Last Thursday, the Department of Education (ED) issued a preview of its interim final rule regarding the distribution of coronavirus emergency relief grants to students that would help to ensure taxpayer-funded coronavirus relief money does not go to foreign nationals, non-citizens, and students who may be enrolled in ineligible education programs. In the rule, which will become effective immediately once published in the Federal Register, ED points to language in the Coronavirus Aid, Relief, and Economic Security (CARES) Act that includes an “implicit reference to Title IV terms immediately after the phrase ’emergency financial aid grants to students,'” as well as “explicit references to that same Title IV standard following the phrase ‘grants to students'” as its reasoning for restricting the emergency aid.
“It’s clear the CARES Act was written to help Americans recover from the coronavirus pandemic,” said U.S. Secretary of Education Betsy DeVos in a statement. “U.S. taxpayers have long supported U.S. students pursuing higher education, and this rule simply ensures the continuity of that well-established policy.”
Many in the higher education community have expressed concern that the rules described by ED exclude not only undocumented and international students, but also U.S. citizens who haven’t registered with Selective Service, or have a prior drug conviction, among other things.
The interim final rule returns to the language that only students who are Title IV eligible, under section 484 of the Higher Education Act, are eligible for these grants once the final rule is published. ED makes it clear that the guidance includes SAP, Selective Service and other eligibility criteria in Section 484. ED also clarified that enforcement of the Title IV eligibility interpretation will not be retroactive before the date of publication in the Federal Register.
While ED considered waiving some Title IV eligibility requirements that would preclude students from receiving aid, “it was determined that eliminating some eligibility criteria and not others would not be fair across groups of students and would not allow institutions to maximize the use of their existing eligibility confirmation processes.” Institutions should encourage students who currently do not receive Title IV aid to submit the FAFSA in order to determine eligibility, However, students who have not filed a FAFSA, but would otherwise be Title IV-eligible, may submit a self-certification form designed by their institution. The rule does not provide any insight on what schools should do if they have any conflicting information about a non-FAFSA filer’s eligibility for Title IV funds.
Many higher education groups, including NASFAA, the Center for American Progress, and the American Council on Education, have criticized the rule, stating that ED is “ignoring roughly eight million students and their needs.” Critics also point out that the rule is creating more confusion and delays since it has been more than two months after colleges started applying for funds and many schools have already disbursed large portions of their allocated funding.
In addition, ED is currently facing two lawsuits, from the California Community Colleges System and the Washington state’s attorney general, challenging ED’s guidance on how to distribute the emergency grants. Last week, a federal judge granted the motion for preliminary injunction in Washington, which blocked ED’s guidance restricting emergency grant eligibility from being carried out in the state. The ruling prevents ED from “implementing or enforcing the provisions” of both the April 21 guidance and the interim final rule. However, the judge noted that the preliminary injunction does not lift the restrictions of federal welfare law, which prevents international students, those living in the country illegally, and those in the Deferred Action for Childhood Arrivals (DACA) program from receiving public benefits. A decision from the California case is expected soon.
UPDATE: The interim final rule about the coronavirus emergency relief grant eligibility from ED has been published in the Federal Register. The rule became effective immediately once it was published, though it will not be retroactive before the date of publication. A 30-day comment period on the rule is now open.
Sources:
CARES Act IFR Eligibility
ED: U.S. Department of Education Issues Rule to Protect American Taxpayers from Waste, Fraud, and Abuse, Ensure COVID-19 Relief Funds Get to Eligible Students
NASFAA: ED to Publish Interim Final Rule Barring Undocumented, International, and Non-Title IV Eligible Students From CARES Act Emergency Grants
InsideHigherEd: DeVos Formally Limits Emergency Aid
NASFAA: Federal Judge Blocks ED Policy Restricting CARES Act Grant Eligibility in Washington