FY2016 Extension of the Higher Education Act: An Overview

Contents

• Higher Education Act Authorization
• General Education Provisions Act
• Advisory Committees
• Other HEA Programs
• Authorization and Appropriations Options for Addressing the Expiring HEA Provisions
• Explicit Extension
• Continued Appropriation of Funds
• Continuing Resolutions
• FY2016 Appropriations and Extensions
• Lapse in Appropriations
• The Freely Associated States
• Higher Education Act Provisions and Authorizations

Summary

The Higher Education Act of 1965, as amended (HEA; P.L. 89-329), authorizes the operation of numerous federal aid programs that provide support both to individuals pursuing a postsecondary education and to institutions of higher education (IHEs). It also authorizes certain activities and functions. The HEA was first enacted in 1965. It has since been amended and extended numerous times, and it has been comprehensively reauthorized eight times. The most recent comprehensive reauthorization occurred in 2008 under the Higher Education Opportunity Act (HEOA; P.L. 110-315), which authorized most HEA programs through FY2014. Many of the programs with HEA authorizations set to expire at the end of FY2014 were automatically extended through FY2015 under Section 422 of the General Education Provisions Act (GEPA). Additionally, many HEA programs due to expire at the end of FY2015 were extended through FY2016 under the Consolidated Appropriations Act, 2016 (P.L. 114-113).

This report identifies provisions under the HEA that were, with GEPA extensions, set to expire at the end of FY2015. It also discusses authorization and appropriations options for extending the statutory authorities that are scheduled to lapse. These options include an explicit extension of, or an appropriation of funds for, these programs either through a regular appropriations measure or a continuing resolution. Finally, for all HEA mandatory and discretionary programs and activities, the report provides information on the authorization of appropriations or mandatory budget authority, the duration for which such authority is provided, the applicability of extensions under GEPA, and FY2016 appropriations and mandatory budget authority.

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FY2016 Extension of the Higher Education Act: An Overview

Higher Education Act Authorization

The Higher Education Act of 1965, as amended (HEA; P.L. 89-329), authorizes the operation of numerous federal aid programs that provide support both to individuals pursuing a postsecondary education and to institutions of higher education (IHEs). It also authorizes certain activities and functions. The most recent comprehensive reauthorization of the HEA was in 2008 under the Higher Education Opportunity Act (HEOA; P.L. 110-315).

As amended by the HEOA, appropriations were authorized for most HEA discretionary spending programs through FY2014. However, under generally applicable provisions in the General Education Provisions Act (GEPA), the authorization periods for most HEA programs were effectively extended through the end of FY2015. From September 30, 2015, through December 18, 2015, Congress provided additional appropriations for many of these programs with three consecutive continuing resolutions.¹ On December 18, 2015, the Consolidated Appropriations Act, 2016 was enacted (P.L. 114-113), under which Congress provided additional appropriations for many of the HEA programs through FY2016, such that they will continue operation until through September 30, 2016. Additional legislative action must occur for the provisions extended by the Consolidated Appropriations Act, 2016 to continue beyond September 30, 2016.

Not all authorizations of appropriations in the HEA were set to expire at the end of FY2014. For some HEA programs, authorization of appropriations or mandatory budget authority is permanent,² while for others authorization is provided through a date beyond the end of FY2014.³ For a number of programs, the period during which appropriations are authorized to be provided has ended.⁴ For instance, the authorizations of appropriations for Teacher Quality Partnership Grants expired at the end of FY2011. In a few other instances that are discussed below, program authority had a sunset date (e.g., the end of FY2014, the end of FY2015).

General Education Provisions Act

The General Education Provisions Act (GEPA)⁵ contains a broad array of statutory provisions that are applicable to the majority of federal education programs administered by the U.S. Department of Education (ED). GEPA Section 422 provides that, in the absence of the enactment of a law to extend or repeal a program administered by ED, the authorization of appropriations for, or the duration of, a program is extended for one additional fiscal year beyond its terminal year.⁶ The authorization of appropriations for such programs in the additional year shall be the same as that for the terminal year of the program.

