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Thursday, January 24, 2013

Education-Related Regulatory Flexibilities, Waivers, and Federal Assistance in Response to Disasters and National Emergencies



Cassandria Dortch, Coordinator
Analyst in Education Policy

Rebecca R. Skinner
Specialist in Education Policy

David P. Smole
Specialist in Education Policy


The 21st century has seen the operation of elementary, secondary, and postsecondary educational institutions and the education of the students they enroll disrupted by natural disasters, such as hurricanes and floods, and by national emergencies, such as the terrorist attacks of September 11, 2001. This report is intended to inform Congress of existing statutory and regulatory provisions that may aid in responding to future disasters and national emergencies that may affect the provision of or access to education and highlight the actions of previous Congresses to provide additional recovery assistance.

The majority of federal aid for disaster management is made available from the Federal Emergency Management Agency (FEMA) under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act; P.L. 93-288). Under the Stafford Act, public school districts, charter schools, private nonprofit educational institutions, public institutions of higher education (IHEs), and federally recognized Indian tribal governments are eligible to receive assistance for activities such as debris removal, infrastructure and equipment repair and replacement, hazard mitigation, and temporary facilities. The Stafford Act also authorizes federal agency heads to waive administrative, but not statutory, requirements to expedite assistance.

In addition to the assistance available through the Stafford Act, assistance is available through numerous provisions in education laws. At the elementary and secondary level, there are several existing provisions that may be helpful in providing assistance in response to a disaster. The Elementary and Secondary Education Act (ESEA) grants the Secretary of Education authority to issue waivers of any statutory or regulatory requirement of the ESEA for a state educational agency (SEA), local educational agency (LEA), Indian tribe, or school that receives funds under an ESEA program and requests a waiver. In response to recent disasters, waivers have been granted to address funding flexibility issues and accountability requirements. The Individuals with Disabilities Education Act (IDEA) grants the Secretary of Education authority to waive state maintenance of effort (MOE) requirements and requirements to supplement, not supplant, federal funds under certain circumstances. The Secretary is not, however, able to waive all statutory and regulatory requirements with respect to the acts. For example, under the ESEA the Secretary may not waive civil rights requirements or prohibitions against the use of funds for religious worship or instruction. Under IDEA, for example, the Secretary may not grant waivers from the right to a free appropriate public education.

At the postsecondary level, various provisions exist to ensure continuity of operations and continuity of federal funding following a disaster. Under the Higher Education Act (HEA), the Secretary of Education has authority to waive several of the requirements for aid recipients, IHEs, and financial institutions when a disaster has been declared. In particular, waivers have been provided from various requirements related to the disbursement, repayment, and administration of federal student aid. Under Title 38 of the U.S. Code, the Department of Veterans Affairs (VA) may extend payment of veterans educational assistance benefits to cover periods when enrollment is interrupted.

In response to the Gulf Coast hurricanes, Congress enacted legislation that provided short-term programs or temporary allowances in order to aid recovery from 2005 to 2009. Additional funds were appropriated to help affected institutions restart, replace equipment, or renovate. Funds were appropriated to support the recruitment, retention, and compensation of elementary and secondary school staff. Funds were also appropriated to provide grants to postsecondary students and

support the enrollment of students displaced or made homeless by the disaster. Congress allowed the Secretary of Education to waive or modify the statutory and regulatory requirements of some programs on a temporary basis to ensure funds were targeted to affected populations and institutions at the postsecondary level and to ease the associated financial and accountability burden at the elementary and secondary levels.

As of the date of this report, Congress had not enacted legislation to specifically support education as a result of and in the aftermath of Hurricane Sandy, which primarily affected areas of the mid-Atlantic and northeast in October 2012.


Date of Report: January 2, 2013
Number of Pages: 34
Order Number: R42881
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