electionlineWeekly on Sudden Changes to HAVA Section 261 Funding

[Image via acl.gov]

One of the lesser-known but important parts of the Help America Vote Act (HAVA) was the provision in Section 261 for states to receive funding to help with improving access to the polls for people with disabilities. But recently, states have encountered frustrations with the program because of a sudden change in the reporting system for the funds. electionlineWeekly’s Mindy Moretti has talked to people in the field about the changes and here’s her story:

Earlier this year, just as state and local elections officials were dotting all their Is and crossing all their Ts for the 2016 election season, states received some unwelcome news from the Administration for Community Living (ACL) of the U.S. Department of Health and Human Services.

The grant project period for grants available through Sec. 261 of the Help America Vote Act was set to end June 30 instead of September 30 as it had in the early years of the grant program. Although states have had five years to use and report on these funds, the changed deadline was cause for concern.

For states, the problem is twofold. Not only was the deadline moving up by several months, there were also issues with ACL’s reporting system that began in 2015 which caused as many as 22 states to have their grant funds — about $3 million — be returned to the U.S. Department of the Treasury. Once those funds go back to Treasury, they are inaccessible by the grantee and grantor.

“… For every grant year preceding 2010, states were able to expend, draw down, receive, report and reconcile funds until September 30 of the federal fiscal year, and we had every reason to think that would be true for FFY 2010 [Sept. 30, 2015 deadline], especially because we received an email reminder in mid-September that 2010 funds needed to be expended and drawn down by the end of September,” said Emily Dean, director of communications for the Montana secretary of state’s office.

HAVA authorizes the states to use these grants to make voting accessible for voters living with disabilities. States have used the funds for a variety of expenditures including to ensure all polling places are ADA complaint, providing training for voters living with disabilities on the use of the assistive ballot marking devices so they can be comfortable when appearing in the polling location to vote, and providing educational materials that are made available on our website to assist these voters in knowing how they can gain access to voting.

In North Dakota, the state has had to spend FY11 funds — $44,000 — to cover costs for FY10 expenditures that were not processed by ACL’s new reporting system.

“Because of this glitch in the HHS reporting utility, we were forced to attribute the legitimate expenditures made last summer against the FY 2011 grant funds instead of the FY 2010 as we should have been able to and as we had with other HHS grants in the previous years,” explained Jim Silrum, deputy secretary of state of North Dakota.

In his position as deputy secretary of state Silrum has dealt with the Sec. 261 grants since they were first available in 2003 and said 2015 was the first year there was ever a problem.

“I have been the Deputy Secretary since a time prior to receiving our first HHS grant award in 2003; therefore, I can tell you with certainty that the system HHS has the states use for reporting on the expenditure of our grants changed in such a way last year that it did not allow us to report our expenditures in the last quarter of the 2015 federal fiscal year (July, August, and September of 2015) against the 2010 grant funding, which was not to expire until after the last day in September,” Silrum said.

According to Christine Phillips, director of external affairs for ACL, it’s because of these issues states were having with ACL’s reporting system that the change to the grant project period was put in place.

“For a variety of reasons, some states have had issues accessing funds near the end of the project period. Consequently, funds to states intended to use support the mission of the program have been returned to the U.S. Department of the Treasury,” Phillips explained. “To prevent that problem, we moved the project end date to June 30. This way, if there are issues, we have the time to address them before the funds expire and are beyond our access.”

Phillips added ACL has been working with states for several years to encourage them to spend their remaining funds.

“Although the grant funding didn’t expire for five years, the money was really intended to be used in the year it was awarded. The funds that are expiring this year were awarded in 2011, so states have had nearly five years to use the funds.”

States were notified in April of 2016. The entire North Dakota Congressional delegation signed a letter requesting HHS Secretary Sylvia  Burwell answer some questions and correct the situation for the 22 states, including North Dakota, that had their remaining 2010 HHS grant funds de-obligated back to the US Treasury one quarter of the final year of the grant too early.

The National Association of Secretaries of State (NASS) and the U.S. Election Assistance Commission (EAC) also joined the discussion.

“NASS has been working on this issue since April 2016, when we first heard about a problem with 2010 and 2011 HHS funds from state members,” explained Leslie Reynolds, executive director of the National Association of Secretaries of State. “Despite numerous phone calls and emails with HHS, we still don’t know what happened with the agency’s Payment Management System.”  

Reynolds said after countless emails and phone calls back and forth with ACL in exasperation, she began advising NASS members to speak directly with ACL chief of staff Rick Nicholls.

“HHS continues to cryptically reference ‘systems issues’ in its communications with us.  The ‘issues’ occurred at the end of FY2015, but HHS didn’t begin communicating formally with states about the situation until February/March 2016,” Reynolds said. “Obviously each situation for each state is a bit different, depending on when they drew down 2010 funds.”

On May 31, EAC drafted a letter to ACL seeking clarification on why the the 2010 funds weren’t processed and why the 2011 project period had been moved up by three months. In the letter, EAC Chairman Thomas Hicks sought clarification regarding the actual awarding and expiration timetable of the awards and correspondence to award recipients stipulating for the closing of awards before the expiration of the funds.

On June 10, ACL announced that they would allow states to apply for an extension for the 2011 funds with the next closing date being August 31, 2016. The deadline to apply for the extension was this week. According to Phillips, 10 states applied for extensions and all 10 received the extension.

“I believe that it is very important that states have access to the grants to help voters with disabilities participate in the democratic process,” Hicks said. “I am glad that the EAC was able to facilitate the conversation between the States and HHS, which administers these particular grants.”

Peggy Reeves, assistant secretary of state for elections, legislative and intergovernmental affairs in Connecticut said the state is still hoping to receive the Sec. 261 funds. They are one of the 10 states to request and receive the extension.

“Sec. 261 funds can be an incredible benefit to the state and are a valuable resource,” said Reeves. “However, it is no secret that the reporting requirements could be clearer and less burdensome. This has made accessing funds in the past quite difficult. Nevertheless, we do hope to work with them in the future.”

Silrum isn’t too sure about the extension and what, if anything can be done about the funds that were not appropriated in 2015 due to the “technical glitch.”

“As of this point, we are at a standstill on this matter in North Dakota. We have spent all of our remaining HHS grant money because we had valuable expenditures to make and put in place and we didn’t want to experience this reporting issue again,” Silrum said. “I want to make sure that one thing is abundantly clear – we are not asking for the FY 2010 or FY 2011 funding to be re-appropriated by Congress. We are just asking for the opportunity to correctly report on our expenditures to the FY 2010 grant and then spend what would then be remaining of our FY 2011 funding prior to the end of its grant period, which will be September 30, 2016.”

Kudos to Mindy for reporting on this issue and sharing the (admittedly complicated) story with the field. It might feel like “inside baseball” story but it’s really not; with HAVA and its associated funding receding even further into history – and prospects for Congressional extension slim at best – states can use every federal dollar they’ve been promised to improve elections in their communities. Here’s hoping that whatever systems issues or policy clarifications occur, participating states have the ability to access to use their Section 261 funds as intended.

Stay tuned …