Team IV (Discretionary Grants) finished its negotiations on Thursday without reaching consensus. Without consensus, the U.S. Department of Education (ED) is not obligated to honor agreements reached with the non-federal negotiators when it writes regulatory language to be published as a proposed rule. ED, however, indicated a desire to develop the best regulations possible.
Negotiators reached tentative agreement on all Migrant Education and GEAR UP issues by the end of the first day; the balance of the meeting was dedicated to topics affecting the TRIO Programs. The team came to tentative agreement on a number of TRIO issues early; ED considered and accepted alternative language proposed by non-federal negotiators for some topics.
Two issues in particular were the focus of lively debate. The first issue concerns allowable costs for Talent Search projects. One of the changes the Higher Education Opportunity Act of 2008 (HEOA) made to the program requires ED to judge projects on the number of participants who successfully complete a rigorous secondary school program, which is one of the criteria students must meet to receive the Academic Competitiveness Grant (ACG). Non-federal negotiators contend that projects should be allowed to use federal funds to pay a limited amount of tuition for participants to complete courses that are part of a rigorous program. Negotiators have anecdotal evidence that many of the schools served by Talent Search projects do not offer all of the classes required of a rigorous program. Negotiators believe that in order for projects to meet this outcome criterion, they must be able to provide financial support for students to complete specific classes elsewhere, for example at a community college or through distance education. ED believes it cannot make this regulatory change without statistical data that supports the non-federal negotiators' claims.
ED proposed including possible regulatory language in the Preamble to the NPRM, with a request for the community to submit data that confirms schools served by Talent Search projects do not offer the courses necessary for students to complete a rigorous program. ED could then have used the data to justify amending the Talent Search regulations when it publishes the final rule. This alternative was unacceptable to at least one non-federal negotiator.
The appeals process for unsuccessful applications also proved to be challenging. While ED has had an informal appeals process, the HEOA requires ED to establish a formal procedure for unsuccessful applicants who can document a technical, administrative, or scoring error. While non-federal negotiators understand the need for a formal appeals process, some aspects of ED's proposal proved troublesome. Specifically, negotiators were unwilling to accept a "set aside" of funds from a current appropriation to fund successful appeals. Doing so, contended negotiators, would have the effect of defunding otherwise funded projects. Non-federal negotiators also objected to the proposal to limit appeals to unsuccessful applicants within an ED-specified band; committee members favored opening the appeals process to unsuccessful applicants within a certain scoring range. For example, non-federal negotiators would have favored allowing unsuccessful applicants with a score within 10 points of a fundable project to appeal.
ED encouraged negotiators to present an alternative appeals process that met the following criteria: used funds within the current fiscal year, contained no deficit spending, provided funding for successful appeals, and was administratively feasible. At the end of the second day, ED proposed a concept negotiators were willing to consider. However, the failure to reach consensus on allowable costs for Talent Search made any additional negotiation on the appeals process meaningless.
Watch Today's News for an announcement regarding the publication of the NPRM.
By Jennifer Martin
NASFAA Assistant Director for Professional Assessment, Training, and Regulatory Assistance
Posted 05/04/09 to www.NASFAA.org. Redistribution to non-NASFAA institutions is prohibited. Please submit Web site questions or comments to Web@NASFAA.org.
