ED Adjusts Deadlines for Alternate Earnings Appeals Under Gainful Employment

Colleges will now have until February 2018 to file appeals of their graduates’ earnings data under the gainful employment (GE) rule, according to an announcement released by the Department of Education (ED) on Thursday.
Back in June, ED announced its intent to renegotiate part of the Obama-era GE regulations, as well as the regulations on borrower defense to repayment (DTR), because during the implementation process "it became clear that, as written, it is overly burdensome and confusing for institutions of higher education." During a public hearing in July, ED officials heard comments from higher education advocates, leaders, and practitioners on the GE and DTR regulations, ED's decision to delay implementing certain aspects of the rules, and what additional topics ED should consider during the upcoming negotiated rulemaking.
The Department has also made several changes to original deadlines for certain parts of the GE regulations. For example, in July, ED announced in the Federal Register that it is allowing additional time, until July 1, 2018, for institutions to comply with certain disclosure requirements in the GE regulations.
Regarding the deadlines around filing alternative earnings appeals, ED in March announced there would be a delay in the timeline to submit an alternative appeals notice, moving the deadline to file an appeal by March 20, 2017, to a deadline for submitting final documentation for an appeal by July 1, 2017. The original deadline to submit a notice of intent to appeal—Jan. 23, 2017—was not changed at the time of the March announcement.
But now, both deadlines have been moved forward by the Department. 
According to yesterday’s announcement, institutions will now have until Oct. 6, 2017, to submit a notice of intent to file an alternate earnings appeal, and will have until Feb. 1, 2018, to submit the appeal and necessary documentation. Institutions that have already submitted a notice of intent to appeal or an alternate earnings appeal do not need to resubmit, and those that would like to supplement their appeal should contact ED staff on or before Oct. 6. 
ED will also scrap a requirement that institutions that use a survey to measure graduates’ earnings meet a minimum response rate of all students not exempted under the rule, or a 50 percent response rate. Instead, ED will “evaluate all graduate surveys, regardless of response rate, provided the submissions include the number of responses, the response rate, and a nonresponse bias analysis, as well as any other information the Department requests,” according to the announcement. 
ED will also not enforce the rule that earnings data must be obtained on 50 percent of non-excluded graduates  when the school relies on data from state-sponsored data systems for alternate earnings appeals, nor the requirement that the number of students included must be 30 or more. Instead, it will consider the validity of such data on a case-by-case basis, “taking into account the response rate and other information requested by the [s]ecretary” of education, according to the announcement.
Institutions intending to file a notice of intent to appeal by the October 6 deadline do not have to issue warnings to students under 668.401(a) unless they fail to timely submit an alternate earnings appeal or the appeal is resolved. 
The changes outlined in the announcement are in response to a federal court order from June that required ED give more time and flexibility to for-profit cosmetology programs to appeal the earnings data of their graduates. The judge’s order applied only to member institutions of the American Association of Cosmetology Schools, but ED decided to establish the new deadlines for all GE programs due to the court’s “concerns with the response threshold required for the graduate surveys used for all programs in the alternate earnings appeal,” according to the announcement.
“In modifying the alternate appeals submission requirements, the Department seeks to reduce the burden on institutions in conducting these appeals while still ensuring that institutions provide enough information for the Department to determine whether the program graduates for whom alternate earnings data re provided are a valid representation of the overall cohort,” the announcement said.


Publication Date: 8/18/2017

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