Must a Student Be Title IV-Eligible To Receive a Higher Education Emergency Relief Fund (HEERF I or HEERF II) Grant?

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This AskRegs Knowledgebase Q&A was updated on March 1, 2021 to include guidance NASFAA has received from the U.S. Department of Education (ED) about awarding leftover Higher Education Emergency Relief Fund (HEERF I) student grants under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) and HEERF II funds under the 2021 Coronavirus Response and Relief Supplemental Appropriations Act (CRRSAA, Section 314 of the Consolidated Appropriations Act, 2021) to students who are not enrolled in Title IV-eligible programs.

HEERF II Student Grants Under the CRRSAA
Unlike HEERF I, enrolled students do not have to be Title IV-eligible students to receive HEERF II funds. That is, the June 17, 2020 Interim Final Rule and Title IV general student eligibility criteria under Section 484 in Title IV of the Higher Education Act of 1965, as amended (HEA) [20 USC 1091(a)] do not apply when awarding HEERF II funds.

The U.S. Department of Education (ED) has confirmed that the Interim Final Rule does not apply to HEERF II funds; however, a Trump administration official with ED has stated verbally that ED believes undocumented, Deferred Action for Childhood Arrivals (DACA), and international students are not eligible for HEERF II funds under 8 USC 1611(a) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, which prohibits certain noncitizens from receiving federal public benefits. The Certification and Agreement for HEERF II student grants states the school “must comply with the provisions of all applicable acts, regulations, and assurances…." It is important to note that ED has not issued written guidance to clarify whether or not this means undocumented, DACA, or international students may receive HEERF II funds, nor have any Biden administration officials announced a change in policy position. If NASFAA receives more definitive guidance, especially in light of the Biden administration transition, we will post it in Today’s News, in our COVID-19 Web Center, and in the AskRegs Knowledgebase.

In the meantime, if and how a school determines the citizenship of a student when awarding HEERF II student grant funds is at the discretion of the school. Potential institutional considerations may range from: 1) the school feels that it needs to confirm the citizenship of each recipient; to 2) the school assumes that students are citizens unless the school knows differently; to 3) the school asks students to self-certify their citizenship status. There isn't clear guidance from ED on this point, so your school's policy should be based on the school’s own risk assessment after consulting with its legal counsel. 

Title IV-Eligible Program Update: According to guidance NASFAA has received from ED, schools can award HEERF II funds (and HEERF I funds remaining unspent as of December 27, 2020) to students who are not enrolled in Title IV-eligible programs. This includes nondegree, noncredit, and continuing education students, as well as students who are simultaneously enrolled in high school and college.

See also AskRegs Q&A, What Factors Do We Consider When Awarding HEERF II Student Grants Under the CRRSAA? 

HEERF I Student Grants Under the CARES Act
Effective with publication of the June 17, 2020 Interim Final Rule, only students who are or could be eligible to participate in the Title IV programs under Section 484 in HEA, may receive HEERF I student grants. To be a Title IV-eligible student under Section 484 of the HEA, the student must:

Requirement: The Interim Final Rule also implemented a new requirement that students who receive HEERF I grants must be enrolled in a Title IV-eligible program--a requirement that is not part of Section 484.

Prohibitions: The Interim Final Rule explicitly prohibits undocumented, Deferred Action for Childhood Arrivals (DACA), and international students from receiving HEERF I grants because, according to ED, 8 USC 1611(a) of the Personal Responsibility and Work Opportunity Reconciliation Act (1996 welfare reform law) prohibits these students from receiving federal public benefits.

Considerations for Confirming Title IV Eligibility: While the Interim Final Rule and ED's guidance do not require a FAFSA to demonstrate Title IV eligibility, having a FAFSA on file would be the most practicable way for an institution to determine that a student is eligible to participate in the Title IV federal student aid programs and meets all general student eligibility criteria in Section 484 of the HEA. The Interim Final Rule is unclear on whether a prior-year FAFSA is acceptable; therefore, accepting one is at the school's discretion. Just remember that a prior year’s FAFSA will not have updated default and overpayment information, Statement of Educational Purpose, etc.

Without having a FAFSA on file, the school would need to confirm by some other method that a student meets all of the Title IV eligibility criteria. Under the Interim Final Rule, a student who chooses not to fill out a FAFSA but who otherwise meets the Title IV eligibility criteria, may self-certify his, her, or their eligibility by completing an application designed by the institution in which the student attests under the penalty of perjury to meeting the requirements of Section 484 of the HEA. It is entirely up to the school to decide whether it implements such a self-certification and whether it wants to assume any potential liability for conflicting information that might arise if a FAFSA is later submitted.

We cannot answer whether verification would be required, but it is our understanding that verification would not be required because: 1) HEERF grants are not need-based funds under the CARES Act; and 2) verification is not a general student eligibility requirement under Section 484 of the HEA. However, the V4 and V5 Verification Tracking Groups include resubmission of the Statement of Educational Purpose, which is in Section 484.

Beyond the Above Considerations: The school retains discretion over awarding HEERF I student grants and needs to make its own decisions on how it determined which students did or will receive the grants, as well as how much funding they did or will receive. See AskRegs Q&A, What Factors Do We Consider When Awarding HEERF I Student Grants Under the CARES Act?

Historical Background: The Title IV-eligibility requirement is not new on June 17, 2020. It first appeared in ED's April 21, 2020 Frequently Asked Questions about the Emergency Financial Aid Grants to Students under Section 18004 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Later in a statement on May 21, 2020, ED indicated that it would not enforce the Title IV eligibility guidance in the Frequently Asked Questions because it lacked "the force and effect of law." That has changed now that the Interim Final Rule has been published; it is now enforceable by law effective on June 17, 2020.

Don't panic! In footnote #6 on page 36498 of the June 17, 2020 Interim Final Rule indicates that ED will not "enforce the title IV eligibility interpretation announced in this rule against distribution of HEERF funds that occurred prior to the publication of this rule." This means schools are not required to revisit, adjust, or cancel any awards that do not comply with the Title IV eligibility requirement or the Title IV-eligible program requirement prior to June 17, 2020.

Exceptions for Lawsuits Filed by States and Other Entities: Some states (e.g., Washington state) and state systems (e.g., California's community college system) have filed lawsuits related to the Title IV-eligibility requirement, particularly as it relates to undocumented and Deferred Action for Childhood Arrivals (DACA) students. In addition to the guidance provided above, you will need to monitor your own state's actions related to HEERF implementation. See NASFAA's Today's News article, CARES Act Interim Final Rule and the Courts: Where Do We Stand?

Update Notes:

AskRegs Q&As represent NASFAA's understanding of regulatory and compliance issues. They are FOR INTERNAL USE ONLY. While NASFAA believes AskRegs Q&As are accurate and factual, they have not been reviewed or approved by the U.S. Department of Education (ED). If you should need written confirmation of AskRegs information for audit or program review purposes, please contact your ED School Participation Division. NASFAA shall not be liable for technical or editorial errors or omissions contained herein; nor for incidental or consequential damages resulting from the furnishing, performance, or use of this material.