One of the shortest of the recent Reauthorization provisions seems to be getting overlooked, although its effect is quite significant. Buried in the hundreds of pages of revisions made by the Higher Education Opportunity Act (HEOA) is a simple statement that the effective date of changes made to the Academic Competitiveness Grant (ACG) and SMART Grant programs by an earlier piece of legislation is amended from January 1, 2009, to July 1, 2009.
The Ensuring Continued Access to Student Loans Act (ECASLA) made a number of changes to eligibility limitations that currently exist for these programs, by:
- Expanding student eligibility to include eligible non-citizens and part-time students;
- Adding a fifth year grant level for students in a five-year program of study; and
- Broadening eligible programs of study to include certificate programs that are at least one year in length and are offered by schools that award two- or four-year degrees.
ECASLA also changed the basis of tracking progression from "academic year" (interpreted by the Department of Education as the Title IV definition of academic year, including both a credit or clock hour component and an instructional time component measured in weeks) to "year" [which NASFAA believes ED will most likely interpret as the institution’s classification of the student as first year (or freshman), second year (or sophomore), etc.].
While schools generally welcomed the expansion of student eligibility as soon as possible, the mid-year effective date for the change from "academic year" to "year" for grant level progression was viewed with horror. In forestalling that chaos, Congress also delayed implementation of the student eligibility changes. From an administrative point of view, that delay also eliminates questions about retroactivity, since ED guidance has always been that gaining eligibility as a result of citizenship changes applies to the entire award year in which it occurs.
ED has not yet issued guidance about implementing these changes. However, it does look like schools that had expanded their Spring awards to include students who would have gained eligibility under the programs as revised by ECASLA will have to rescind them.
ECASLA and then the HEOA also made changes to the way "rigorous secondary school programs" are defined and identified. The requirement to have graduated from a rigorous secondary school program applies to first and second year ACG awards. It is NASFAA’s understanding that students who graduate from high school prior to July 1, 2009, will continue to be subject to the current methods, as outlined in existing regulation.
Congress waived negotiated rulemaking for the ACG and SMART Grant program changes. Although bypassing negotiated rulemaking would enable ED to revise regulations on a faster track, the master calendar would normally require that final regulations be published by November 1 prior to the award year for which regulations become effective. Thus, final rules would normally have to be issued by November 1 of this year to be effective for the award year beginning July 1, 2009. So Congress waived that provision, too: rules that govern the ACG and SMART Grant programs beginning July 1, 2009, may be issued after November 1, 2008.
Although the Department is not bound to conduct negotiated rulemaking for the ACG and SMART Grant changes, some form of public comment may still be solicited, although that might not necessarily be through a Notice of Proposed Rulemaking. For example, ED could issue interim final regulations with comment invited; such regulations would become effective when specified but could be subject to further change if ED is convinced by public comment to revise them. NASFAA will offer any assistance ED may want in developing revisions to the current regulations and your input is welcome. (Please remember ED cannot change legislative mandates through the regulatory process.)
By Joan Berkes
Director of Legislative and Regulatory Analysis
Posted 09/18/08 to www.NASFAA.org. Redistribution to non-NASFAA institutions is prohibited. Please submit Web Site questions or comments to Web@NASFAA.org.
