Judges: RICHARD P. IEYOUB
Filed Date: 9/16/2002
Status: Precedential
Modified Date: 7/5/2016
Dear Representative Crane and Senator Dardenne:
I am in receipt of your request for an Attorney General Opinion wherein you ask a series of questions regarding the Louisiana Tuition Opportunity Program for Students (hereinafter referred to as TOPS). This opinion will begin with a discussion of the effect of statutes and administrative rules and the fundamentals of the application and eligibility requirements for federal student grant and loan programs before addressing your questions.
TOPS is created in LSA-R.S.
Administrative rules are intended to further the legislative will set forth in a statute. The legislature "declare[s] its will and, after fixing a primary standard, devolve[s] upon administrative officers the power to `fill up the details' by prescribing administrative rules and regulations." State v. Union Tank Car Co.,
The LAC rules governing TOPS adopt the application process for federal student grants and loans as the application process for TOPS. The TOPS application requirements depend upon a student's eligibility for federal student grants. As a result, it is important to understand the different types of federal student financial assistance, the federal application process and the eligibility requirements for federal grants. Federal Student Assistance programs are governed by the United States Code, Title 20, Chapter 28, Subchapter IV, entitled "Student Assistance." The Parts of Subchapter IV distinguish between student grants and student loans. Within Subchapter IV, Federal Grant Programs are contained in Part A entitled "Grants to Students in Attendance At Institutions of Higher Education." Part A includes grants based on financial need, scholarships and programs providing different types of assistance to students. Grants include Federal Pell Grants and Federal Supplemental Educational Opportunity Grants. Student loan programs are governed by parts B, C and D as follows: Part B Federal Family Education Loan Program; Part C William D. Ford Federal Direct Loan Program; and Part D Federal Perkins Loans.
General eligibility requirements for federal student grants and loans are found in
Once the FAFSA has been processed, a Student Aid Report (SAR), which indicates the EFC, is sent to the student applying and to the colleges or other entities listed on the student's application. Based on this information, those colleges send the student a financial aid award letter detailing their federal financial aid eligibility and EFC. In determining eligibility for federal grants, if a student's EFC is below a certain amount, he will be eligible for the grant, assuming he meets all other eligibility requirements. Federal Pell Grants are available to all eligible students attending institutions that are eligible to receive federal grant and loan funding.
Pursuant to LSA-R.S.
This opinion will answer your questions independently, addressing the requirements set forth in LSA-R.S.
Does LSA-R.S.
17:3048.1 require all students to complete a Free Application for Federal Student Aid (FAFSA) before receiving a TOPS award?
LSA-R.S.
Please note that LSA-R.S.
The second category of students created in LSA-R.S.
2. Do the Louisiana Administrative Code rules governing TOPS require all students to complete a Free Application for Federal Student Aid (FAFSA) before receiving a TOPS award?
The answer to this question will be restricted to the application requirements of all new applicants for TOPS awards, since the requirements of upperclassmen will be addressed in questions five and six. LASFAC has adopted rules governing the application process for all new TOPS Opportunity, Performance and Honors award applicants, including those students who do and those who do not qualify for a federal grant. LAC 28:IV § 703 sets forth the criteria necessary to establish eligibility for a TOPS Opportunity, Performance or Honors award. LAC 28:IV § 703.A.3 provides that a student must "submit the completed Free Application for Federal Student Aid (FAFSA) in accordance with § 501" to establish eligibility for a TOPS award. LAC 28:IV § 501.A states:
A. Initial Application
All new applicants for Louisiana scholarship and grant programs must apply for federal aid by completing the Free Application for Federal Student Aid (FAFSA) for the academic year following the year the student graduated from high school.
1. All applicants (except those students who can demonstrate that they do not qualify for federal grant aid because of their family's financial condition) must complete all applicable sections of the initial FAFSA.
2. Students who can demonstrate that they do not qualify for federal grant aid because of their family's financial condition must complete all applicable sections of the initial FAFSA except those sections related to the income and assets of the applicant and the applicant's parents.
LAC 28:IV § 703.A.3 and LAC 28:IV § 501.A adopt the FAFSA as the application for new TOPS Opportunity, Performance and Honors applicants. LAC 28:IV § 501.A requires that all new applicants apply for federal aid by completing the FAFSA. Sections 501.A.1 and 501.A.2 distinguish between what sections of the FAFSA must be completed by those students who qualify for federal grant aid and those who can demonstrate that they do not qualify for federal grant aid. No method is adopted to demonstrate that one does not qualify for federal grant aid. Although the sections of the FAFSA that must be completed differ, as § 501.A indicates, all applicants must apply for federal aid, which requires the submission of a FAFSA to a federal processor. In answer to your second question, LAC 28:IV § 703.A.3 and LAC 28:IV § 501.A require all new applicants for TOPS Opportunity, Performance and Honors awards to complete at least some portion of the FAFSA and submit it to a federal processor to apply for a TOPS award, which is necessary to receive an award. By having to submit a FAFSA to a federal processor, all TOPS Opportunity, Performance and Honors applicants, including those who can demonstrate that they do not qualify for federal grant aid, are being required to apply for federal aid.
