ED Simultaneously Backs Away From And Embraces Its Own HEERF Guidance

Last week, the Department of Education announced it will not enforce its April guidance on the Higher Education Emergency Relief Fund, further muddling the quick rollout of student and institutional funding under the CARES Act.

While this announcement has introduced considerable confusion into how institutions should treat ED's guidance on HEERF, it is not a new concept: subregulatory guidance, such as the policy statements outlined in the CARES Act guidance from ED, can only clarify existing obligations and does not create standalone legal obligations. In 2019, the administration issued an Executive Order clarifying its position, among other things, that agency-issued guidance is nonbinding. But ED likely has primary enforcement authority over the HEERF provisions of the CARES Act, and its latest announcement may signal how ED or others will evaluate CARES Act compliance down the road.