Advisory Committees

Section 422 of GEPA explicitly states that the automatic one-year extension does not apply to the authorization of appropriations for commissions, councils, or committees that are required by statute to terminate on a specific date. Prior to the conclusion of FY2015, two HEA committees had specific termination dates:

• Under Section 114(f), the authority for the National Advisory Committee on Institutional Quality and Integrity (NACIQI) terminated on September 30, 2015.⁷
• Under Section 491(k), the authority for the Advisory Committee for Student Financial Assistance (ACSFA) was provided until October 1, 2015.⁸

Other HEA Programs

Congress did not extend or repeal many of the provisions authorized by the HEA through FY2014. Thus, except for the advisory committees noted above, GEPA automatically extended most of these HEA programs and authorizations of appropriations through FY2015 at the same levels as were authorized to be provided for FY2014. However, because GEPA Section 422 only provides an additional one-year extension to HEA programs and many of those programs that were set to expire at the end of FY2014 were automatically extended through FY2015 under GEPA—and subsequently through FY2016, under the Consolidated Appropriations Act, 2016—additional legislative action must occur if these expiring provisions are to continue beyond September 30, 2016.

Authorization and Appropriations Options for Addressing the Expiring HEA Provisions

Most HEA provisions that were set to expire at the end of FY2014 had been provided an additional one-year extension under GEPA. This additional one-year extension terminated at the end of FY2015. The implications of this expiration in the context of a particular program or activity depend on the nature of the provision that expired.

In general, there is a distinction between an authorization provision that establishes the authority for a program, policy, project, or activity and a provision that explicitly authorizes subsequent congressional action to provide appropriations. The Comptroller General has explained that there is no constitutional or general statutory requirement that an appropriation must be preceded by a specific act that authorized it.⁹ "Congress may ... appropriate funds for a program or object that has not been previously authorized or which exceeds the scope of a prior authorization, in which event the enacted appropriation, in effect, carries its own authorization and is available to the agency for obligation and expenditure."¹⁰ That is, in the event that an authorization of appropriations has lapsed, an appropriation would generally provide the necessary legal authorization for the agency to spend money for the particular purpose specified in the appropriations act. Furthermore, if an authorization of appropriations for an activity expires but the underlying authority for that activity does not, those statutory authorities still exist and the agency may continue to take actions pursuant to them, assuming that appropriations are available for those purposes.¹¹

Extension of the HEA authorization provisions that expired at the end of FY2014 and were extended through GEPA to the end of FY2015, the vast majority of which are discretionary authorizations of appropriations, could be addressed in a variety of ways through either the authorization or appropriations processes (or both). For instance, one or more laws could be enacted that extend the authorization of appropriations for an individual program or multiple programs. Alternatively, a program for which the authorization of appropriations has expired may continue to operate if Congress continues to appropriate funds for it. In a few other instances, however, where the authority for the program itself terminates, an explicit extension of that program would be required for it to continue to operate.

Explicit Extension

For the HEA provisions that, with the GEPA extension, expired at the end of FY2015, a law could be enacted to explicitly extend the authorization. For instance, prior to the enactment of the HEOA (P.L. 110-315) in 2008, the most recent reauthorization of the HEA, HEA programs were extended beyond their prior terminal authorization date of FY2003 through a series of Higher Education Extension Acts that temporarily extended the HEA.¹² These extension acts broadly extended the authorization of appropriations for and the duration of each program authorized under the HEA for an additional period of time beyond their prior terminal authorization dates.

Continued Appropriation of Funds

As an alternative to an explicit authorization extension, for many of the HEA provisions that expired, with the GEPA extension, at the end of FY2015, additional funds could be appropriated for periods beyond FY2015 to ensure a program's continued operation. As was previously mentioned, in general, an appropriation for the purposes of a program with an expired authorization of appropriations would ensure the continued operation of that program. For example, although the authorization of appropriations under HEA, Title II, Part A, for Teacher Quality Partnership Grants was provided only through FY2011 (and extended under GEPA through FY2012), the program remains operational due to continued funding provided in previous appropriations acts through FY2015, and now through FY2016 under the Consolidated Appropriations Act, 2016.