The application requirements for students applying for TOPS TECH awards differ from TOPS Opportunity, Performance and Honors award applicants. Pursuant to LAC 28:IV § 803.A.3, to establish eligibility for the TOPS TECH award, a student must "submit the completed initial Free Application for Federal Student Aid (FAFSA) or renewal FAFSA by the applicable state aid deadline in accordance with the requirements of section 503." LAC 28:IV § 503 sets forth the application deadlines. LAC 28:IV § 803.A.3 adopts the FAFSA as the application for a TOPS TECH award. It does not require that a FAFSA be submitted in accordance with § 501, which, as discussed, allows certain students to submit a FAFSA without completing the income and assets sections. This indicates that all students applying for a TOPS TECH award must submit a FAFSA with all sections completed. By having to submit a FAFSA to a federal processor, all TOPS TECH applicants, including those who can demonstrate that they do not qualify for federal grant aid, are being required to apply for federal aid.
As previously noted, rules are adopted by administrative agencies to further the legislative will set forth in statutes. In a statutory scheme that provides for an administrative agency to adopt rules governing a program, statutes provide standards for the guidance of the agency promulgating the rules. In order to be valid, an action taken by an administrative agency must fall within its legislative grant of authority." Realty Mart, Inc. v. Louisiana Board of Tax Appeals,
As explained by the Louisiana Supreme Court in Benson GoldChevrolet, Inc. v. Louisiana Motor Vehicle Commission,
Although LASFAC, as the administering agency, has the authority to adopt rules for all matters necessary for the implementation of the TOPS program, including applications, such rules must be consistent with any requirements set forth in LSA-R.S.
3. Is there an alternative method of applying for a TOPS award other than the submission of a FAFSA?
LSA-R.S.
4. If there is no alternative application method, does LASFAC, as the administering agency pursuant to LSA-R.S.
17:3048.1 (C), have the authority to establish rules which govern the implementation of the TOPS program and thereby implement an alternative application pursuant to17:3048.1 (C)(2)(b)?
LASFAC, as the administering agency, has the authority to "provide by rule adopted as provided by the Administrative Procedure Act for all matters necessary to the implementation of this Section." LSA-R.S.
(2) Except as otherwise provided by this Paragraph, the administering agency by rule shall provide for:
* * *
(b) Applications, forms, financial audit procedures, eligibility and other program audit procedures, and other matters related to efficient operation, including timelines and deadlines for receipt by the administering agency of any information required to implement the provisions of this Chapter. The administering agency may provide an alternative application for students who can demonstrate they do not qualify for federal grant aid.
Under this provision, LASFAC has the authority, by rule, to adopt the application process to be used for TOPS awards, as long as the rule is adopted in compliance with the Administrative Procedure Act and is not in violation of a constitutional provision or does not exceed the statutory authority of the agency. The federal grant application requirement and exemption in LSA-R.S.
5. Does LSA-R.S.
17:3048.1 require continuing TOPS students to reapply for the award as sophomores, juniors and seniors?
LSA-R.S.
6. Do the Louisiana Administrative Code rules governing TOPS require continuing TOPS students to reapply for the award as sophomores, juniors and seniors?
LAC 28:IV § 705 establishes the specific criteria that must be met by a TOPS award recipient to continue receiving an award as a sophomore, junior and senior. Included in the criteria is § 705.A.2, which provides that a recipient must "submit a renewal FAFSA in accordance with § 501.B." Section 501.B entitled "Renewal Application" states:
1. In order to remain eligible for TOPS awards, a student must file a renewal FAFSA by the deadline set in § 503 (unless the student can demonstrate that he does not qualify for federal grant aid because of his family's financial condition).2. Students who can demonstrate that they do not qualify for federal grant aid because of their family's financial condition are not required to submit a renewal FAFSA.
3. In the event of a budgetary shortfall, applicants who do not file a FAFSA or who do not complete all sections of the FAFSA will be the first denied a TOPS award.
