The U.S. Department of Education concluded the third and final round of negotiated rulemaking on the new ACG and SMART Grant programs with two issues preventing unanimous consent among negotiators on the draft proposed regulatory language.
Draft language on academic year progression and language excluding certificate program students from ACG eligibility prevented six negotiators from consenting.
Negotiators reached tentative agreement on eight of the 10 issues, but couldn't agree to the full package of draft proposed regulatory language. Department officials made it clear that negotiators had to vote on the draft proposed language as a package and could not vote on specific issues. This prevented negotiators from reaching unanimous consent (defined as the absence of dissent).
Department officials warned negotiators that in the absence of unanimous consent the Department was free to change any proposed language as well as language in the preamble. In addition, this language would not be shared with negotiators in advance of the Notice of Proposed Rulemaking.
Department officials assured negotiators that they would consider all the discussion and work of the negotiated rulemaking committee when it drafting the proposed regulatory language, so the committee's work was not in vain.
If negotiators had consented to the draft language they would have been prohibited from speaking negatively about the proposed regulatory language to which they had already consented to.
Negotiators who did not consent to the language expressed appreciation for the Department's work, but were hesitant to set the language in stone through unanimous consent because they hoped to leave some room for improvement.
Fundamental disagreements about interpreting the law and the intent of the law prevented unanimous consent.
Regulatory language and draft proposed regulatory language on measuring academic year progression for ACG and SMART Grant has included a time element to measure students' weeks of instructional time. The Department has interpreted the law's reference to academic year as including a time element measured in weeks of instructional time. Negotiators disagree, arguing that there are ways to interpret the law that would eliminate the need to measure weeks of instructional time in order to determine academic year progression.
The Department would not deviate from this point and tried several ways to work around the problem to make it easier for institutions to determine academic year progression and give institutions flexibility in determining a student's eligibility. None of the options offered were acceptable to all negotiators so some dissented on the language because of this point.
Negotiators repeatedly argued that the law made no specific reference to certificate programs and it was in the spirit of the law to make ACG awards to students enrolled in certificate programs that are fully articulated into two- and four-year degrees. Department officials were not convinced. They used a variety of arguments to refute this claim, including that ACG was created for two- and four-year colleges and the intent of the law was not to extend ACG awards to certificate program students.
Department officials also argued that opening ACG to certificate program students would raise budgetary and fraud issues. Negotiators countered that these issues would be small relative to the benefit provided to certificate students who would be encouraged by the extra grant aid to further their higher education studies. This was the true intent of the law, negotiators said.
The following is the list of the 10 issues negotiated, changes (if any) that were made to the draft proposed regulatory language, and a summary of the discussion during the final round of negotiated rulemaking.
- Recognizing Rigorous Secondary School Programs
Minor Changes
No Dissent
The Department made a minor change to the draft proposed regulatory language to allow states to designate rigorous programs for future years. Under the new language a state could define what constitutes a rigorous secondary school program for two years, but then have a different definition of a rigorous program apply for years after.
Negotiators generally agreed with the draft proposed language, but some continued to express concern that the language specifically named the College Board's Advanced Placement courses and the International Baccalaureate program. One argued that the rigor issue could be easily addressed to provide fairness among vendors and offer choice for states in the intent of the law that created the programs. Department officials noted that the Department encouraged states to designate other vendors, but the Education Secretary wanted to leave AP and IB programs in the language because they are widely available.
Click here for the Department's summary of the issue and the draft proposed rule language.
- Mandatory Participation
No Change
No Dissent
Mandatory participation in ACG and SMART is required for institutions that participate in the Pell Grant program by the draft proposed regulatory language.
Click here for the Department's summary of the issue.
- Eligibility Of Certificate Programs For
ACG
No Change
Dissent
Department officials reasserted their position that the current interpretation of the regulations best meets the intent of the law. They maintained that it was a policy issue and not a legal issue. They sympathized with negotiators who wanted to allow certificate students to be eligible for ACG awards, but argued that it would not be easy to craft regulatory language to get the awards to the right students at the right programs. In addition, it would be difficult for institutions to administer the aid.
Negotiators reiterated their view that the statute does not limit ACG awards to students at two- and four-year programs. The statute only limits awards to students attending two- and four-year institutions. They admitted that opening ACG to certificate students would be administratively hard for schools, but said that institutions were willing to take this on.
Negotiators also argued the budgetary impact of opening ACG funds to certificate students. Some asked if funds designated for the programs that were not used this year could be used for ACG awards to certificate students. Department officials said that this was not an option, because it would still have a budgetary impact on the program in future years.
Negotiators also restated their argument that the draft language was unfair. In many cases students taking the same coursework would not be treated equally under the program because some could be in a certificate course. Department officials offered to put some language into the preamble that would encourage college advisors to counsel students to switch from a certificate program to a similar program that articulates into a degree to be eligible for ACG awards.
Department officials noted that it was unlikely they would change their mind on the issue, but said that certificate students don't lose ACG eligibility if they enter a degree program because their time in the certificate program does not count as weeks of instruction. However, they could lose out on SMART awards later in their educational career.
Click here for the Department's summary of the issue.
- Pell, ACG And SMART Awards Must Be Disbursed At The Same Institution
No Change
No Dissent
Since the administration of the ACG and SMART Grant program is inextricably linked to the Pell Grant program it is logical to require the same institution that administers Pell to administer the other grants in a consortium arrangement.
Click here for the Department's summary of the issue.
- GPA
- Transfer Students
Clarifying Changes
No Dissent
The Department made some changes to clarify issues that arise when determining a transfer student's GPA.