While it seems that most of the HEA programs that expired at the end of FY2015 could continue operations with the appropriation of funds for FY2016, it appears that an explicit extension would be required for the advisory committees mentioned above to ensure continued operation in their current form beyond the end of FY2015.¹³

Continuing Resolutions

Congress uses an annual appropriations process to fund routine activities of most federal agencies. This process anticipates regular appropriations bills to fund activities before the beginning of the fiscal year. When this process is delayed beyond the start of the fiscal year, one or more continuing appropriations acts (continuing resolutions) can be used to provide funding until action on regular appropriations is completed.¹⁴

In the event a regular appropriations bill to appropriate funding for the expiring HEA provisions is not enacted prior to their expiration date, a continuing resolution (CR) could be enacted to provide continued funding for these expiring provisions. In most cases, the appropriation of funds for a program through a CR would be sufficient for a program's continued operation.¹⁵ However, for those programs with explicit termination or sunset dates, a CR or other appropriations law would likely need to contain specific language, beyond the appropriation of funds, indicating Congress's intent to continue the operation of the program. Thus, for certain provisions, the extension of the explicit authorization for the program or activity may be required for continued operations.

FY2016 Appropriations and Extensions

Beginning on September 30, 2015, a variety of measures were taken to provide additional appropriations for federal programs beyond FY2015. First, three CRs were enacted, which, in general, provided continuing appropriations for federal programs through December 18, 2015.¹⁶ Then, on December 18, 2015 the Consolidated Appropriations Act, 2016 was enacted (P.L. 114-113), under which Congress provided additional appropriations for many of the HEA programs through FY2016. Thus, many of the HEA programs that, under GEPA provisions, were set to expire at the end of FY2015 continued to operate through December 18, 2015, under the various CRs and will continue to operate through FY2016 under the Consolidated Appropriations Act, 2016.

Congress did not, however, extend the authorization of or provide additional funding under any of the CRs or the Consolidated Appropriations Act, 2016 for the Advisory Committee for Student Financial Assistance. Because the Advisory Committee for Student Financial Assistance neither received additional funding nor an extension of authorization, it has disbanded and operations ceased immediately upon the expiration of its authorization.¹⁷

Additionally, although Congress did not provide additional funding for the Federal Perkins Loan program under the CRs or the Consolidated Appropriations Act, 2016, it did provide authorization for the continued operation, but not additional appropriations, for the program through separate legislation—the Federal Perkins Loan Program Extension Act of 2015 (P.L. 114-105). Under the act, institutions of higher education may continue to award Perkins Loans to eligible undergraduate students through September 30, 2017 and to eligible graduate and professional students through September 30, 2016. Beyond then, the act specifically prohibits additional appropriations for the program. It also specifies that the automatic one-year extension under GEPA Section 422 will not apply to further extend the program.¹⁸

Lapse in Appropriations

In the event additional funding is not provided beyond September 30, 2016 for those HEA programs that were funded through the Consolidated Appropriations Act, 2016 either through regular appropriations or another CR, a funding gap would follow. Should this occur, an agency must suspend operations of affected programs, except in certain situations when law authorizes continued activity, until further appropriations are provided.¹⁹ The programs may subsequently resume once funds for them are appropriated, unless otherwise provided.

In many past instances, a CR following a funding gap has contained authorization extensions and provided that those extensions shall be considered to have been enacted on the date that the funding gap commenced, as if no funding gap occurred. For instance, under the Continuing Appropriations Act of 2014 (P.L. 113-46), which followed the FY2013 16-day funding gap from October 1, 2013, to October 16, 2013, appropriations were provided for federal programs and the time covered by the joint resolution was "considered to have begun on October 1, 2013."²⁰ This may be especially relevant for programs with a specific termination date, such as the advisory committees discussed above. While additional action beyond providing appropriations is likely needed to continue their operation, should these programs not receive an explicit extension prior to the termination, it appears that Congress would have the ability to restore the committees through provisions in a CR as if a lapse in authorization never occurred, such that it may be unnecessary to reform the committees completely (e.g., appoint new committee members).