LAC 28:IV § 501.B establishes different renewal application requirements for those students who qualify for federal grant aid and those students who can demonstrate that they do not qualify for federal grant aid. LAC 28:IV § 501.B.1 requires that sophomores, juniors and seniors who qualify for federal grant aid file a renewal FAFSA and, as a result, apply for a federal grant. LAC 28:IV § 501.B.2 indicates that sophomores, juniors and seniors who can demonstrate that they do not qualify for federal grant aid are not required to submit a renewal FAFSA and, as a result, are not applying for a federal grant. LAC 28:IV § 501.B.3 further supports the establishment of the differing requirements by indicating that there may be applicants who do not file a FAFSA or who do not complete all sections of the FAFSA, with both types of applicants to be denied an award in the event of a budgetary shortfall. LAC 28:IV § 501.B complies with the statutory requirements set forth in LSA-R.S.
7. If students are not required to reapply, what is the method prescribed for the continuation of the award if a student has met the criteria for maintaining his or her award?
LSA-R.S.
8. Does LSA-R.S.17:3048.1 provide for a method of elimination of awards due to an insufficient appropriation?
LSA-R.S.
(1) In the event the legislature appropriates insufficient money to fund all awards made to students qualifying under the provisions of this Section, the number of students to whom awards shall be made shall be reduced as necessary pursuant to a procedure set out by rule adopted by the administering agency. The procedure shall provide for such reduction to be based on the scores on the American College Test and then on the ability of each student's family to pay the student's tuition as evidenced by the expected family contribution determined by using the standardized federal methodology for establishing student financial need. The procedure shall provide that reductions of awards made necessary by insufficient appropriations shall first eliminate the cohort of students who score lowest on the American College Test. The procedure shall provide that within that cohort of students, those whose families are most able to pay the student's tuition shall be eliminated first. After insufficient appropriations require the elimination of all students in such cohort, the procedures shall require repeating the process with those students in the next highest score cohort.(2) Among students denied their awards as provided in this Subsection, those students whose families have the least capacity to pay shall be the first to receive their awards if monies become available. Any student for whom the expected family contribution cannot be determined as provided for in Paragraph (1) of this Subsection shall be denied his awards until the legislature appropriates sufficient monies to fund all awards made to students qualifying under the provisions of this section.
Pursuant to LSA-R.S.
LSA-R.S.
9. Do the Louisiana Administrative Code rules governing TOPS provide for a method of elimination of awards due to an insufficient appropriation?
Pursuant to the directive set forth in LSA-R.S.
C. Insufficient Funds Appropriated
1. All LASFAC administered State Scholarship and Grant Program Awards are contingent upon the annual appropriation of funds by the Louisiana Legislature.2. In the event appropriated funds are insufficient to fully reimburse institutions for awards and stipends for all students determined eligible for the TOPS Opportunity, Performance, Honors and TECH Awards for a given academic year, then the number of eligible students shall be reduced in accordance with the following procedures until such funds are sufficient.
a. Applicants who do not submit financial data on the initial FAFSA or a renewal FAFSA or who do not submit a renewal FAFSA to allow determination of eligibility for federal aid will be the first students eliminated from consideration if insufficient funds are appropriated for the program.
b. After the elimination of students under § 2107.C.2.a, if funds are still insufficient to award all of those students who remain eligible for award year 1998-99, then those students qualified by the actions of the First Extraordinary Session of 1998 shall be funded only after all awards to all students who are eligible pursuant to the requirements of this Chapter as they existed prior to any Act of the 1998 First Extraordinary Session of the Legislature are fully funded. Students qualified by actions of the First Extraordinary Session of 1998 include the following:
i. students qualified by reduction of Foreign Language requirement for 1996-97 and 1997-98 graduates;
ii. students qualified as Exceptional Students/Students with disabilities;
iii. students who graduated from out-of-state high schools; and,
iv. students who completed an Approved Home Study Program.
c. After the elimination of students in § 2107.C.2.a and b, if funds are still insufficient to award all of the remaining students, then those who remain will be prioritized according to their ACT score and, within ACT score, by their EFC in ranges of $1,000, from lowest to highest. Beginning with the lowest qualifying ACT score, the students with the highest EFC shall be eliminated until the funds available are sufficient to award all remaining students or until all students with that ACT score have been eliminated. This process shall be repeated, beginning with the lowest ACT score and progressing to the highest ACT score, until the projected expenditure for awards equals the funds appropriated for that purpose.
d. After the elimination of students in § 2107.C.2.a, if funds are sufficient to award all students who were eligible prior to the Act of the 1998 First Extraordinary Session of the Legislature, but are insufficient to award all students made eligible under such Act and listed in § 2107.C.2.b, then those students made eligible by such Act shall be rendered ineligible by application of § 2107.C.2.c, above, until funds available are sufficient to award all remaining students.
