United States: The Nuts And Bolts Of HEA Reauthorization

As most in higher education are aware, Congress presently is working to reauthorize the Higher Education Act of 1965, as amended ( 20 U.S.C. 1001 et seq.), the seminal legislation that created and governs the administration of the federal student financial aid programs. Throughout the reauthorization period, various legislators will propose bills to establish, terminate, or amend the student aid programs. The education committees in the House and Senate will hold hearings and commission reports, both to gather information and to highlight concerns. White papers will be issued by congressional offices, executive agencies, and think tanks, and trade associations and industry participants will attempt to bend the ear of legislators on policy issues.

As you would expect, in all the commentary and analysis relating to the machinations described above, references to "reauthorization" will abound. It is, after all, the context in which all the noted activity occurs. And yet it is rare that the nuts and bolts of the process, or even its basic purpose, will be discussed. What, for example, is actually being reauthorized? How is reauthorization ultimately accomplished? And why is reauthorization necessary? Here we hope to answer such questions, and in doing so, to provide some useful insight into this fundamental process.

Reauthorization mechanics

As noted above, the HEA was first enacted in 1965. Since then, it has been "reauthorized" on eight separate occasions.

But what, exactly, does it mean to "reauthorize" the HEA? Generally speaking, authorization language creates, extends, or makes changes to a federal program, and specifies the amount of money that the government may spend to carry out the program. Sometimes Congress authorizes a specific amount for a program, and in others, it leaves the amount open ended.

As most are aware, the HEA is a collection of loan and grant programs. But not everyone realizes that each program has its own authorizing language. In January 2014, the Congressional Research Service published "The Higher Education Act (HEA): A Primer" (the "HEA Primer"), and included a table detailing each section of the HEA that authorizes the spending of funds on a particular program. According to the table, there are 110 distinct provisions authorizing programs.

Thus, when the HEA is reauthorized, Congress is actually updating the authorizing language for each separate assistance program contemplated in the act. Subsequent to the most recent reauthorization, which was accomplished through the passage of the Higher Education Opportunity Act of 2008 (HEOA), it was not uncommon to read that the HEA had been "reauthorized" through FY2014. Though referring to the reauthorization of the HEA as a whole is useful shorthand for a reporter, from a regulatory standpoint, it is not accurate. There is not one single section reauthorizing the entire HEA, but instead scores of sections "reauthorizing" the government to spend funds on individual programs and initiatives.

It also is important to appreciate that for each program, the approach to reauthorization can be different. In most cases, the HEOA reauthorized appropriations for programs through FY2014, but this was not the case with regard to every program. Authorization of appropriations for the Teacher Quality Partnership Grants, for example, expired in FY2011 (HEA Sec. 209), while certain funding for HBCU's was authorized through FY2019 (HEA Sec. 371(b)).

Whether funds are authorized, or authorized and appropriated, also differs from program to program. In the former case, known as "discretionary spending," the legislation authorizes an appropriation, but does not go the next step of appropriating funds. In the latter case, often referred to as "mandatory spending," the authorization bill both authorizes and appropriates the funding for the program, meaning Congress both authorizes the spending and allocates the funds to be spent. Occasionally, the HEA actually contains both discretionary and mandatory spending clauses for a single program. For example, HEA Sec. 528(a) authorizes through FY2014 the spending of funds for programs promoting post-baccalaureate opportunities for Hispanic Americans, while HEA Sec. 898 authorizes and appropriates additional funds for the same program. 

Given the complexity and diversity of reauthorization, one can see why a political commentator would elect to characterize reauthorization as a single legislative action, instead of as a collection of diverse, individual considerations. Breaking down the particular reauthorization or appropriation timeline for each specific program is a time-consuming and technical chore. But it is important to understand that this shorthand is indeed a convenience, and does not accurately reflect the reauthorization process. During this reauthorization cycle, for example, there have been some in Congress who have suggested that it would be more efficient to carry out the current reauthorization via a series of bills, instead of through a comprehensive reauthorization bill. These individuals thus are suggesting that Congress manage a subset of the many required program authorizations in each bill, instead of addressing them all at once. Understanding that reauthorization is in fact a collection of individual actions, each on a separate program, provides the context necessary to make sense of this approach, and to appreciate why it is a viable option.

