Three paragraphs that changed the world…

IMPORTANT NOTE: Yup! You guessed it. The guidance in this post was contradicted by later guidance from the Department of Education. See here for the most recent guidance. This post is left as it was originally published for historical purposes (and because, who knows, we may be back here again).

Well, sometimes, despite your best efforts, the world changes around you, And it happened tonight… Again…

Hello rug. Goodbye everything you thought you knew…

Tonight at about 7:00, the Department of Education published the following three paragraphs on their CARES Act / Higher Education Emergency Relief Funds page throwing a big curve ball into what we thought we knew:

Updated statement 5/21/2020:The Department has stated on its guidance portal that “guidance documents lack the force and effect of law.” See U.S. Department of Education’s Guidance Homepage, (“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.”); compare, e.g., OPE Guidance Documents, (“Guidance documents lack the force and effect of law.”). On February 26, 2020, the Department published a Federal Register notice stating this principle along with an announcement of the existence and location of its guidance portal. Notice of Guidance Portal, 85 Fed. Reg. 11056, The statement applies to all of the Department’s guidance except as authorized by law or as incorporated into a contract.

This includes, for example, the statements in response to question 5 of the Higher Education Emergency Relief Fund Institutional Frequently Asked Question document located here and question 9 of the HEERF Student FAQ document located here explaining that only students who are or could be eligible to participate in programs under Section 484 in Title IV of the Higher Education Act of 1965, as amended, may receive emergency financial aid grants. HEERF Institutional FAQs at 2, HEERF Student FAQs at 4. The Department will not initiate any enforcement action based solely on these statements because they lack the force and effect of law. In contrast, the underlying statutory terms in the CARES Act are legally binding, as are any other applicable statutory terms, such as the restriction in 8 U.S.C. § 1611 on eligibility for Federal public benefits including such grants.

In addition, the Department reiterates its guidance that although emergency financial aid grants under Section 18004(c) of the CARES Act may only be given to those who are or could be eligible to participate in programs under Section 484 in Title IV of the Higher Education Act of 1965, as amended (HEA), but emphasizes that that guidance is specific to the distribution of emergency financial aid grants and does not apply to the use of 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.

So what does this mean? Remember what I said about having to be eligible for section 484 of the Higher Education Act? Just kidding. The Department of Education has been facing lawsuits about narrowly interpreting the actual language from the CARES Act so they re-positioned. What they are saying is that their guidance still stands, but they are not enforcing it. So basically schools do not need to follow this rule. Anyone who is enrolled is qualified to receive CARES Grant (sort of like I said at first).

Except (new wrinkle) you have to be a US Citizen or Eligible Non-citizen to qualify (in other words, you cannot be undocumented or international). This is the reference to 8 U.S.C. § 1611 which specifically prohibits “an alien who is not a qualified alien” (their words, not mine) from receiving public benefits (like the CARES Act HEERF money. So, this money can only be awarded to US Citizens or Eligible Non-citizens.

Except (see paragraph 3) when it comes to the institutional portion of the funds. Money that an institution spends out of its allocation in emergency grants still have to follow these (amended) rules, but if an institution is doing something that doesn’t directly give cash grants to students (like paying for online services, or buying laptops), undocumented and international students can qualify for these programs.

Oh, and by the way, they are still working on more guidance.


So what is a student to do? Check with your school and see where they are in the process. If you were not eligible before because of SAP, defaulted loans, or some other 484 issue, ask again. Oh, and be kind to your financial aid officer. They just had the rug pulled out from under them.