Last week, the U.S. Department of Education issued a Dear Colleague Letter and FAQs document (see attachment) that applies to any states and school districts that spent any ESSER, GEER, and EANS COVID-relief funds for a renovation, remodeling, construction, or another real property project (including land acquisition).
The guidance addresses real property recording and reporting requirements districts and states must follow when there is a federal interest in that property since federal funds were used in the project. It is relevant for any SEAs and LEAs that used COVID-relief funds to make facility improvements, including for improving indoor air quality; remediating lead, mold, and other environmental hazards in aging facilities; and keeping schools safe and healthy for in-person learning.
The guidance clarifies requirements under USED and the Office of Management & Budget (OMB), which says SEAs & LEAS must:
1) RECORD notices of federal interest (NFIs), or other public notices of record such as liens, regarding that Federal interest for real property acquired or improved with a federal award. The federal agency may also require certain property use and disposition conditions. (See 2 CFR 200.316)
a. USED has the discretion to allow some flexibility with these requirements, and decided to set a threshold for recording federal interest. With limited exceptions, only SEAs/LEAs that spent $1 million or more in COVID-relief funds for real property projects must record all NFIs by January 28, 2025.
2) REPORT annually, for at least 15 years, the status of real property in which the federal government has made a monetary investment, and therefore has an ongoing interest in the property. (See 2 CFR 200.330).
a. All SEAs/LEAs must meet this reporting requirement, regardless of the amount of Federal interest.
USED/OMB says the purpose of these requirements is to:
· Ensure that a facility can continue to be used for educational purposes after a grant has ended;
· Establish the level of public investment in the facility that may be recouped if the property is subsequently transferred to private ownership;
· Promote nondiscrimination, including accessibility, while the property is used for a grant's educational purpose.
For more information on LEA & SEA federal real property recording and reporting requirements, please see USED's guidance (attached). If you have questions or concerns about this guidance, please contact us. Your feedback can help inform our ongoing engagement with the Department on this issue.
Note: To access the PDF forms referenced in USED's guidance on the grants.gov website, you may not be able to access them if using Google Chrome; we recommend trying Firefox or another web browser.
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ASBO USA
asbousa@asbointl.org
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