The failure to reauthorize

Speaking of the present reauthorization cycle, one might ask how the HEA programs are still in operation if most programs' authorization window ended in FY2014? These programs were extended through FY2015 courtesy of the General Education Provisions Act (GEPA). Section 422 of GEPA ( 20 U.S.C. 1226a) provides that if Congress does not pass legislation extending a program in the regular session that ends prior to the beginning of the terminal fiscal year of authorization of appropriations of an applicable program, the program is automatically extended for one additional fiscal year. Thus, all those programs for which the current authorization ended in FY2014 (the vast majority) were automatically extended for an additional year, through FY2015.

But what happened at the end of FY2015, since Congress did not reauthorize all the HEA programs by the end of the fiscal year?

Historically, the understanding has been that if Congress failed to reauthorize HEA programs prior to the expiration of their current authorization period, there would no longer be any authorization to appropriate funds for their execution (though they would still be on the books, so to speak). In theory, Congress could act to appropriate funds for such programs, despite the fact that appropriations were no longer authorized. In the HEA Primer, the Congressional Research Service observes that so long as a program continues to receive appropriations, it is considered to be implicitly authorized, even absent explicit authorization language. But this approach is disfavored. Indeed, both House and Senate rules specify that legislators may object to appropriations for programs not previously authorized (See House Rules XXI, XXII; Senate Rule XVI).

Accordingly, in order to avoid this scenario, Congress in prior years has acted to extend the HEA until the individual programs could be properly authorized for a new period. As we discussed above, formal reauthorization legislation addresses the reauthorization of each individual program in the HEA. Temporary legislation to extend the HEA, in contrast, typically is brief, provides a blanket extension of all programs, and authorizes appropriations to match prior year levels. Examples of this approach include the  Higher Education Extension Act of 2004 (PL 108-366) and the  Higher Education Extension Act of 2005 (PL 109-81).

In a fascinating twist (at least for the wonks among us), Congress broke from precedent in 2015 and determined not to pass a temporary extension bill, apparently on  advice from counsel for the U.S. Department of Education. Consequently, the vast majority of the programs detailed in the HEA are no longer explicitly authorized, but instead currently rely on the implicit authorization that is presumed so long as they continue to receive appropriations. Though this approach would appear to expose future appropriations to the rule-based objections noted above, both the Department and Congress seem to view this risk as acceptable.

On a final note, some readers may recall that two HEA programs did, in fact, expire at the end of FY2015 when they were not reauthorized: (1) the Perkins Loan Program, and (2) the Advisory Committee on Student Financial Assistance. Why would these programs "expire" when the majority of the HEA programs continue to be implicitly authorized? As we discussed above, the approach to authorization and appropriation differs for each program in the HEA. In the case of the Perkins Loan Program, Congress had not made any appropriations for a period of several years. Consequently, once the program's authorization expired, it would be without authorization or appropriation, with the result that the program would not even be implicitly authorized. The language authorizing the Advisory Committee on Student Financial Assistance, in contrast, actually contained sunset language, specifying that the Committee was only authorized to exist through October 1, 2015 (see  20 USC 1098(k)). And the automatic one-year extension under GEPA Section 422 does not apply to the authorization of committees that are required by statute to terminate on a specific date. Congress  ultimately acted to extend the Perkins Loan Program for an additional two years, but no extension for the Advisory Committee on Student Financial Assistance was passed. As a result, the latter, at least for now, is truly expired.

An earlier version of this article appeared in the October 2015 issue of Career Education Review.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Thompson Coburn LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Thompson Coburn LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions