POLICY ALERT: Department of Treasury Issues Updated CRF FAQs

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POLICY ALERT: Department of Treasury Issues Updated CRF FAQs

October 22, 2020

On Monday, October 19, 2020, the Department of the Treasury issued updated Coronavirus Relief Fund Frequently Asked Questions (Treasury CRF FAQs) to supplement Treasury's CRF Guidance for State, Territorial, Local, and Tribal Governments updated as of September 2, 2020. 

These updated FAQs attempt to provide greater clarity and examples of allowable uses of funds in certain instances. The updated CRF FAQs add the following 4 questions: Section A, Questions 57-59 and Section B, Question 13. The updated FAQs revise 3 questions; Section A, questions 42, 49, and 53. We've included the added and revised elements below. The added questions include topics related to public university eligible uses, capital acquisition, and receipt of other non-CRF grant or loans impact on CRF specific grants to eligible entities.

NAFOA sent a letter to the Department of the Treasury and the Office of Management and Budget (OMB) to seek further clarification on the newly added Question 13 within Section B. This question requires clarity related to the status of tribally-owned entities inclusion under the definition of "beneficiaries" for the purpose of the Single Audit Act and 2 C.F.R. Part 200, Subpart F Audit Requirements.

For a complete understanding NAFOA encourages you to review the Treasury CRF FAQs in their entirety. NAFOA will continue to work to increase clarity for tribal governments around the use of funds and compliance requirements of the Coronavirus Relief Fund.
 

Resources

New Questions in the October 19 CRF FAQs:
 

A. Eligible Expenditures

57. Public universities have incurred expenses associated with providing refunds to students for education-related expenses, including tuition, room and board, meal plans, and other fees (such as activities fees). Are these types of public university student refunds eligible uses of Fund payments? 

If the responsible government official determines that expenses incurred to refund eligible higher education expenses are necessary and would be incurred due to the public health emergency, then such expenses would be eligible as long as the expenses satisfy the other criteria set forth in section 601(d) of the Social Security Act. Eligible higher education expenses may include, in the reasonable judgment of the responsible government official, refunds to students for tuition, room and board, meal plan, and other fees (such as activities fees). Fund payments may not be used for expenses that have been or will be reimbursed by another federal program (including, for example, the Higher Education Emergency Relief Fund administered by the Department of Education). 


58. May payments from the Fund be used for real property acquisition and improvements and to purchase equipment to address the COVID-19 public health emergency? 

The expenses of acquiring or improving real property and of acquiring equipment (e.g., vehicles) may be covered with payments from the Fund in certain cases. For example, Treasury’s initial guidance referenced coverage of the costs of establishing temporary public medical facilities and other measures to increase COVID-19 treatment capacity, including related construction costs, as an eligible use of funds. Any such use must be consistent with the requirements of section 601(d) of the Social Security Act as added by the CARES Act.

As with all uses of payments from the Fund, the use of payments to acquire or improve property is limited to that which is necessary due to the COVID-19 public health emergency. In the context of acquisitions of real estate and acquisitions of equipment, this means that the acquisition itself must be necessary. In particular, a government must (i) determine that it is not able to meet the need arising from the public health emergency in a cost-effective manner by leasing property or equipment or by improving property already owned and (ii) maintain documentation to support this determination. Likewise, an improvement, such as the installation of modifications to permit social distancing, would need to be determined to be necessary to address the COVID-19 public health emergency. 

Previous guidance regarding the requirement that payments from the Fund may only be used to cover costs that were incurred during the period that begins on March 1, 2020, and ends on December 30, 2020 focused on the acquisition of goods and services and leases of real property and equipment, but the same principles apply to acquisitions and improvements of real property and acquisitions of equipment. Such acquisitions and improvements must be completed and the acquired or improved property or acquisition of equipment be put to use in service of the COVID-19-related use for which it was acquired or improved by December 30. Finally, as with all costs covered with payments from the Fund, such costs must not have been previously accounted for in the budget most recently approved as of March 27, 2020.
 

59. If a small business received a Small Business Administration (SBA) Payment Protection Program (PPP) or Economic Injury Disaster Loan (EIDL) grant or loan due to COVID-19, may the small business also receive a grant from a unit of government using payments from the Fund? 

Receiving a PPP or EIDL grant or loan for COVID-19 would not necessarily make a small business ineligible to receive a grant from Fund payments made to a recipient. As discussed in previous Treasury guidance on use of the Fund, a recipient’s small business assistance program should be tailored to assist those businesses in need of such assistance. In assessing the business’ need for assistance, the recipient would need to take into account the business’ receipt of the PPP or EIDL loan or grant. If the business has received a loan from the SBA that may be forgiven, the recipient should assume for purposes of determining the business’ need that the loan will be forgiven. In determining the business’ eligibility for the grant, the recipient should not rely on self-certifications provided to the SBA. 

If the grant is being provided to the small business to assist with particular expenditures, the business must not have already used the PPP or EIDL loan or grant for those expenditures. The assistance provided from the Fund would need to satisfy all of the other requirements set forth in section 601(d) of the Social Security Act as discussed in Treasury’s guidance and FAQs, and the business would need to comply with all applicable requirements of the PPP or EIDL program. 

Treasury’s Office of Inspector General has provided the following guidance in its FAQ no. 65 on reporting and recordkeeping that would apply to the recipient: 

The prime recipient is responsible for determining the level and detail of documentation needed from the sub-recipient of small business assistance to satisfy [the requirements of section 601(d) of the Social Security Act], however, there would need to be some proof that the small business was impacted by the public health emergency and was thus eligible for the CRF funds. 

