Gainful Employment Neg Reg Day 4: Disclosures

By Jill Desjean, Policy & Federal Relations Staff

Day four of the first of three sessions to rewrite federal gainful employment (GE) regulations began with a moment of silence to commemorate the anniversary of the attacks on Pearl Harbor and to honor those who have served, as well as those who are currently serving in the armed services.

The group then moved on to the final remaining issue for discussion — program information disclosures — beginning with the question of what types of information should be included in disclosures. Ideas presented that did not face opposition included disclosing whether prior criminal convictions could affect a student's ability to gain certification in the occupation for which their program prepares them, and a suggestion to clarify the "N/A" field values in the current disclosure template to avoid misunderstandings by students who might view the "N/A" as a failure of institutions to report, rather than as an exemption to reporting.

Some negotiators suggested job placement rates as a possible disclosure item, but others argued that placement rates can look poor for schools whose students go on to further study — for example, enrolling from a certificate program directly into an associate's degree instead of entering the job market. Despite the fact that this is also a favorable outcome, it would be masked by a job placement rate disclosure, they argued.

Jeff Arthur, vice president of regulatory affairs and chief information officer of ECPI University, lobbied for the inclusion of a time to completion of credential measure as a required disclosure. Daniel Elkins of the Enlisted Association of the National Guard of the United States countered that, although veterans persist to completion at higher rates than other groups, they often do not complete in typical timeframes and, hence, institutions that serve large numbers of veterans might have skewed completion data.

Discussions also included the merits of disclosing pending lawsuits against institutions, as well as reporting the percent of revenue institutions spend on instruction.

The federal negotiator, Greg Martin, threw a curveball into the negotiations by introducing borrower defense disclosures into the mix. Martin explained that the gainful employment negotiating committee is being tasked with examining both borrower defense and gainful employment disclosures in the interest of avoiding redundancy. He clarified that the borrower defense disclosures to be considered are those included in the 2016 final rule for which implementation is currently delayed and a separate negotiating committee has been established.

The Department of Education (ED) also prompted the committee to comment on the usefulness of incorporating loan repayment rates into disclosures. A loan repayment rate metric was included as an accountability measure in the 2011 gainful employment regulations but was later struck down in court. However, that action does not preclude ED from requiring the disclosure of loan repayment rates, which was the issue under discussion on Thursday. The discussion raised questions as to whether a program's loan repayment rate is an accurate indicator of program quality or, rather, if it reflects the demographics of the students the program enrolls. ED requested data from two negotiators who presented competing claims.

On the topic of how disclosures should be distributed to students, Johnson Tyler — senior attorney at Brooklyn Legal Services — stressed the importance of making disclosures prominent and not permitting schools to bury them where students are unlikely to see them. Kelly Morrissey, director of financial aid at Mount Wachusett Community College, and Thelma Ross, director of financial aid at Prince George's Community College, while agreeing on the importance of and need for disclosures, raised the issue of burden on schools to confirm student receipt of disclosures.

A range of views emerged as to whether disclosures should be required of all Title IV-eligible programs or just of GE programs. Several negotiators argued in favor of required disclosures for all Title IV programs. However, Tim Powers of the National Association of Independent Colleges and Universities (NAICU) noted that an equally important issue in this discussion is ED's statutory authority. While others noted ED's broad authority to require disclosures, Powers and Christopher Madaio, an assistant attorney general of Maryland, noted the distinction between types of programs in statute. Congress intentionally created the distinction between programs, he said, and only those that fall under Section 101(b) of the Higher Education Act (HEA) are required to prepare students for gainful employment. Programs not required to prepare students for gainful employment, Powers argued, should not be subject to disclosure requirements that relate to gainful employment.

ED will take the negotiating committee's suggestions into account as they develop draft regulatory language in preparation of the next negotiating session, scheduled for Feb. 5-8, 2018. Meeting facilitators prepared participants for the next round of negotiations by touching on the topic of consensus, advising them to arrive prepared to compromise and problem-solve, and to be prepared to think in terms of options and alternatives versus rigid positions.


Publication Date: 12/8/2017

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