3. From among those students otherwise eligible who are denied an award because of the imposition of the procedures in § 2107.C.2, if additional funds subsequently become available for expenditure in the same award year, those students who have the highest ACT scores and the least capacity to pay, as evidenced by their families' lower EFC, shall be the first to be awarded by reversing the procedure described in § 2107.C.2.c.
The application provisions in LAC 28:IV § 501.A.3 and § 501.B.3 reiterate the category of students to first be eliminated as set forth in § 2107.C.2.a.
As previously discussed, rules are adopted by administrative agencies to further the legislative will set forth in statutes. Rules of statutory interpretation require that the word "shall" is mandatory. LSA-R.S.
LAC 28:IV § 2107.C.2.a provides that the first category of students whose awards would be eliminated in the event of an insufficient appropriation are those who do not submit financial data on the initial or renewal FAFSA or who do not submit a renewal FAFSA. LAC 28:IV § 2107.C.2.b establishes the next category of students whose awards would be eliminated, but appears to apply specifically to award year 1998-99. The ACT cohort system of reduction is established in § 2107.C.2.c as the final group of students whose awards would be eliminated. LSA-R.S.
LASFAC only has the power and authority granted in LSA-R.S.
A rule establishing a procedure which does not first eliminate those students who scored lowest on the ACT is contrary to the statutory mandate set forth in LSA-R.S.
10.Would continuing sophomores, juniors and seniors receiving TOPS awards be subject to the elimination of an award due to an insufficient appropriation?
Neither LSA-R.S.
Although the elimination process will apply to all classes of students, depending upon the ACT score required for eligibility when receiving the award as first-time freshmen, the process may result in more awards being eliminated from one class before another class. For example, in order to qualify for an "Opportunity Award," a student must have "a composite score on the 1990 version of the American College Test which is at least equal to or higher than the state's average composite score, rounded to the nearest whole number, reported for the prior year but never less than nineteen . . ." LSA-R.S.
11. Applying the method of elimination of awards due to an insufficient appropriation, how would an insufficient appropriation affect a student that scored a 28 on the ACT and did not complete the financial portion of the FAFSA when applying for TOPS compared to a student that scored a 20 on the ACT and completed the entire FAFSA when applying for TOPS?
As set forth above, it is this office's opinion that LASFAC has exceeded its statutory authority in the adoption of the award reduction procedure in LAC 28:IV § 2107.C.2. For purposes of discussion, we will answer this question applying the method of reduction mandated in LSA-R.S.
The elimination method set forth in LAC 28:IV § 2107.C.2 would result in all students who did not submit financial data on the initial or renewal FAFSA or who did not submit a renewal FAFSA being eliminated first. Applying that method of elimination to the facts provided would result in the student who scored a 28 on the ACT being eliminated first, before the student who scored a 20 on the ACT. The student who scored a 20 on the ACT would be in the remaining group of students subject to elimination. Pursuant to § 2107.C.2.c, the elimination of awards would proceed based on the ACT cohort and EFC method mandated as the first method of elimination in LSA-R.S.
12. Applying the method of elimination of awards due to an insufficient appropriation, how would an insufficient appropriation affect students who are within the cohort that scored the lowest on the ACT if they did not complete the financial portion of the FAFSA when applying for TOPS?
We refer you to our previous discussion of the reduction procedure mandated in LSA-R.S.
Your last four questions involve the method of elimination of awards due to an insufficient appropriation. The method of elimination of awards that was discussed involves applicants' EFC. Currently, because all students are being required to submit a FAFSA to a federal processor, the EFC is determined based upon the information submitted therein. If a student does not complete the financial portions of the initial or renewal FAFSA or does not submit a renewal FAFSA, the EFC cannot be determined. As found in this opinion, LSA-R.S.
I hope this opinion has sufficiently answered your inquiries. If I can be of further assistance to you, please let me know.
With best regards,
RICHARD P. IEYOUB ATTORNEY GENERALBy: ____________________________ Katherine M. Whitney Assistant Attorney General
RPI:KMW:lrs
DATE RELEASED: September 16, 2002
Benson & Gold Chev. v. La. Motor Veh. Com'n , 403 So. 2d 13 ( 1981 )
State v. Union Tank Car Co. , 439 So. 2d 377 ( 1983 )
Pearce v. Kramer , 128 So. 2d 304 ( 1961 )
Smith Milk Co. v. Pearce , 129 So. 2d 525 ( 1961 )
Realty Mart, Inc. v. Louisiana Bd. of Tax Appeals , 336 So. 2d 52 ( 1976 )
Charbonnet v. Board of Architectural Examiners , 205 La. 232 ( 1944 )
Kramer v. State Board of Veterinary Medical Exam. , 55 So. 2d 93 ( 1951 )
United States v. Shreveport Grain & Elevator Co. , 53 S. Ct. 42 ( 1932 )