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The Department of Education has announced that because the guidance it has offered in the form of FAQ documents does not hold the weight of law, it cannot enforce specific provisions contained within – but added that it does still expect schools to comply with the guidance.

NACUBO urges administrators responsible for distributing Coronavirus Aid, Relief, and Economic Security (CARES) Act emergency grant aid to students to review the latest notice carefully with counsel and risk advisors. The guidance lacks clarity, and institutions will want to review their protocols against the language promulgated by ED.

Intensifying the ever-shifting landscape, ED also stated, “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.”

CARES Act Grant Eligibility and Enforcement

In the FAQ on the Higher Education Emergency Relief Fund (HEERF) emergency financial aid grants to students, ED states that only students who are or could be eligible to participate in Title IV programs can receive the CARES Act grants. On May 21, however, ED posted on its CARES Act page that “guidance documents lack the force and effect of law” and that it “will not initiate any enforcement action based solely” on statements presented in the FAQ. So, while ED has not rescinded the Title IV requirement, it cannot legally enforce it in its current form. The Department’s post stated that it “continues to consider the issue of eligibility for HEERF emergency financial aid grants under the CARES Act and intends to take further action shortly.” 

The most reliable way to comply with ED’s Title IV requirement is to have a student’s completed FAFSA.

In its May 21 post, ED noted that restrictions for Deferred Action for Childhood Arrivals (DACA) students, international students, and undocumented students are still in effect, as they are legally codified in statute beyond ED’s FAQ guidance, meaning schools would be breaking the law by providing these grants to those students.

While this news allows schools to more easily provide these grants to certain students, institutions should still follow the terms of the grants as described in the Certification and Agreement and in ED’s FAQs.

Regulatory Flexibilities

ED also has offered additional guidance on a wide variety of issues related to campus transitions as a result of COVID-19. NACUBO has highlighted below several key provisions of the guidance that are most relevant to business officers but urges members to review the notice in its entirety.

Paycheck Protection Program

Institutions receiving Paycheck Protection Program (PPP) loans can have the loan forgiven, with income recognition, by meeting certain requirements. ED has clarified that institutions that have not yet recognized income can include an estimate of the amount of forgiveness of PPP loan funds the institution expects to earn, on their audited financial statements for the year in which the loan was received. If this is attested to by the institution’s auditor, ED will exclude that portion of the PPP loan from total liabilities and include it as income for the purpose of calculating the school’s composite score.

Financial Statements and Compliance Audits

ED has extended financial statement and audit deadlines by six months. 

Campus-Based Aid Waivers

The CARES Act waives the non-federal share requirement for Federal Work-Study (FWS) and Federal Supplemental Educational Opportunity Grants (FSEOG) for award years 2019-20 and 2020-21. An institution may reimburse itself from the FWS allocation for the non-federal portion of wages paid to students on or after March 13, 2020, and may, for all disbursements of FSEOG made on or after March 13, reimburse itself from the FSEOG allocation for the nonfederal portion of FSEOG awards contributed through a fund-specific match. 

Distance Education

ED is expanding the broad approval for the use of distance education as provided in earlier guidance to include payment periods that overlap March 5, 2020, or that begin on or between March 5 and December 31, 2020. 

Return to Title IV

The CARES Act waives the requirement for institutions to perform Return to Title IV (R2T4) calculations for a student who withdraws related to a qualifying emergency. The May 15 guidance clarifies that this is for any student who had been in attendance in a payment period that began on or included March 13, 2020, as long as the withdrawal was related to the qualifying emergency—in this case, COVID-19. This includes students who withdrew during that period for whom the institution had already performed an R2T4 calculation and returned funds. If that is the case, schools should re-disburse the Title IV funds to those students, make adjustments on ED’s Common Origination and Disbursement (COD) website, credit students’ accounts, and request any necessary funds from ED. The guidance also includes details for how to document instances for students who have withdrawn but for whom no R2T4 calculations have been made. 

Institutions that moved students from ground-based instruction to distance learning, closed campus housing or other facilities, or experienced other interruptions in instruction may consider all withdrawals from ground-based students during the covered period to have been the result of circumstances related to COVID-19. For institutions that did not undergo changes in delivery or campus operations—or for online students—the school will be required to obtain a written attestation from the student explaining why the withdrawal was a result of the national emergency.

Office of Civil Rights' Reminders

ED’s Office for Civil Rights (OCR) issued guidance on the COVID-19 emergency in the form of a Q&A. OCR stated that institutions still have to comply with federal disability laws during the pandemic. This includes providing accommodations for students with disabilities so they have an equal opportunity to access educational programs, while protecting the health and safety of the student and those providing the education to the student.

The OCR Q&A also reminded institutions that they still must follow Title IX rules, even if they are operating online. The Q&A stated that institutions may not adopt “a blanket policy putting all investigations or proceedings on hold until campuses resume normal operations, or a policy of refusing to accept and respond to new complaints.” OCR instructed institutions to make good-faith efforts to respond promptly and effectively to reports of discriminatory harassment, and to conduct fair, impartial investigations.


Bryan Dickson

Director, Student Financial Services and Educational Programs


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