NASFAA Urges Department to Carefully Consider Proposed Regulations on Gainful Employment and Taking Attendance

In a letter to Secretary Arne Duncan, NASFAA Interim President Joan Crissman takes issue with two of the topics that caused recent negotiated rulemaking efforts to fail consensus. The letter urges the Department to avoid the temptation to circumvent the legislative process by interpreting terms that have not been clearly defined by Congress. Specifically, Crissman stressed caution on forthcoming proposed regulations dealing with taking of attendance for purposes of determining a student's withdrawal from school and the definition of gainful employment.

The term gainful employment is currently used to identify certain types of educational programs as eligible for Title IV assistance. The term has been in the law for decades, but has never been defined by congress. At issue is the large amount of debt students accumulate for low and/or moderately paying jobs, which the Department has sought to remedy during negotiated rulemaking through narrowly defining the term "gainful employment." The meaning of gainful employment would be linked to the median debt students have accrued upon completion of a given program.

"While we agree that it is clearly detrimental to allow students to amass large amounts of debt for low and/or moderately paying jobs, seeking to remedy this situation through defining the term gainful employment sets a dangerous and unnecessary precedent for dealing with policy issues that should be openly debated and decided by Congress," the letter states. The letter goes on to outline additional complexities and suggestions for dealing with unmanageable student loan indebtedness.

The letter also objects to ED's proposal to require institutions that voluntarily take attendance for a limited period of time to follow rules, for that period, applicable to institutions that are required to take attendance. Provisions dealing with attendance tracking can have far reaching effects on withdrawal dates and return of Title IV funds.

"The law refers to an institution that 'is required to take attendance,' not that 'takes attendance,'" the letter states. "The problem, which the law recognizes, is that institutions that are not required by some outside authority to take attendance throughout the enrollment period sometimes do so voluntarily for very limited periods of time and for purposes unrelated to determining seat time."

The letter asserts that such tracking does not constitute reliable "attendance records.

 

Publication Date: 3/25/2010


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