Murray, DeLauro Urge DeVos to Reverse Unauthorized Guidance Excluding 7.5 Million Students From Emergency Financial Aid

Murray, DeLauro: “The extreme eligibility restrictions… were added by the Department without any directive from Congress and without any statutory basis”

(Washington, D.C.) – U.S. Senator Patty Murray (D-WA), ranking member of the Senate Health, Education, Labor, and Pensions (HELP) Committee, and Congresswoman Rosa DeLauro (CT-03), Chair of the House Appropriations Subcommittee on Labor, Health and Human Services, and Education, urged Secretary of Education Betsy DeVos to reverse her harmful and unauthorized guidance that will restrict more than 7.5 million students from accessing sorely needed emergency financial aid provided under the under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). In a letter, the lawmakers stressed that the barriers created by the U.S. Department of Education do not exist in the law and will prevent aid from reaching students that Congress intended to support.

“Secretary DeVos pushing DACA recipients, undocumented students and other vulnerable students out of needed relief from the CARES Act is cruel. This virus doesn’t discriminate when it comes to the students who are impacted, and our response absolutely shouldn’t either,” said Senator Murray. “It is completely unacceptable that despite such dire need for assistance among students during this unprecedented time, Secretary DeVos has restricted emergency financial aid without any authorization. This is absolutely not what Congress intended, and Secretary DeVos must reverse this guidance immediately.”

“Secretary DeVos’s latest guidance unfairly restricts emergency financial relief for millions of students at institutions of higher education who need it most,” said Congresswoman DeLauro. “The Department’s interpretation of the CARES Act has no basis in the text of the law nor Congressional intent. Students are struggling to make ends meet and keep food on the table just like countless people across the country right now due to the COVID-19 pandemic. Secretary DeVos should be making it easier for them to access this critical aid, not harder. I urge her to reverse course.”

The 7.5 million students that could be barred from funding under the restrictive guidance includes undocumented students, DACA recipients, students who have not filled out the FAFSA, students in adult basic education and dual enrollment programs who do not have a high school diploma, and more. Additionally, the U.S. Department of Education unnecessarily prohibited students from using emergency financial aid for charges from their institutions even with their permission. This means that students relying on campuses’ limited food and housing services during this crisis—such as students experiencing homelessness and former foster youth—will face additional barriers to meeting these costs.

“The extreme eligibility restrictions, which were added by the Department without any directive from Congress and without any statutory basis, represent an unconscionable response to the virus that does not discriminate against which students are impacted by it,” wrote the lawmakers in the letter.

Read the full letter below and HERE.

May 1, 2020

The Honorable Betsy DeVos

Secretary of Education

U.S. Department of Education

400 Maryland Avenue, S.W.

Washington, DC 20202

Dear Secretary DeVos:

We urge you to reverse your harmful and unauthorized guidance that significantly restricts the flexibility for emergency financial aid to students provided under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Public Law No. 116-136. The federal resources provided in the CARES Act are critical to institutions of higher education (“institutions”) and students dealing with the coronavirus disease (COVID-19) pandemic. Unfortunately, your decision could deny CARES Act relief to more than 7.5 million students in higher education.

Of the $12.6 billion allocated by formula under the Higher Education Emergency Relief Fund (HEERF) of the CARES Act, no less than 50 percent was designated for emergency financial aid to support students’ cost of attendance. Students across the country are facing severe disruptions of their programs of study. They are under incredible financial strain and need additional support to continue their education while protecting their health and caring for their families.

Unfortunately, the U.S. Department of Education (“Department”) released guidance 12 days after announcing emergency financial aid allocations under the CARES Act that imposed new and unwarranted restrictions limiting which students can receive funding. The barriers created by the Department do not exist in the CARES Act, will prevent emergency financial aid from reaching many students with financial need that Congress intended to support, and add substantial burden to implementation of the law.

First, the Department asserts that all emergency financial aid recipients under the CARES Act must be eligible for assistance under Title IV of the Higher Education Act of 1965 (HEA). This limitation excludes students who do not meet academic progress standards, students who have not registered for the Selective Service, students with some types of drug convictions, certain students in adult basic education and dual enrollment programs who do not have a high school diploma, international students, and students who are not U.S. citizens or permanent residents, including all Dreamers, Deferred Action for Childhood Arrival (DACA) recipients, and other undocumented students.

The Department’s requirement that emergency financial aid recipients have “demonstrated eligibility to participate in programs under Section 484 of the HEA” also effectively requires that students fill out a Free Application for Federal Student Aid (FAFSA). There is no other reliable or efficient way for an institution to determine and verify the extensive eligibility requirements of Title IV. A significant number of students enrolled in higher education—particularly low-income students—have not filled out the FAFSA. It is unreasonable to ask current students who are working to finish their terms to fill out a detailed form to receive emergency financial aid. According to the most recent estimates of FAFSA filing rates for 2015-16 from the National Postsecondary Student Aid Study, more than 7.5 million undergraduate and graduate students do not file a FAFSA. Thus, the Department’s unjustified decision to restrict emergency financial aid grants to Title IV eligible students will deny support to a vast number of working families.