The Freely Associated States

In addition to the HEA, the Compact of Free Association contains several provisions that relate to the eligibility of students and IHEs of the Freely Associated States to participate in the HEA programs.²¹ In accordance with the Compact of Free Association, students and IHEs in the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau are eligible to receive appropriations for and participate in many federal student aid programs through FY2023 (e.g., Pell Grants). With respect to the Federal Supplemental Educational Opportunity Grant (FSEOG) program and the Federal Work Study (FWS) program, however, the Compact of Free Association, as amended by the Consolidated and Further Continuing Appropriations Act of 2015 (P.L. 113-235), extended eligibly for students and IHEs in Palau to receive appropriations for and participate in the programs only through the end of FY2015.²² The various CRs temporarily extended the provisions of the Compact of Free Association pertaining to students and IHEs in Palau and their eligibility to receive appropriations for and participate in the FSEOG and FWS programs, and the Consolidated Appropriations Act, 2016 further extended these provisions through FY2016. However, it appears this extension would expire September 30, 2016 without additional legislative action.²³

Higher Education Act Provisions and Authorizations

Table 1 presents information on the discretionary authorization of appropriations or mandatory budget authority for HEA programs and activities. For each program, it identifies

• the HEA section authorizing the appropriation of funds or providing mandatory budget authority;
• whether budget authority for these funds is classified as discretionary (D) or mandatory (M);
• the amount authorized to be appropriated during specified fiscal years;
• the period or duration for which the authorization of appropriations or mandatory budget authority is provided;
• whether the authorization provision is extended by GEPA; and
• for discretionary spending authorizations of appropriations, the amount appropriated for FY2016 under the Consolidated Appropriations Act, 2016;²⁴ for mandatory programs, budget authority for FY2016.²⁵

Generally, the provisions are presented in the order in which they appear in the HEA.

