served by the non-public school; 2 the number of COVID19
deaths per capita in the community or communities served by the non-public school; 3 data on the academic impact of lost instructional time and the social, emotional, or mental health impacts attributable to the disruption of instruction caused by the COVID19
emergency; or 4 the economic impact of the COVID19 emergency on the community or communities served by the non-public school. In addition to using one or more of these factors, an SEA may use other factors included in the States approved application to determine which non-public schools are most impacted by the COVID19
emergency.
Reasons: The final requirements afford a State several options from which to choose in assessing impact.
COVID19 infection and death rates are readily available 4 and provide a 4 The Centers for Disease Control and Prevention provides a COVID Data Tracker on its website,
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reasonable way to identify communities most impacted by the COVID19
emergency. Additionally, students are facing significant academic challenges as a result of the lost instructional time,5
and social, emotional, and mental health impacts attributable to the disruption of instruction caused by the COVID19 emergency. Depending upon the specific circumstances, these issues may be more pronounced in some nonpublic schools than others. Finally, the COVID19 emergency has had a disproportionate economic impact on many communities,6 including high rates of unemployment, which may have a concomitant impact on nonpublic schools serving such communities.
Given the wide-ranging impact of the COVID19 emergency on schools and communities throughout the Nation, we recognize that there is no single factor with which to assess the impact of the COVID19 emergency on non-public schools. Thus, in addition to one or more of the above factors, the final requirements allow an SEA to use other factors included in the States approved application to determine the non-public schools most impacted by the COVID
19 emergency.
We recognize that non-public schools often draw students from communities other than the one in which they are located. Thus, the factors in the final requirements related to per capita COVID19 infections and deaths as well as economic impact are relative to the community or communities served by a non-public school, which the SEA has flexibility to determine.
The final requirements reflect many of the comments recommending that the Department use the factors in the EANS
FAQs and give States a range of options.
Some commenters urged that the impact of the COVID19 emergency not be allowed to outweigh poverty. The final requirements use a majority of the factors in the EANS FAQs and permit an SEA to add others included in the States approved application for EANS
funding. They also make clear that a non-public school must meet both the available at https covid.cdc.gov/covid-datatracker/, which includes community data on reported COVID19 cases and deaths.
5 We note that section 312d4L of division M
of the CRRSA Act specifically authorizes the use of EANS funds to address learning loss, which the final requirements refer to as the academic impact of lost instructional time.
6 See, e.g., Aaron Klein & Ember Smith, Explaining the Economic Impact of COVID19: Core Industries and the Hispanic Workforce, Brookings Institution Feb. 5, 2021, https
www.brookings.edu/research/explaining-theeconomic-impact-of-covid-19-core-industries-andthe-hispanic-workforce/.

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