The Department’s decision to restrict eligibility for emergency financial aid based on Title IV of the HEA is also plainly inconsistent with prior Department documentation. In the official “Certification and Agreement” form that institutions must sign to receive funding, the Department clearly states that, “The Secretary does not consider these individual emergency financial aid grants to constitute Federal financial aid under Title IV of the HEA.” It is unclear how the Department can impose federal financial aid requirements on funds it does not consider to be federal financial aid. The Department also emphasized in a cover letter to institutions the flexibility of emergency financial aid and discretion to institutions afforded under the CARES Act, stating that “the only statutory requirement is that the funds be used to cover expenses related to the disruption of campus operations due to coronavirus…” The Department’s subsequent guidance significantly limited this flexibility.

The Department’s inconsistency continues with its consideration of the 90/10 rule under Title IV of the HEA. While the Department managed to apply federal financial aid requirements based on the HEA to students, it chose to exempt funds under the CARES Act from counting as revenues considered in determining whether  for-profit institutions meet the requirement to derive not less than ten percent of revenues from non-federal financial aid sources. The guidance indicates that “Funds paid directly to institutions by the Department through the HEERF will not be included as revenue for 90/10 purposes.”  Once again, the Department has chosen to interpret the law selectively in a manner that harms vulnerable students and supports for-profit institutions.

Like the Department’s initial guidance documents, the CARES Act imposes no restrictions on student eligibility for emergency aid and makes no reference to the eligibility requirements associated with Title IV of the HEA. When we drafted emergency legislation in response to the COVID-19 pandemic, Congress did not place limitations on which students could or should get emergency aid—we simply directed the Secretary and institutions to make funds available to students. The extreme eligibility restrictions, which were added by the Department without any directive from Congress and without any statutory basis, represent an unconscionable response to the virus that does not discriminate against which students are impacted by it.

Additionally, the Department’s prohibition on allowing students to directly apply emergency financial aid to relevant institutional charges may disproportionately impact vulnerable students. The CARES Act clearly makes funding available to satisfy the cost of attendance, which includes tuition, fees, and institutionally-provided food, and housing. Many students rely on their institutions to meet basic needs. For example, a number of campuses that have restricted campus operations during COVID-19 still operate limited food and housing facilities for students—such as homeless students, former foster youth, and others with no “home” to return to. While we appreciate that the Department has appropriately prohibited institutions from using emergency financial aid dollars to reimburse themselves for operational expenses (in accordance with Section 18004(c) of the CARES Act), there is no reason to create obstacles for students who may not have access to a bank account and who may want to proactively elect to apply emergency grant aid to cover the cost of institutionally-provided services. The Department should allow and encourage institutions to disburse emergency financial aid as quickly, equitably, and seamlessly as possible. It is unreasonable that a student could not satisfy new institutional charges incurred after March 27, 2020, if they provide authorization to the institution to apply their emergency aid funds to such amounts.

Finally, the Department declared that “students who were enrolled exclusively in an online program on March 13, 2020… are not eligible for emergency financial aid grants.” The CARES Act does not state that individual students who were enrolled exclusively online could not receive emergency financial aid. Such decisions were intentionally left up to each institution so that campuses could make decisions that fit the unique needs of each student. The Department was again inconsistent with its guidance, as it afforded institutions discretion in the case of incarcerated students (as Congress intended) yet not with students enrolled exclusively online. Instead, the Department’s decision to prohibit support for fully-online students, and restrict the flexibility afforded by the CARES Act, will add additional burden to students and institutions.

We are deeply disappointed with your unauthorized decision to restrict eligibility for emergency financial aid to students during this difficult time for our country and in violation of Congressional intent. Accordingly, we urge you to reverse your decision to limit students’ access to emergency financial aid and block students from using funds for institutional charges. During this national emergency, it is essential to provide resources that meet the diverse needs of all our students and institutions of higher education. Thank you for your attention to this urgent matter.

Sincerely,

SENATOR PATTY MURRAY

Ranking Member, Subcommittee on Labor, Health and Human Services, Education, and Related Agencies, Committee on Appropriations, U.S. Senate

Ranking Member, Committee on Health, Education, Labor, & Pensions, U.S. Senate

CONGRESSWOMAN ROSA L. DELAURO

Chair, Subcommittee on Labor, Health and Human Services, Education, and Related Agencies, Committee on Appropriations, U.S. House of Representatives

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