Department of Education issues important COVID-19 guidance for postsecondary institutions

April 07, 2020

Higher Education Alert

Author(s): Michael J. Cooney, Steven M. Richard

DOE issues updated guidance to afford flexibilities under the emergency circumstances caused by the coronavirus (COVID-19) pandemic.

The Office of Postsecondary Education on April 3rd posted updated guidance for interruptions of study related to coronavirus (COVID-19). The guidance expands upon the Department’s March 5 guidance in light of the declaration of the COVID-19 national emergency on March 13. Further, the Department expects to provide additional guidance with respect to the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Pub. L. No. 116-136 (including in particular Return of Title IV Funds and Reporting Requirements at 34 C.F.R. § 668.22).

A copy of the guidance may be viewed here, and we also encourage institutions to review the Department’s COVID-19 webpage for the most current information under the unprecedented and evolving circumstances. The guidance’s emergency measures remain effective until June 30, 2020. As a general matter, the Department recommends that institutions document in their records, as contemporaneously as possible, any actions taken as a result of COVID-19, including all actions taken in response to the guidance.

The March 5 guidance (termed “flexibilities” by the Department) has been extended to any payment period or term beginning between March 5 and June 1, 2020.

The new guidance in a number of cases allows institutions to modify existing programs to respond to COVID-19. These include such matters as offering courses on non-standard terms and broadening leaves of absence, though recognizing that the Department lacks the statutory authority to waive the requirement that institutions award or disburse Title IV funds based on a student’s actual enrollment status.

Many institutions switched to distance learning modalities as a result of the pandemic, with resort to the standard Department approval process. But the government is willing to extend that flexibility only until June 1, after which approval under the Department’s and its accrediting agency’s applicable policies and procedures will be required. Accrediting agencies, in particular, are challenged to develop new policies and procedures for providing rapid approval of distance education programs, including engaging in virtual site visits of institutions or programs under review. The guidance notes that while the law may not impose certain restrictions on distance learning, accreditors may impose additional standards or indeed waive those standards for schools to accommodate COVID-19 closures. These developments likely point to a major shift in the treatment of distance learning, which industry analysts believe will have a new and irreversible impact on higher education.

For example, the guidance directs institutions to review resources with respect to the application of the Family Educational Rights and Privacy Act (FERPA), Section 504 of the Rehabilitation Act of 1973 (Section 504)—and, for public institutions, Title II of the Americans with Disabilities Act—on virtual learning.

Continued financial support under Title IV is a central concern for many institutions. The guidance addresses a range of issues, including approval of reduced academic years, the extended due date for submission of the single audit to the Federal Audit Clearinghouse, and compliance with the cash management regulations.

Regarding campus security reporting and equity in athletics disclosures, the Department indicates that it will provide appropriate guidance as it continues to monitor the COVID-19 national emergency.

The guidance addresses the requirements of the Clery Act and its implementing regulations to notify the campus community upon the confirmation of a significant emergency or dangerous situation involving an immediate threat to the health or safety of students or staff occurring on campus. The Department does not interpret Clery’s statutory language as requiring institutions to give regular, on-going updates on COVID-19 or to proactively identify positive COVID-19 cases within the campus community. Also, the Department does not interpret Clery to require updates regarding positive COVID-19 cases among individuals who are not attending classes, working, or residing on campus or to require notifications to such individuals. With essential employees and some students still on campuses, institutions must remain aware of their emergency notification obligations. An institution may satisfy the emergency notification requirements as follows: (i) provide students and employees a single notification through regular means of communications for its emergency notifications informing them about COVID-19 and necessary health and safety precautions, as well as encouraging them to obtain information from health care providers, state health authorities, and the Centers for Disease Control and Prevention’s COVID-19 website, or (ii) create a banner at the top of the institution’s homepage with this information, including a statement about the global pandemic and a link to the CDC’s website. Further, although not mentioned in the guidance, Clery’s implementing regulations enable an institution to provide “adequate follow-up information to the community as needed.” As always, when addressing Clery concerns, institutions should be guided by the principle of making the right notification decisions for its community.

In summary, the guidance’s focus on the immediate need to remediate educational, financial, and reporting relationships as a result of COVID-19 portends of future challenges, which have the potential to modify fundamentally many long-standing relationships in higher education. We encourage institutions to review this important guidance carefully and adopt as appropriate its allowances.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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