During the second and third days of negotiated rulemaking on the Higher Education Opportunity Act of 2008, negotiators discussed changes made to the GEAR UP program, the High School Equivalency Program (HEP), and the College Assistance Migrant Program (CAMP). During this first 3-day meeting the Department collected feedback from the negotiatiors on the issues. The Department will use the feedback to draft regulatory wording, which will be reviewed and discussed in detail at the second 3-day meeting at the end of March.

The Department of Education's list of issues on GEAR UP, HEP, and CAMP and some points raised by negotiators are listed below.

GEAR UP

Priority

Summary of issue: The HEOA gives a priority in funding to entities that (1) have carried out successful GEAR UP programs prior to enactment of the HEOA, (2) have a prior, demonstrated commitment to early intervention, leading to college access through collaboration and replication of successful strategies, and 3) ensure that students served by GEAR UP programs prior to the enactment of the HEA continue to receive services through the completion of secondary school. Under previous regulations, the Secretary could choose to provide priority to applicants in Empowerment Zones or to partnerships that award scholarships.

Issues Raised by Negotiators

• How do we define a successful GEAR UP program?
  • Measurement of outcomes needs to be data-driven and flexible
• How do we define "prior, demonstrated commitment to early intervention"?
• Ensure that "prior, demonstrated commitment to early intervention" does not penalize newer programs
• Same priority does not need to be given to all three

Funding Rules

Summary of issue: The HEOA requires the Secretary to award at least 33 percent of the GEAR UP appropriation to States; at least 33 percent to partnerships; and to award the remainder "taking into consideration the number, quality, and promise of applications for the grants" and, to the extent practicable, the geographic distribution of grants and the distribution of grants between urban and rural applicants. The HEA has always required the distribution of at least 33 percent of funds to States and to partnerships. The language regarding how the remaining funds are distributed is new.

Issues Raised by Negotiators

• Does geographical distribution need to be regulated?
• Need to make the process more transparent
• Should geographic distribution consider population?
• Could states apply as a consortium to serve a geographic area?
• Difficulty of providing services in rural areas (including skill level of staff)
• Review maximum grant amount for partnership grants
• Evaluate grant size

Duration of awards

Summary of issue: Previously, GEAR UP grants were awarded for a period of up to six years. The HEOA provides authority for grantees to apply for an optional seventh year of funding. The purpose of the new seventh year is to provide services at an institution of higher education to follow students through their first year of college attendance.

Issues Raised by Negotiators

• What would seventh year services entail?
• Would programs have to serve all students during the seventh year?
• Should seventh year services be a funding priority?
• Applicability to current grantees
• Don't want to duplicate services for which the student is eligible at the institution of higher education
• Tracking issues
• Impact on quality of services
• Should coordination language be added to regulations?

Revised Definition of Partnerships

Summary of issue: The HEOA changed the definition of an "eligible entity" to include a partnership consisting of 1) one or more local education agencies and 2) one or more degree granting institutions of higher education. Partnerships may include not less than two other community organizations or entities. A previous requirement that partnerships must include one or more elementary or secondary schools was eliminated.

Issues Raised by Negotiators

• Conforming change - no discussion

Changes to Matching Requirements

Summary of issue: Generally, GEAR UP grantees are required to match one dollar of non-federal funds for every federal dollar awarded. The HEOA makes a number of changes to the GEAR UP matching requirement. Previously, grantees were expected to meet matching requirements each year. The HEOA provides that grantees can meet their matching requirements over the entire life of the grant if they make "substantial progress" in meeting the matching requirements each year. The HEOA also expands the types of contributions that can be considered part of the matching funds to include the costs of administering a scholarship program under the grant-funded project.

Issues Raised by Negotiators

• Should the definition of "substantial progress" be regulated or evaluated on a case by case basis by the Department?
• Counting of nonfederal scholarship dollars
• Supplementing not supplanting funds
• Examples of other contributions that can count towards match

Waiver of Matching Requirements

Summary of issue: Under the HEA as previously authorized, the Secretary could, under certain circumstances, modify the percentage match requirement applicable to a partnership. The HEOA retains this provision, and also authorizes the Secretary to approve the following types of requests for reduction in match: (1) requests made at the time of an application, if the applicant demonstrates a significant economic hardship that precludes it from meeting the match requirement, (2) requests from partnership applicants to count contributions to scholarship funds established under section 404E on a two to one basis, or (3) requests made by a grantee demonstrating that the matching funds identified in an approved application are no longer available and the grantee has exhausted all reserves for replacing them.

