On September 28, 2020, the Commissioner of the Nebraska Department of Education, provided the following CARES ACT Equitable Services Update:

On September 4, 2020, in NAACP v. DeVos, the U.S. District Court for the District of Columbia issued an opinion and an order vacating the Interim Final Rule (IFR) under the CARES Act in its entirety nationwide. This order “vacates” the rule, leaving no IFR in place for the U.S. Department of Education (USED) to enforce in any jurisdiction.

The USED respects the rule, will enforce the law as the courts have opined, and will not appeal these rulings. The USED will not take any action against States or local districts that followed the guidance and/or the IFR prior to notice of the court’s decision. See attached letter from the Secretary of Education.

With this guidance, going forward the Nebraska Department of Education (NDE) is honoring and reimbursing school districts for expenditures already made through September 11, 2020 under contracts and agreements for the provisions of services or goods provided to private schools, the NDE notified Nebraska schools of the court order.

For ESSER funds not under contract or agreement for the provision of equitable services to private schools after September 11, 2020, school districts must provide consultation and calculate the minimal proportional share according to the formula required under Section 1117 of the ESEA of 1965, which the USED will enforce to ensure school districts comply with this and other relevant equitable services requirements.

If you have questions, please contact:

Brian Halstead | Brian.Halstead@nebraska.gov Nebraska Department of Education,  Deputy Commissioner

NOTE: Items purchased before September 11, came in after September 11, for which purchase orders, sales order, subscriptions, were sent to vendors on or before September 11, 2020, can be completed since all parties detrimentally relied upon the guidance/interim final rule from the U.S. Department of Education and September 11, 2020 was when the Nebraska Department of Education notified all recipients of the Nebraska CARES Act ESSER subgrant award that the U.S. Department of Education interim final rule guiding equitable services was vacated.

NOTE: Contracts or agreements signed with individuals, or entities to provide services, on or before September 11, 2020, for services to occur in nonpublic schools for the 2020-21 school year as part of equitable services can be honored for the term of the contract or agreement since all parties detrimentally relied upon the guidance/interim final rule from the U.S. Department of Education and September 11, 2020 was when the Nebraska Department of Education notified all recipients of the Nebraska CARES Act ESSER subgrant award that the U.S. Department of Education interim final rule guiding equitable services was vacated.

NOTE: It is important to maintain date specific primary documentation supporting and identifying the administration of, contracting for services, and purchasing for equitable services provided before and after the interim final rule:

1. Invoice,
2. Receipt,
3. Purchase Order/Sales Order,
4. Contract/Agreement for service provided; original and amended, and
5. Emails.