Author Contact Information

Footnotes

1.	P.L. 114-53 provided continued appropriations through December 11, 2015; P.L. 114-96 provided continued appropriations through December 16, 2015, and P.L. 114-100 provided for continued appropriations through December 22, 2015. The resolutions generally provided funding for applicable programs at the same rate of operations as provided in FY2015, but subject to a 0.2108% reduction.
2.	For instance, the William D. Ford Federal Direct Loan Program's authorization of appropriations makes available "such sums as may be necessary ... to make loans to all eligible students ... in attendance at participating institutions of higher education ... during the period beginning July 1, 1994"; HEA §451(a).
3.	For instance, mandatory appropriations for various HEA, Title III-A, III-B, and III-F programs (minority-serving institutions programs) are authorized through FY2019.
4.	See HEA §209.
5.	20 U.S.C. §§1221, et seq.
6.	For more information on GEPA, see CRS Report R41119, General Education Provisions Act (GEPA): Overview and Issues, by [author name scrubbed] and [author name scrubbed].
7.	Both of these committees originally were to terminate at the end of FY2014. However, on September 26, 2014, under P.L. 113-174, Congress reauthorized both committees for an additional fiscal year.
8.	Additionally, unless excepted, federal advisory committees are subject to provisions of the Federal Advisory Committee Act (FACA; P.L. 92-463). Section 14(a)(2) provides that each advisory committee "shall terminate not later than the expiration of the two-year period beginning on the date of its establishment unless ... (B) in the case of an advisory committee established by an Act of Congress, its duration is otherwise provided for by law." The HEA specifically states that FACA Section 14 does not apply to NACIQI (HEA §114(d)(4)), while for the ACSFA it states that "notwithstanding the sunset and charter provisions of the [FACA] ... [ACSFA] shall be authorized until October 1, 2015"; HEA §491(k). Thus, for both NACIQI and the ACSFA, it appears that FACA Section 14 does not apply and, therefore, that without additional congressional action both committees would terminate on the dates provided for in law. In fact, under the Consolidated Appropriations Act, 2016 Congress extended NACIQI's authorization through September 30, 2016; Congress did not extend ACSFA's authorization.
9.	Government Accountability Office, Office of the General Counsel, Principles of Federal Appropriations Law, volume I, at 2-41 (3d ed. 2004) (hereinafter, "GAO Red Book").
10.	GAO Red Book, at 1-21, 1-39.
11.	For further information, see CRS Report R42098, Authorization of Appropriations: Procedural and Legal Issues, by [author name scrubbed] and [author name scrubbed].
12.	The original termination date for most of the HEA provisions was September 30, 2003. The termination date was extended through FY2004 by GEPA Section 422. Subsequently, 14 laws that temporarily extended the HEA were enacted: P.L. 108-366, P.L. 109-81, P.L. 109-150, P.L. 109-212, P.L. 109-238, P.L. 109-292, P.L. 110-44, P.L. 110-51, P.L. 110-109, P.L. 110-198, P.L. 110-230, P.L. 110-238, P.L. 110-256, and P.L. 110-300.
13.	As described previously, both NACIQI and the ACSFA are advisory committees with specified termination dates to which the GEPA Section 422 automatic one-year extension does not apply. Both of these committees had been set to terminate at the end of FY2014; however, on September 26, 2014, under P.L. 113-174, Congress reauthorized both committees for an additional fiscal year. NACIQI does not have an explicit authorization of appropriations. For the ACSFA, under HEA Section 491(i), from funds appropriated for the salaries and expenses of ED, no less than $800,000 shall be available to the ACSFA for its operations. While this provision provides an authorization of funds for the ACSFA, FACA Section 14(a)(2)(B) provides that each advisory committee established by an act of Congress remains in effect until the duration provided for by law. Thus, it appears that under this FACA language, coupled with the ACSFA's termination date provided in the HEA, the ACSFA would require an explicit extension from Congress to remain in operation and the funds that are generally appropriated for ED's salaries and expenses would be insufficient to sustain the committee.
14.	For additional information on continuing resolutions, see CRS Report R42647, Continuing Resolutions: Overview of Components and Recent Practices, by [author name scrubbed] and [author name scrubbed].
15.	It is unclear whether a CR or other appropriations law would reset the automatic one-year GEPA Section 422 extension such that, in the absence of legislation to extend or repeal a program, the authorization of appropriations for, or the duration of, a program would be extended for one additional fiscal year beyond the terminal fiscal year of the new appropriations.
16.	P.L. 114-53 provided continued appropriations through December 11, 2015. P.L. 114-96 provided continued appropriations through December 16, 2015, and P.L. 114-100 provided for continued appropriations through December 22, 2015. The resolutions generally provided funding for applicable programs at the same rate of operations as provided in FY2015, but subject to a 0.2108% reduction. For additional information, see CRS Report R44214, Overview of the FY2016 Continuing Resolution (H.R. 719), by [author name scrubbed].
17.	For more information about how this is unfolding, see Kelly Field, "Group That Shaped Federal Student Aid Policy is Disbanded," The Chronicle of Higher Education, October 1, 2015.
18.	For additional information, see CRS Report R44343, The Federal Perkins Loan Program Extension Act of 2015: In Brief, by [author name scrubbed].
19.	A full discussion of a lapse in appropriations and potential shutdown of the federal government are beyond the scope of this report. For additional information, see CRS Report RS20348, Federal Funding Gaps: A Brief Overview, by [author name scrubbed].
20.	P.L. 113-46, §118.
21.	48 U.S.C. §§1921, et seq.
22.	48 U.S.C. §1921d(f)(1)(B)(ix), in accordance with Division G, Title III, §306 of the Consolidated and Further Continuing Appropriations Act of 2015 (P.L. 113-235).
23.	Originally, the eligibility to participate in the FSEOG and FWS programs for students and IHEs in Palau was authorized through FY2009. This date has been amended on numerous occasions since then, each time through appropriations legislation. See, for example, Division G, Title III, §306 of the Consolidated and Further Continuing Appropriations Act of 2015 (P.L. 113-235).
24.	For information on recent amounts appropriated for individual HEA programs, see CRS Report R43351, The Higher Education Act (HEA): A Primer, by [author name scrubbed].
25.	Where applicable, mandatory budget authority reflect the 7.3% sequester that went into effect October 1, 2014, pursuant to the Budget Control Act of 2011 (P.L. 112-25). For additional information on sequestration, see CRS Report R42972, Sequestration as a Budget Enforcement Process: Frequently Asked Questions, by [author name scrubbed].