Private schools that don’t enroll at least 40 percent of their students from low-income backgrounds may miss out on getting certain funding from the coronavirus relief package enacted in March, according to rules released by the U.S. Department of Education.

The requirements say that to qualify for a share of $2.75 billion in relief earmarked for private schools in the American Rescue Plan, private schools must show that the percentage of their enrollment of students from low-income families is at least 40 percent, based on certain data sources.

However, states can also submit an alternative percentage as a minimum threshold to U.S. Secretary of Education Miguel Cardona for approval.

To determine schools’ eligibility for this Emergency Assistance to Non-Public Schools with respect to enrollment of students from low-income backgrounds, states can use data from free and reduced-price meal programs, information from E-Rate programs that support internet services for schools and libraries, data from financial assistance or scholarships, or survey data collected by states. However, the poverty threshold states use can’t exceed 185 percent of the 2020 federal poverty level, which is $48,470 for a four-person household.

The department justifies the 40-percent threshold by noting that it has typically been used as a “measure of significant poverty” when identifying Title I schools under federal law.

“Given Congress’ recognition of 40 percent as significant within the context of Title I, we believe it presents a reasonable threshold,” for determining which private schools can access the American Rescue Plan program, the department states.

In addition, the new requirements say schools receiving Emergency Aid to Non-Public Schools must be those “most impacted” by the pandemic. To determine impact, states can look at coronavirus infections or deaths per capita in the communities served by the private school, the impacts of lost instructional time, or the local economic impacts. (States can consider one or more of these factors when allocating the money.)

The requirements note that American Rescue Plan says the aid for private schools shall “provide services or assistance to non-public schools that enroll a significant percentage of low-income students and are most impacted by the [COVID-19] emergency,” and that the department’s new requirements provide definitions for that language. The requirements go on to say that this differs from the language in the December 2020 coronavirus relief deal that said Emergency Aid to Non-Public Schools shall “prioritize services or assistance” to such private schools.

These final requirements from Biden’s Education Department, released Friday, mark a sharp departure from the Trump administration’s position on COVID-19 relief rules involving private schools. Last year, former education Secretary Betsy DeVos sought to require school districts to share CARES Act coronavirus aid with private school students in general, in a move broadly seen as a bid to support private schools during the pandemic.

DeVos argued that those students needed and were entitled to as much help as their public school counterparts. But her critics charged her with deliberately misreading the law in order to benefit private schools, including well-heeled ones. Ultimately, the courts blocked DeVos’ efforts, and she backed down.

Congress also provided $2.75 billion in Emergency Assistance to Non-Public Schools as part of the major COVID-19 relief package enacted last December. But it wasn’t part of the CARES Act from March 2020.

The department makes it clear that it wants private schools with relatively large shares of students in poverty to have access to American Rescue Plan funding. However, some researchers have long questioned the reliance on free and reduced-price meals statistics as a proxy for poverty, and officials are exploring alternatives.

Data from the federal government indicates that the share of private school students who are from poor households, based on the U.S. Census Bureau threshold, is significantly lower than the share of such students in public schools.

The new American Rescue Plan requirements also say Emergency Assistance to Non-Public Schools funding can’t be used to provide reimbursements to private schools.

The requirements are due to be published in the Federal Register.