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Housing & Rental Assistance

How does the ARP impact deadlines for the Emergency Rental Assistance Program?

Both the Consolidated Appropriations Act of 2021[1] (“CAA”), enacted December 27, 2020, and the American Rescue Plan of 2021[2] (“ARP”), enacted March 11, 2021, appropriated funds for the Emergency Rental Assistance (“ERA”) Program. The CAA initially authorized ERA and appropriated $25 billion for the program,[3] while the ARP authorized an additional $21.55 billion to be used for ERA.[4]

The CAA initially required grantees to expend ERA Program funds (“CAA-ERA”) by December 31, 2021, with a possible 90-day extension if requested and approved by the U.S. Department of Treasury (“Treasury”) Secretary.[5] The ARP extended the expenditure deadline for CAA-ERA funds to September 30, 2022; however, there is no built-in provision for a 90-day extension past that deadline.[6]

The ARP requires that appropriated ARP-ERA funds will “remain available until September 30, 2027.”[7] However, a separate subsection states that ERA assistance provided by the ARP “shall remain available through September 30, 2025.”[8] As of now, it remains unclear which of these two deadlines applies to the use of ARP-ERA funds.

The ARP allows the Treasury Secretary to recapture ERA funds that are not obligated by grantees as of March 31, 2022, and to reallocate the funds to individual grantees that, as of that date, have obligated a minimum of 50 percent of the original grant amount. The amount of ERA funds to be reallocated will be based on demonstrated need. [9]

In addition, Treasury established ERA Award Terms and Conditions (“ERA Award T&C”), which explicitly state that the:

Recipient understands and agrees that any funds allocated by Treasury to Recipient that are not disbursed to Recipient in accordance with Section 3201(c)(2) as a subsequent payment will be reallocated by Treasury to other eligible recipients under Section 3201(e). Such reallocation of funds shall be made in the manner and by the date, which shall be no sooner than March 31, 2022, as may be set by Treasury.[10]

The ERA Award T&C further notes that recouped funds not spent by ERA grantees will be reallocated to entities that have spent at least 50 percent of their primary allocation.[11] The deadline to obligate funds that are reallocated under this provision is set forth as follows: 

The period of performance for this award begins on the date hereof and ends on September 30, 2025. Recipient shall not incur any obligations to be paid with the funding from this award after such period of performance ends.[12]

The ARP also provided additional ERA funds for assistance, administration, and housing stability costs (“ARP-ERA”). Treasury’s distribution of 40 percent of the additional ARP-ERA funds was to occur no later than May 10, 2021.[13] The remaining ARP-ERA funds may be distributed to individual grantees that expend 75 percent of the previously provided funds.[14] The remaining funds may be released in tranches to qualifying grantees, and the timing and amount will be based on need, as determined by the Treasury Secretary.[15]

Grantees may consider tracking all ERA expenditures based on the funding sources (CAA-ERA vs. ARP-ERA) to ensure compliance with the different expenditure deadlines and the eligible use requirements. Additionally, Treasury’s Compliance and Reporting Guidance State and Local Fiscal Recovery Funds document states:

Where appropriate, recipients should also include information on your jurisdiction’s use (or planned use) of other federal recovery funds including other programs under the American Rescue Plan such as the Emergency Rental Assistance.[16]

In summary, pursuant to subsection 3201(h) of the ARP, the deadline for usage of CAA-ERA funds is September 30, 2022. The deadline for usage of ARP-ERA funds is either September 30, 2025, or September 30, 2027. It may be prudent for municipalities to engage counsel in order to ensure that recipients of ERA assistance under both the CAA and the ARP are in compliance with statutory mandates, Treasury guidance, and all applicable federal, state, and local mandates.

Last Revised: July 9, 2021

[1] Consolidated Appropriations Act of 2021, available at: https://www.congress.gov/bill/116th-congress/house-bill/133/text.

[2] American Rescue Plan Act of 2021, § 9901, Pub. L. No. 117-2, amending 42 U.S.C. § 801 et seq., https://www.congress.gov/bill/117th-congress/house-bill/1319/text#HAECAA3A95C4E4FFAB6AA46CE5F9CB2B5.

[3] Consolidated Appropriations Act of 2021, at (D)(V)(A)(501), available at: https://www.congress.gov/bill/116th-congress/house-bill/133/text.

[4] American Rescue Plan Act of 2021, § 9901, Pub. L. No. 117-2, at Subsection 3201(a), amending 42 U.S.C. § 801 et seq., available at: https://www.congress.gov/bill/117th-congress/house-bill/1319/text#H0EE2121A8C2946F79734BFEE40109302.

[5] Consolidated Appropriations Act of 2021, at (N)(X)(1001), amended Section 601(d)(3) of the Social Security Act (42 U.S.C. 801(d)(3)) by extending the end of the covered period for CRF expenditures from December 30, 2020, to December 31, 2021, available at: https://www.congress.gov/bill/116th-congress/house-bill/133/text.

[6] American Rescue Plan Act of 2021, § 9901, Pub. L. No. 117-2, at Subsection 3201(h), amending 42 U.S.C. § 801 et seq., available at: https://www.congress.gov/117/bills/hr1319/BILLS-117hr1319enr.pdf. 

[7] Id, at Subsection 3201(a)(1).

[8] Id, at Subsection 3201(g).

[9] Id., at Subsection 3201(e).

[10] Department of Treasury Emergency Rental Assistance Award Terms and Conditions, Paragraph 2, available at: https://home.treasury.gov/system/files/136/ERA2_Grantee_Award_Terms_572021.pdf.

[11] Id.at Paragraph 2.

[12] Id. at Paragraph 6.

[13] American Rescue Plan Act of 2021 § 9901, Pub. L. No. 117-2, at Subsection 3201(c)(1), amending 42 U.S.C § 801 et seq., available at: https://www.congress.gov/bill/117th-congress/house-bill/1319/text#HAECAA3A95C4E4FFAB6AA46CE5F9CB2B5.

[14] Id., at Section 3201(d)(1)(D)(ii)).

[15] Id., at Section 3201(g)).

[16] Department of Treasury, Compliance and Reporting Guidance State and Local Fiscal Recovery Funds, (as of June 24, 2021), at [24], available at: https://home.treasury.gov/system/files/136/SLFRF-Compliance-and-Reporting-Guidance.pdf.