The U.S. Department of Education on Monday began the latest round of negotiated rulemaking (negreg) to review program integrity issues. During yesterday's meeting negotiators and the Department agreed on protocols, changes to the panel of negotiators, and the subjects to be discussed during this round of negreg.
Over the next week, Department officials will meet with representatives from the higher education community to negotiate regulations on the following issues:
- Definition of High School Diploma
The negreg committee will discuss how the Department can develop regulations that define a "high school diploma" for the purpose of establishing eligibility to participate in the Federal student aid programs and to ensure that only eligible students receive Federal student aid. The negotiating committee will discuss what steps the Department should take to combat the use of diplomas obtained through diploma mills, whether documentation requirements should be strengthened, and how to ensure the authenticity of a student’s high school experience whether it be through the receipt of a high school diploma, home schooling credentials, diplomas obtained from online training or private schools. ED further asks whether it should require that high schools be recognized by a State agency, and whether accreditation should play any role.
- Ability to Benefit
The committee will address concerns raised by the Government Accountability Office (GAO) about the analyses ability-to-benefit (ATB) test publishers prepare and submit to the Department. The negotiating committee will also discuss the new ATB provision included in the Higher Education Opportunity Act (HEOA) that considers satisfactory completion of 6 college credits acceptable towards a degree or certificate as demonstration of ability to benefit.
- Misrepresentation of Information
The panel will discuss if the Department should revise the regulations or provide additional guidance about the types of statements and communication that could constitute "misrepresentation" and whether some adaptation of Federal Trade Commission (FTC) guidelines should be applied to all institutional types.
- Incentive Compensation
Negotiators will discuss if the "safe harbors" should be maintained, amended, or eliminated in whole or in part from the regulations. The Department has received complaints from students and enrollment advisors about the high-pressure sales tactics of some post secondary institutions. Some argue that tying staff compensation to the number of students enrolled is an inherent conflict of interest and that the safe harbors undermine the statutory ban on incentive compensation. The Department has also heard from a number of educational institutions that the lack of clear guidance prior to establishment of the safe harbors made it very difficult for institutions to be confident of their compliance with the rule.
- State Authorization
Negotiators will discuss if institutions should be allowed to participate in the title IV programs if a State does not license or otherwise authorize an institution to offer post secondary programs in the State. What should constitute State authorization? Should there be any minimum standards for State authorization for purposes of determining institutional eligibility to participate in the title IV programs? Is it adequate for title IV purposes for a State agency to rely solely on accreditation as the determinant of State authorization?
- Gainful Employment
Programs that are eligible because they prepare students for gainful employment in a recognized occupation may be offered by any type of eligible institution of higher education. The panel will discuss if the Department should require that institutions cite the occupational names and codes for occupational training programs, and if so, how the disclosure should be made. Should "gainful employment" be defined? And if so, what should be the relationship between tuition and fee charges (and/or loan debt) and expected earnings? For programs where this relationship is not reasonable, when and how should the Department no longer consider the program to be an eligible program for title IV purposes?
- Definition of Credit Hour
Negotiators will discuss if the Department should establish minimum standards to define a credit hour for title IV purposes. The Department received comments expressing concern that the definition not be so narrow as to stem the tide of important innovations such as weekend courses, distance learning, and a variety of alternative schedules. Other comments argued that accrediting agencies can best determine whether academic outcomes are being achieved and that they should be relied upon for determining whether an institution is appropriately awarding credits.
Should there be a regulatory definition of a credit hour for title IV purposes? Would a different definition be needed for post secondary vocational education, for undergraduate education, and for graduate study? What about for distance education and other nontraditional programs? What relationship would such a title IV definition have to accrediting agencies standards for program length?
- Agreements Between Institutions of Higher Education
The panel will discuss whether an institution should be permitted to confer a degree or certificate bearing its name when it has provided none of the instruction and conducted none of the evaluations to determine if the student has satisfied the requirements of the program. Should institutions be required to provide a least a minimum portion of a program if they are to award the degree or certificate? Should accrediting agencies be required to review consortium agreements if all or a majority of an educational program is being provided by institutions other than the "home" institution? If the arrangement is between an institution that has not been approved by its accrediting agency to offer distance education programs and one that has been approved for distance education, should the first institution be allowed to offer a distance education program? Should different limitations be imposed when both institutions are under the same ownership?
- Verification
The negotiators will discuss whether verification should be more targeted to individual student circumstances rather than a set list of items for everyone. ED also asks if additional verification items, such as dependency status, which has generated some concern since it was eliminated as a verification item, should be added to the list? Should some general language be added requiring verification of other items, as identified by the Secretary? Should all first time applicants be verified? This might help first time students through the process and reduce the need for verifying their applications in future years. The provision that institutions are required to verify no more than 30% of applicants was originally based on a statutory provision that has since been removed. Should the 30% limitation be revisited? If the regulations are restructured so that institutions are required to verify fewer data elements, should institutions be required to verify a higher percentage of applicants?
- Satisfactory Academic Progress
The panel will discuss if the department should modify and strengthen the satisfactory academic progress (SAP) regulations to ensure that students who are receiving Title IV aid are truly progressing in their academic program in a reasonable time period. Among the SAP questions posed by ED are the following:
- Use title IV funds to retake courses to get a better grade
- Increasing the frequency of SAP reviews to more than once each year
- Application of the "C" average standard to programs shorter than 2 years
- Standards that lead to successful completion of the program in the timeframe
- Limitations on probationary periods
- More specific appeals policies
- SAP for graduate programs
- Retaking Coursework
The panel will discuss if the Department should harmonize the treatment for retaking coursework between term-based credit hour programs and other programs? If so, the Department should consider not paying for repeating coursework for any program. This approach may affect the payment period definition. As an alternative, the Department could codify current guidance which allows payment for courses that are retaken if the credits are in addition to (rather than replacement of) previously earned credits and the student meets SAP standards. Should the Department require schools to assess a student before the student is allowed to repeat coursework after an extended absence? How should the Department treat a student enrolled in a term-based program that is treated as a non term program for purposes of FFEL and Direct Loans? What is the impact on non term programs of the re enrollment requirements for clock-hour and non term credit-hour programs in the payment period definition?
- Return of Title IV Funds: Term-based Module Program
The panel will discuss if modifications are needed to the current policies defining when a student has withdrawn from a period of attendance when the coursework is taught in modules.
- Return of Title IV Funds: Institutions Taking Attendance
The panel will try to determine if the requirements for return of title IV funds related to taking attendance need to be modified. For example, ED would like the panel consider whether the definition of an institution that is required to take attendance should be modified by removing from regulation the provision that an institution must take attendance only if it is required to by an outside entity.
- Timeliness & Method of Disbursement
The Department will try to determine if it should establish disbursement procedures that limit how long an institution may delay disbursing Federal Pell Grant funds. And, should the Department revise the disbursement reporting requirements of the Direct Loan and TEACH Grant programs to match requirements of other Title IV programs reporting student-level data?
Negotiators include a NASFAA staff member and three aid administrators nominated by NASFAA. Today’s News will carry daily updates of the Program Integrity Issues Negotiated Rulemaking meetings. Please submit any comments you have about the issues to be negotiated to policy@nasfaa.org
