## June 17, 2020 CARES Act Update

On June 17, 2020, the Department published its Interim Final  Rule (IFR) regarding Eligibility of Students at Institutions of Higher  Education for Funds Under the CARES Act here.  The IFR constitutes the Department’s binding final rule regarding student  eligibility for HEERF assistance, and carries the force of law, except as  enjoined with respect to the following entities:

-  IHES in the State of Washington : The  U.S. District Court for the Eastern District of Washington has enjoined the  Department from restricting which students will receive HEERF emergency  financial aid grants to only those students who are eligible for federal  financial aid under Title IV. However, that court has affirmed that the  restrictions of 8 U.S.C. § 1611 still apply to emergency financial aid grants  to students made by any IHE in the State of Washington.Washington v.  DeVos , No. 2:20-cv-00182-TOR, ECF No. 31, 63.

- California Community Colleges  : The  U.S. District Court for the Northern District of California has preliminarily  enjoined the Department from enforcing any eligibility requirement for students  to receive HEERF emergency financial aid grant, including Title IV’s  eligibility criteria and applicable restrictions under 8 U.S.C. § 1611(a) “with  respect to any community college in California.”  Oakley v. DeVos, No.  4:20-cv-03215-YGR, ECF No. 44.

The Department will update this  information as appropriate based on future developments. 

## May 21, 2020 CARES Act: Higher Education Emergency Relief Fund Updated Statement

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,  https://www2.ed.gov/policy/gen/guid/types-of-guidance-documents.html (“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, https://www2.ed.gov/about/offices/list/ope/guidance.html (“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, https://www.federalregister.gov/d/2020-03811.  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 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.

## September  8, 2020 – CARES Act Update for Institutions in Massachusetts

*IHEs in the State of Massachusetts**:*The U.S. District Court  for the District of Massachusetts has preliminarily enjoined the Department  from enforcing the IFR as to any institution of higher education in the  Commonwealth of Massachusetts and as to any student attending a school that is  located within the Commonwealth of Massachusetts. *Massachusetts v. DeVos,  No. 1:20-cv-11600-LTS, ECF No. 3.*

 

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