New Year, New Neg Reg: Institutional and Programmatic Eligibility Committee Dives into Ability to Benefit and Administrative Capability

By Hugh T. Ferguson, NASFAA Managing Editor

By Owen Daugherty and Hugh T. Ferguson, NASFAA Staff Reporters 

The Department of Education’s (ED) Institutional and Programmatic Eligibility Committee convened Tuesday for the first of four days, as the negotiated rulemaking group aims to reach consensus on regulatory language for seven different topics, with gainful employment, the 90/10 rule, and administrative capability headlining the slate.

Following a welcome from ED Under Secretary James Kvaal, the committee went through introductions for each committee member and agreed on the protocols that will be in place for the session.

Facilitators reiterated that the intent of the committee was to engage in good faith and strive for collective problem-solving on the host of issues. As was the case in the last session held in December, negotiators were told the committee would take an issue-by-issue approach to reaching consensus and that this session’s consensus checks would only be met if no thumbs were recorded as down, which would indicate that a negotiator had serious reservations.

Before diving into the first issue paper, there were requests for two additional members to be added to the committee. First, Johnson Tyler, a negotiator on behalf of the legal assistance organizations that represent students or borrowers, asked that a civil rights seat be added to the table, arguing that it should be its own entity and is separate from legal aid.

He nominated Amanda Martinez from UnidosUS, who was confirmed as a member by the full committee.

Brad Adams, a negotiator on behalf of proprietary institutions, proposed adding a representative to the committee on behalf of proprietary institutions that enroll less than 450 students. His request did not reach consensus and the additional member was not added.

Negotiators then moved on to the first issue paper on the agenda covering ability to benefit (ATB), which allows students to be eligible for Title IV aid without a high school degree or equivalent for certain programs.

Greg Martin, a federal negotiator, said ED has some concerns within current regulations that allow an institution to claim to offer a program that is an  Eligible Career Pathway Program (ECPP), but that doesn’t meet the ECPP criteria and only seeks to take advantage of the ATB exception to Title IV eligibility.

The first temperature check on the issue was on the definition that negotiators had discussed for an ECPP, which resulted in a positive temperature check. The committee then discussed the definition for student eligibility as it relates to ATB, again having confirmed a positive temperature check.

Following their first break, the committee returned to discussions concerning the ATB issue paper and raised some technical questions, requesting that ED in some instances make the language more explicit. Ultimately, a positive temperature check was recorded with no member offering a thumbs down on the section.

In covering sections concerning the approval of state processes for an initial period of two years, some members expressed an interest in changing the two-year period to five years, and debated the difficult balance of the need to regulate the state process against the fact that there is no data by which to measure state processes during the two-year provisional approval period.

William Durden, representing two-year public institutions of higher education, underscored that there was a need for high quality metrics and that the committee should work to help establish a baseline, noting that setting upfront metric targets may be premature given the small number of states with currently approved state processes for demonstrating ATB.

Part of this conversation prompted ED to solicit recommendations for additional metrics that would measure student success in the approved state process. At the conclusion of the section, a positive temperature check was recorded with no thumbs down and ED representatives indicating that they knew that this section will incorporate feedback as the committee work moves forward.

The committee then moved on to concluding the issue paper by going through the definition for “Eligible Career Pathway Program.” ED highlighted that while the language would be new to regulation, the definition was drawn from statute.

David Socolow, a representative on behalf of state higher education executive officers, state authorizing agencies, and/or state regulators of institutions of higher education and/or loan servicers, commended the department on the paper, but said that some sections needed to be further tightened with clearer definitions.

The group recorded a negative temperature check, with Socolow as the only  thumbs down. Socolow said he would submit specific language to build on, and reiterated that he thought the language proposed by ED was a good start, but that he could not approve right now.

The conversation then moved to the standards of administrative capability paper, with ED outlining some compliance concerns from schools that do not provide adequate career services to eligible students who receive Title IV aid, and sought regulation to ensure institutions provide clearer career services.

Marvin Smith FAAC®, representing four-year public institutions of higher education, underscored that any type of regulation has costs, and expressed concern over how the regulation regarding “​​adequate career services to eligible students,” could burden large institutions if too prescriptive, but noting conversely that y if the regulations are not clear they could cause confusion for how institutions would be required to comply with vague guidelines from ED. In working on the language, Smith urged ED to not create new regulatory burdens that could create additional costs for both institutions that would be passed on to students.

ED indicated that the intent in the regulation was not to add increased burden to schools, but instead to target programs that were promising prospective students career guidance that falsely advertised their capabilities.

Jamienne Studley, representing accrediting agencies noted her support for ED’s goal of going after institutions that promise career services or externship placements and don’t deliver. However, she registered concern over the direction ED is headed with the regulations to focus on inputs, in terms of resources dedicated to career services and externship placement, whereas ED’s focus has always been on outputs- the success of those efforts.

Conversation on this section ended with the committee recording a negative temperature check, as multiple representatives held a thumbs down.

The committee then moved to public comments, where speakers covered a range of issues related to program eligibility. Commentators shared their experiences with the Public Service Loan Forgiveness (PSLF) program, suggestions on gainful employment, racial equity, veteran experience with specific predatory institutions that targeted their benefits, and adult higher education learners.

On Wednesday, the committee will return to the standards of administrative capability issue paper and is expected to consider another member nomination at the start of the session.

Stay tuned to NASFAA’s Today’s News for more coverage of negotiated rulemaking sessions throughout the week, and read up on our previous rulemaking coverage


Publication Date: 1/19/2022

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