In the above OIG FAQ, “sub-recipient” refers to the beneficiary of the assistance, i.e., the small business.

B. Questions Related to Administration of Fund Payments

13. What are the differences between a subrecipient and a beneficiary under the Fund for purposes of the Single Audit Act and 2 C.F.R. Part 200, Subpart F regarding audit requirements? 

The Single Audit Act and 2 C.F.R. Part 200, Subpart F regarding audit requirements apply to any non-federal entity, as defined in 2 C.F.R. 200.69, that receives payments from the Fund in the amount of $750,000 or more. Non-federal entities include subrecipients of payments from the Fund, including recipients of transfers from a State, territory, local government, or tribal government that received a payment directly from Treasury. However, subrecipients would not include individuals and organizations (e.g., businesses, non-profits, or educational institutions) that are beneficiaries of an assistance program established using payments from the Fund. The Single Audit Act and 2 C.F.R. Part 200, Subpart F regarding audit requirements do not apply to beneficiaries. 

Revised Questions in the October 19 CRF FAQs:

*highlighted elements are what have been revised since the previous version of CRF FAQs

A. Eligible Expenditures

42. May funds be used to satisfy non-federal matching requirements under the Stafford Act? 

Yes, payments from the Fund may be used to meet the non-federal matching requirements for Stafford Act assistance, including FEMA’s Emergency Management Performance Grant (EMPG) and EMPG Supplemental programs, to the extent such matching requirements entail COVID-19-related costs that otherwise satisfy the Fund’s eligibility criteria and the Stafford Act. Regardless of the use of Fund payments for such purposes, FEMA funding is still dependent on FEMA’s determination of eligibility under the Stafford Act. 

49. Are States permitted to use Coronavirus Relief Fund payments to satisfy non-federal matching requirements under the Stafford Act, including “lost wages assistance” authorized by the Presidential Memorandum on Authorizing the Other Needs Assistance Program for Major Disaster Declarations Related to Coronavirus Disease 2019 (August 8, 2020)? 

Yes. As previous guidance has stated, payments from the Fund may be used to meet the non-federal matching requirements for Stafford Act assistance to the extent such matching requirements entail COVID-19-related costs that otherwise satisfy the Fund’s eligibility criteria and the Stafford Act. States are fully permitted to use payments from the Fund to satisfy 100% of their cost share for lost wages assistance recently made available under the Stafford Act. If a State makes a payment to an individual under the “lost wages assistance” program and later determines that such individual was ineligible for the program, the ineligibility determination has the following consequences: 

  • The State incurs an obligation to FEMA in the amount of the payment to the ineligible individual. A State’s obligation to FEMA for making an improper payment to an individual under the “lost wages assistance” program is not incurred due to the public health emergency and, therefore, payments made pursuant to this obligation would not be an eligible use of the Fund. 
  • The “lost wages assistance” payment to the ineligible individual would be deemed to be an ineligible expense for purposes of the Fund, and any amount charged to the Fund (e.g., to satisfy the initial non-federal matching requirement) would be subject to recoupment. 

53. May Fund recipients incur expenses associated with the safe reopening of schools? 

Yes, payments from the Fund may be used to cover costs associated with providing distance learning (e.g., the cost of laptops to provide to students) or for in-person learning (e.g., the cost of acquiring personal protective equipment for students attending schools in-person or other costs associated with meeting Centers for Disease Control guidelines). 

Treasury recognizes that schools are generally incurring an array of COVID-19-related expenses to either provide distance learning or to re-open. To this end, as an administrative convenience, Treasury will presume that expenses of up to $500 per elementary and secondary school student are eligible expenditures, such that schools do not need to document the specific use of funds up to that amount. 

If a Fund recipient avails itself of the presumption in accordance with the previous paragraph with respect to a school, the recipient may not also cover the costs of additional re-opening aid to that school other than those associated with the following, in each case for the purpose of addressing COVID-19: 

  • expanding broadband capacity; 
  • hiring new teachers; 
  • developing an online curriculum; 
  • acquiring computers and similar digital devices; 
  • acquiring and installing additional ventilation or other air filtering equipment; 
  • incurring additional transportation costs; or 
  • incurring additional costs of providing meals. 

Across all levels of government, the presumption is limited to $500 per student, e.g., if a school is funded by a state and a local government, the presumption claimed by each recipient must add up to no more than $500. Furthermore, if a Fund recipient uses the presumption with respect to a school, any other Fund recipients providing aid to that school may not use the Fund to cover the costs of additional aid to schools other than with respect to the specific costs listed above. 

The following examples help illustrate how the presumption may or may not be used: 

Example 1: State A may transfer Fund payments to each school district in the State totaling $500 per student. State A does not need to document the specific use of the Fund payments by the school districts within the State. 

Example 2: Suppose State A from example 1 transferred Fund payments to the school districts in the State in the amount of $500 per elementary and secondary school student. In addition, because State A is availing itself of the $500 per elementary and secondary school student presumption, State A also may use Fund payments to expand broadband capacity and to hire new teachers, but it may not use Fund payments to acquire additional furniture. 

For any other questions or concerns, please contact Emery Real Bird, Financial Management Policy Specialist, at Emery@nafoa.org or (202) 945-7750.