Issues Raised by Negotiators

• Should "significant economic hardship" be regulated or could the Department evaluate it on a case by case basis?
• Perhaps including list of possible indicators of significant economic hardship in regulation

Required and Allowable Activities

Summary of issue: The HEOA modifies the GEAR UP program by distinguishing between certain activities and services that projects must provide and optional activities that projects may offer. Prior to the new law, projects could choose from a number of allowable activities and services.

Issues Raised by Negotiators

• Conforming change
• Possibility of adding career exploration and career planning under one of the services listed in the statute

Scholarship Component/Funds Held in Reserve for Scholarships

Summary of issue: The HEOA requires State grantees to hold in reserve funds for scholarships for eligible students in an amount that is not less than the minimum scholarship amount multiplied by the number of students that the State estimates will enroll in an institution of higher education. The State must make these funds available to eligible students who meet certain benchmarks. These scholarships are portable and may be used outside the State in which the GEAR UP program is located. Grantees are also required by the HEOA to provide information on the eligibility requirements for scholarships to all participating students upon the students' entry into the programs assisted under this chapter.

Issues Raised by Negotiators

• What does "portability" mean? Statute is confusing
• How does this affect existing contracts that grants have with partners regarding scholarship funds?
• Amount held in reserve

Redistribution or Return of Unused Scholarship Funds/Reporting on Scholarship Monies after the Grant Period

Summary of issue: Previously, the HEA was silent as to the disposition of unused scholarship funds after the closure of a GEAR UP grant. The HEOA specifies that grantees may redistribute any unused funds not distributed to eligible students within six years of their completion of high school to other eligible students. The HEOA also requires State grantees to return to the Secretary any remaining scholarships funds to be redistributed by the Secretary to other grantees.

In order for the Secretary to implement this provision, grantees may need to report on their scholarship funds after the completion of their grant award periods. At present, grantees have no accountability or reporting responsibilities to the federal government after the grants close.

Issues Raised by Negotiators

• Accountability measure
• Grantees could release funds to partnerships or TRIO projects to use for scholarships
• Encourage more accurate estimate of students to be served by project

Continuity of Student Services

Summary of issue: The HEOA requires the Secretary to require eligible entities to continue to provide services to students who received services under a previous GEAR UP grant award but have not yet completed the 12th grade. Under the GEAR UP program, grantees may choose to add new cohorts (grade levels) of students each year of a grant and there is no minimum grade level at which services may begin. Accordingly, grants can end before students have completed high school. The HEOA requires eligible entities to provide services to those students through the 12th grade. Prior to the new law, there was no provision for grantees to serve students from a previous grant.

Issues Raised by Negotiators

• Does a previous GEAR UP grant award refer to any previous GEAR UP award?
• Impact on states providing services for students younger than seventh grade
• What services must be provided?
• Must all students continue to receive services?
• Would grantees be required to provide services through 12th grade even if they're not continuing to receive federal funds under a new grant?
• Include continuation of partnership with school district in application
• Coordinate with TRIO
• Difficulty in serving students after 6th year: not all stay in high school and may be hard to find

High School Equivalency Program (HEP) and College Assistance Migrant Program (CAMP)

HEP and CAMP Eligibility

Summary of issue: Formerly, the HEA authorized the recruitment into HEP and CAMP programs of individuals "who themselves, or whose parents" have spent a minimum of 75 days during the past 24 months in migrant and seasonal farmwork. The HEOA revised this provision to permit recruitment of those "who themselves or whose "immediate family" spent such time in migrant and seasonal farmwork. Current regulations reflect the law as previously enacted. The HEOA does not define an "immediate family" member.

Issues Raised by Negotiators

• Definition of "immediate family member"
• Concept of "immediate family member" as household members
• Avoid dependence on legal relationships
• Be inclusive

HEP and CAMP Eligibility

Summary of issue: The statute provides for eligibility if an individual or his or her immediate family has "spent a minimum of 75 days during the past 24 months in migrant or seasonal farmwork". The HEOA made no change in the quoted phrase. Program regulations define the term, "seasonal farmworker" as one who "within the past 24 months, was employed for at least 75 days in farmwork, and whose primary employment was in farmwork on a temporary or seasonal basis (that is, not a constant year-round activity)." The regulation does not clarify whether the requisite "primary employment" must occur within the 75 days or over the two years.

Issues Raised by Negotiators

• Current regulation not clear
• Ensure that program targets intended participants

Reservation and Allocation of Funds

Summary of issue: The HEOA provides a formula for determining the amount of appropriated funds to be made available for HEP and CAMP awards. The HEOA permits the Secretary to reserve 1/2 of one percent of the HEP and CAMP appropriation to conduct outreach, technical assistance, and professional development.

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