Late Thursday night, the Department of Education (ED) posted an updated statement on the CARES Act webpage saying that “guidance documents represent the ED’s current thinking on a topic. They do not create or confer any rights for or on any person and do not impose any requirements beyond those required under applicable law and regulations. Guidance documents lack the force and effect of law.”
The updated statement specifically acknowledges the statements in the Higher Education Emergency Relief Fund (HEERF) Frequently Asked Question documents, about student eligibility for both the student and institutional portions. The statement addressed the concerns about student eligibility, stating that “the Department will not initiate any enforcement action based solely on these statements because they lack the force and effect of law.” However, the statement did confirm that the underlying statutory terms in the CARES Act are legally binding, as are any other applicable statutory terms, such as the restriction on eligibility for Federal public benefits including such grants. ED maintains that the CARES Act makes clear that the HEERF is funded by taxpayers and is targeted at U.S. citizens.
The statement continues, expressing that ED’s earlier guidance regarding Title IV eligibility for student emergency grants under the CARES Act does not apply to the use of the HEERF institutional allocations to cover any costs associated with significant changes to the delivery of instruction due to the coronavirus.
The Department continues to consider the issue of eligibility for HEERF emergency financial aid grants under the CARES Act and intends to take further action shortly.
Sources:
CARES Act: Higher Education Emergency Relief Fund
NASFAA: In Reversal, ED Will Not Enforce Title IV Eligibility for CARES Act Student Grants, Still Excluding DACA Students