Student Eligibility: Drug Convictions and Federal Financial Aid

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The Higher Education Amendments (HEA) of 1998 added a provision to the Higher Education
Act of 1965, as amended, to suspend eligibility for federal student assistance (grants, loans, or
work assistance under Title IV of the HEA) for any student who is convicted of a state or federal
offense for the sale or possession of a controlled substance. This provision was amended by the
Deficit Reduction Act of 2005 (DRA) to apply only to students who were convicted for the sale
or possession of a controlled substance that occurred while the student was enrolled in
postsecondary education and receiving Title IV student aid. DRA did not change the criteria
pertaining to the period of ineligibility due to a conviction for the sale or possession of a
controlled substance. It remains that the period of ineligibility is determined by the recency of the
conviction, the number of prior convictions, and whether the conviction was for selling or
possessing a controlled substance. A student is considered indefinitely ineligible after the third
conviction for possession and after the second conviction for selling a controlled substance.
Participation in an eligible rehabilitation program enables a student to reestablish eligibility. This
report includes a description of the drug conviction provision and a brief discussion of selected
reauthorization issues. This report will be updated as warranted by major legislative or other
relevant developments.

Backgr ound ............................................................................................................................... 1
Eligibility ............................................................................................................................ 1
Rehabilitation ...................................................................................................................... 2
Estimated Impact.......................................................................................................................3
Deficit Reduction Act................................................................................................................5
Reauthorization Issues..............................................................................................................5
Singling Out Drug Abuse..........................................................................................................5
Severity of Crimes.....................................................................................................................6
Table 1. Estimated Number of Ineligible Federal Student Aid Applicants by Location of
Postsecondary Institution: Award Years 2000-2001 Through 2006-2007....................................3
Author Contact Information............................................................................................................6

he Higher Education Amendments (HEA) of 1998 (P.L. 105-244) added a provision,
Section 484(r), to the Higher Education Act of 1965 to suspend eligibility for federal
student aid (grants, loans or work assistance under Title IV of the HEA) to students who T

were convicted for the sale or possession of a controlled substance. Although the provision was
not scheduled to go into effect until two years after the reauthorization, debate regarding the
implementation of the provision immediately ensued. Many policymakers questioned the
appropriateness of denying financial assistance to individuals who had already been convicted of
a crime and paid their debt to society. Other policymakers questioned the Department of
Education’s (ED) interpretation of the bill’s language and their subsequent implementation of the
policy. The debate has continued since the last reauthorization of the HEA.
Campus crimes, including the sale and use of illegal drugs, were among the topics discussed
during the debates over the 1998 HEA amendments. During the discussion, studies were
introduced that illustrated that, although campus crime rates in general were decreasing, the ¹
number of drug-related incidents on campuses was increasing. In various reauthorization ²³
hearings and in committee reports, Congress expressed concern about the increasing number of
drug and alcohol-related incidents occurring on college campuses. During the reauthorization
discussions, Representative Souder stated that the country was facing an epidemic of drug abuse,
and proposed the provision on student eligibility as an “important first step” in dealing with this ⁴
epidemic. Congress ultimately added the provision to eliminate student eligibility for financial ⁵
assistance for those who were convicted of drug-related crimes, as a part of P.L. 105-244.
The legislation specifies that any student who is convicted⁶ of a state or federal offense for the ⁷
sale or possession of a controlled substance shall not be eligible to receive any federal student
assistance under Title IV of the HEA. The period of ineligibility depends upon whether the
conviction was for the sale or possession of a controlled substance, the recency of the conviction, ⁸
and the number of prior convictions. A student becomes indefinitely ineligible if he/she has more
than two convictions for possession or more than one conviction for selling a controlled
substance. Once a student is deemed indefinitely ineligible, the student must successfully
complete an approved drug rehabilitation program (to be further discussed later), or the