For transfer students who have completed the first academic year upon transfer, GPA is determined from all previous coursework that is accepted by the current institution and complete the student's first academic year.
For transfer students who have not finished their first academic year upon transfer, the GPA is determined using grades from all coursework from the prior institution that is accepted by the current institution and, when combined with grades from coursework at the current institution, completes students' first academic year.
If a SMART eligible student transfers the receiving institution has a few options to determine GPA eligibility. Institutions that do not incorporate grades from transfer coursework must (A) calculate the student's GPA using the grades earned from any prior coursework at prior institutions that it accepts towards the student's eligible program and (B) apply its academic policy for subsequent payment periods and not incorporate the grads from the transferred courses in to the GPA at the receiving institution. Institutions that incorporate grades from transferred coursework must determine GPA by the grades from the coursework accepted by the receiving institution for the eligible program.
Click here for the Department's summary of the issue and the draft proposed rule language.
- Coursework
No Change
No Dissent
The GPA associated with eligible coursework is intended to cover any ACG-eligible program coursework for the ACG program and any coursework applicable to an eligible program leading to a degree in a SMART-eligible major for the SMART grant program.
Click here for the Department's summary of the issue.
- Timing Of Calculation
Technical Change
No Dissent
A technical wording change was made. The Department maintained that requiring institutions to check cumulative GPA from the most recently completed payment period is the best interpretation of the law. Some negotiators disagreed with the Department's interpretation and thought the law could allow for annual assessment of GPA, but there was no dissent to the language.
Click here for the Department's summary of the issue and the draft proposed rule language.
- Eligibility Of Disbursement
No Change
No Dissent
The language gives institutions flexibility to reconsider a student's eligibility for ACG or SMART during a payment period depending on when the grads are earned or posted.
Click here for the Department's summary of the issue.
- Academic Year Progression
Changes Proposed
Dissent
Concerns continued to be raised concerning the impact of using weeks of instructional time to measure the academic year progression of students for eligibility. This element makes it difficult for institutions to administer the grant programs and for students to understand eligibility requirements. The Department wrestled with making the regulations flexible for institutions to administer and making the regulations simple to implement and easy to understand. The Department's solution was to allow institutions to determine weeks of instructional time through two assumption methods. Institutions would have to choose to assume weeks of instructional time based on a student's grade level or the number of credits earned. Institutions could choose the assumption method that would benefit the greatest number of its students on a program by program basis. Students that do not qualify for aid under the assumption method used for the program they are in could request or be advised to request the exact accounting method. The school would then make an exact accounting of the weeks of instructional time to determine if the student became eligible under this method.
Negotiators objected to the language because an institution could not associate weeks of instructional time with credits accepted towards the student's eligible program that the student earned:
- From Advanced Placement programs,
- From International Baccalaureate programs,
- Through testing out, life experience, or other similar methods, or
- While not enrolled as a regular student in an ACG- or National SMART Grant-eligible program.
Negotiators also favored allowing a school to choose, on a student-by-student basis, which options it would use to establish student's weeks of instructional time instead of requiring that one of these options or an exact determination be used for all students enrolled in an eligible program.
The Department made it clear that it would not budge on these points causing some negotiators to dissent on the entire package of draft proposed regulatory language.
Click here for the Department's summary of the issue and the draft proposed rule language. Note: the Department provided paper copies of additional draft language at the negotiated rulemaking session.
- Interpreting Prior Enrollment, Dual Enrollment, And Early
College Programs
Minor Change
No Dissent
The Department added some language to clarify that a student’s ACG eligibility would not be threatened by being enrolled as a regular student in an eligible program while at or below the age of compulsory school attendance. Department officials noted that this narrowed the definition of prior enrollment to allow more students to be eligible.
Click here for the Department's summary of the issue and the draft proposed rule language.
- Major Eligibility
- Eligible Majors And CIP Codes Expansion
No Changes
No Dissent
The Department has provided a transparent process for institutions to request additional majors to be added to the list of eligible majors.
Click here for the Department's summary of the issue and the draft proposed rule language and the draft Federal Register instructions for amendatory
language.
- Institutional Flexibility To Determine Timing Of Declaring Eligible Major
Minor Changes
No Dissent
The Department provided a transparent procedure to validate student intent to declare an eligible major. Validation of student intent is determined to consist of two components: a written declaration of intent provided by the student; and written documentation of institutional monitoring of student coursework progression in the student's intended eligible major. Department officials noted that they tried to stay away from exact timing measures and that electronic communications are accepted as a written declaration.
Click here for the Department's summary of the issue and the draft proposed rule language and the draft Federal Register instructions for amendatory
language.
- Completion Of A Rigorous Secondary School Program Of Study
Minor Changes
No Dissent
The Department made some minor wording changes to provide some flexibility for institutions to define successful completion of a rigorous high school program. Some negotiators expressed concern that the language could be unfair because institutions might have a different definition of successful completion. For example, one institution might consider a 2.0 GPA successful completion while another might consider a 1.0 GPA successful completion. Department officials recognized this concern, but did not want to create a definition because it would take authority from institutions and states.
Click here for the Department's summary of the issue and the draft proposed rule language.
- Departmental Monitoring Of Student Disbursements
No Change
No Dissent
Beginning with the 2007-08 processing year, FSA has instituted some systems changes to help institutions track ACG/SMART eligibility. The Department noted that this is not a regulatory issue, but it wanted to get negotiators input on the subject.
Click here for the Department's summary of the issue.