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conviction must be removed from the student’s record, in order for the student’s eligibility to be
reinstated. The period of ineligibility begins on the date of such charge and ends after the interval
noted in the following:
Possession of a controlled substance—ineligibility period for the first, second, and third offense
is
• First offense: one year from the date of the conviction;
• Second offense: two years from the date of the conviction;
• Third offense: indefinite.
Sale of a controlled substance—ineligibility period for the first and second offense is
• First offense: two years from the date of the conviction;
• Second offense: indefinite.
According to the 2006-2007 Federal Student Aid Handbook (Volume 1, Student Eligibility), any
convictions that occurred prior to the student turning 18, unless the student was tried as an adult,
or any convictions that were overturned, reversed, or otherwise removed from the student’s ⁹
record are not used in determining eligibility.
A student who is indefinitely ineligible for federal financial assistance must complete a drug
rehabilitation program in order to reacquire eligibility. According to the program regulations (34
C.F.R. § 668.40), an eligible rehabilitation program is one that meets the following requirements:
• Has received or is qualified to receive funds directly or indirectly under a federal,
state or local government program;
• Is administered or recognized by a federal, state or local government agency or
court;
• Has received or is qualified to receive payment directly or indirectly from a
federally or state licensed insurance company; or
• Is administered or recognized by a federally or state licensed hospital, health
clinic or medical doctor.
In addition, the rehabilitation program must include at least two unannounced drug tests.
Participation in a rehabilitation program reduces ineligibility to the preceding applicable period.
For example, if a student has been convicted three times for possession of a controlled substance,
participation in a rehabilitation program reduces the ineligibility period to the equivalent of two
convictions (e.g., two years from the date of the most recent remaining conviction). A person can
participate in a rehabilitation program for any of the convictions, not just those resulting in
indefinite ineligibility. In addition, future convictions will make the student ineligible again.

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Upon completion of the rehabilitation program the student self-certifies that he/she has in fact
completed the course.
It is estimated that more than 180,000 students have been denied federal financial aid or had the ¹⁰
receipt of federal aid delayed since the adoption of this provision. According to data released by
the organization Students for Sensible Drug Policy, this has represented fewer than .25% of all ¹¹
federal financial aid applicants since the provision was enacted. However, at least two states,
California and Texas, have had a large number of students who have been declared ineligible as a
result of this provision (see Table 1).
Table 1. Estimated Number of Ineligible Federal Student Aid Applicants by Location
of Postsecondary Institution: Award Years 2000-2001 Through 2006-2007
^{Percent of A}^pplicants
^{Location Total}^Applicants^{Applicants Denied Aid}^{for D}^rug^Conviction^{Denied Aid for D}^rug
^Conviction
^{Alabama 1,14}^8,57⁸^2,38⁹^0.21%
^{Alaska 142,}⁰⁸⁹³⁶³^0.26%
^{Arizona 1,22}^9,67⁷^2,55⁷^0.21%
^{Arkansas 682,}⁵⁷³^1,85⁸^0.27%
^{California 8,79}^4,43¹^31,8³⁰^0.36%
^Colorad^{o 1,16}^2,57⁸^2,46⁷^0.21%
^{Connecticut 804,}⁵⁸⁹^2,24²^0.28%
^{Delaware 175,}⁶⁴⁷⁴¹⁰^0.23%
^{District of Columbia}^141,⁵²⁵³²⁸^0.23%
^{Florida 4,10}^7,48²^9,18⁰^0.22%
^{Georgia 2,33}^9,50⁵^5,80³^0.25%
^{Hawaii 252,}⁹⁵⁹⁴⁷²^0.19%
^{Idaho 398,}⁴⁰⁹⁹⁴⁶^0.24%
^{Illinois 3,24}^0,33¹^8,07¹^0.25%
^{Indiana 1,77}^8,98²^8,90³^0.50%
^{Iowa 915,}⁰³⁴^2,36⁷^0.26%
^{Kansas 768,}⁷⁸⁵^1,58¹^0.21%
^{Kentucky 1,06}^0,04²^2,78²^0.26%

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^{Percent of A}^pplicants
^{Location Total}^Applicants^{Applicants Denied Aid}^{for D}^rug^Conviction^{Denied Aid for D}^rug
^Conviction
^{Louisiana 1,33}^3,91²^2,89⁰^0.22%
^{Maine 356,}³⁹⁴⁶⁶⁹^0.19%
^{Maryland 1,37}^5,53⁸^2,78⁰^0.20%
^Massach^{usetts 1,56}^6,88⁸^3,00⁴^0.19%
^{Michigan 2,78}^3,66⁸^6,72²^0.24%
^{Minnesota 1,44}^1,99¹^2,50³^0.17%
^{Mississippi 849,}⁴³⁸^1,96⁹^0.23%
^{Missouri 1,50}^5,03³^2,81⁹^0.19%
^{Montana 282,}⁸¹⁹⁴⁸³^0.17%
^Nebras^{ka 498,}²⁷³⁷⁸²^0.16%
^{Nevada 346,}⁵¹⁸⁶³¹^0.18%
^{New Ham}^pshire^322,⁷⁶²⁵⁴¹^0.17%
^{New Jers}^ey^2,04^8,01⁵^4,65⁰^0.23%
^{New Me}^xico^531,¹⁷⁰^1,04⁶^0.20%
^{New York}^5,51^3,79⁷^8,96²^0.16%
^{North Carolina}^1,88^7,65⁷^5,32³^0.28%
^{North Dakota}^226,⁸⁷⁰⁴⁵³^0.20%
^{Ohio 3,19}^4,88⁰^7,66⁴^0.24%
^{Oklahoma 964,}⁹⁰⁰^2,50⁸^0.26%
^{Oregon 997,}⁷¹⁰^3,63⁷^0.36%
^{Pennsylvania 3,23}^0,72⁹^6,01⁰^0.19%
^{Puerto Rico}^1,48^5,83²^2,26¹^0.15%
^{Rhode Island}^274,¹⁶⁷⁸⁰⁷^0.29%
^{South Carolina}^1,11^2,72⁰^2,79⁸^0.25%
^{South Dakota}^251,⁰²¹⁴⁵⁵^0.18%
^{Tennessee 1,43}^7,01⁴^3,34²^0.23%
^{Texas 5,61}^1,43⁵^15,0²⁶^0.27%
^{Utah 645,}⁶⁹²^1,15¹^0.18%
^{Vermont 172,}⁶²⁵²⁰⁴^0.12%
^{Virgin Islands}^28,7⁸⁹³⁷^0.13%
^{Virginia 1,63}^9,75⁵^3,21⁷^0.20%
^{Washington 1,58}^5,72⁰^4,76²^0.30%
^{West Virginia}^488,¹⁹³⁸⁴⁷^0.17%
^{Wisconsin 1,34}^5,34⁵^2,89⁷^0.22%
^{Wyoming 137,}⁵⁹⁷³⁰⁷^0.22%
^{Outlying Areas}^102,⁶⁷⁶²⁴⁵^0.24%

^{Percent of A}^pplicants
^{Location Total}^Applicants^{Applicants Denied Aid}^{for D}^rug^Conviction^{Denied Aid for D}^rug
^Conviction
^{U.S. Mi}^{litary Facil}^ities⁹⁶⁷²^0.21%
^{Foreign Country}^59,0²⁵⁴⁸^0.08%
^{Unknown 3,59}⁶⁶⁴^1.78%
^{Total 76,7}^84,3⁴⁷^189,⁰⁶⁵^0.25%
^Source:^{CRS estimates based on}^{data received by t}^{he no}^n-profit^{organization, Students for Sensible Drug Policy,}
^{from the U.S. Department}^{of Edu}^cation.
Largely in response to the confusion and contention surrounding the provision, the Deficit
Reduction Act of 2005 (DRA) (P.L. 109-171) was enacted to change the manner in which the
provision was being implemented. The amended provision specifies that only those convictions
for the sale or possession of a controlled substance that occur while the student is enrolled in
postsecondary education and receiving Title IV student aid would disqualify a student from
receiving federal student aid. The DRA did not change the provisions pertaining to the period of
ineligibility due to a conviction for the sale or possession of a controlled substance. It remains
that the period of ineligibility depends upon whether the conviction was for the sale or possession
of a controlled substance, the recency of the conviction, and the number of prior convictions.
Title IV of the HEA may be considered in the upcoming reauthorization. There are several
legislative proposals to modify the existing drug conviction provision. Since its initial enactment,
issues have continued to arise, including how the provision should be implemented, what types of
penalties, if any, should be imposed, who should be penalized, and whether there are other crimes
that are more deserving of disqualifying a student from receiving financial aid. The following
section presents a brief analysis of selected issues that may be considered during the
reauthorization discussions.
In the discussions surrounding the addition of this provision to the student eligibility requirements
during the 1998 reauthorization, the increased incidence of drug usage on college campuses was
continually referenced. Many policymakers expressed concern about the growing number of
drug-related crimes that were reported each year by institutions across the country. Largely in
response to this increasing problem, Congress included this provision for eligibility. However,
critics assert that drugs are unfairly being singled out. Representative Frank is reported to contend
that singling out drugs as the only crime for which a student can lose financial aid eligibility ¹²
treats drug convictions more harshly than rape, arson or armed robbery. Supporters maintain

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that robbery, rape and arson are less likely to occur on a college campus than drug-related crimes,
thus justifying the focus on drug-related crimes.
The implications of limiting the loss of financial aid eligibility to students convicted of drug-
related crimes might be considered during reauthorization. If it was the intent of Congress to deter
certain illegal behaviors occurring on college campuses when this provision was included, crimes
such as alcohol abuse on college campuses may arise as an issue.
As noted above, the existing provision does not distinguish between a misdemeanor or felony
drug-related conviction. At present all convictions, whether or not the conviction warranted jail or
prison time and regardless of the amount of time served, result in a loss of eligibility. The separate
ineligibility periods and the allowable number of convictions for selling versus possession of a
controlled substance acknowledges a difference between those who use and those who sell.
Similarly, Congress may debate the difference between a felony and a misdemeanor drug
conviction in relation to suspending eligibility for student aid.
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