Final Session of Negotiated Rulemaking for Programmatic Eligibility Committee Kicks Off With Goals of Reaching Consensus

By Hugh T. Ferguson, NASFAA Senior Staff Reporter

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

The third and final session of the Institutional and Programmatic Eligibility negotiated rulemaking committee began Monday, as committee members were reminded that their goal this week is to reach consensus on seven different topics, with the Department of Education (ED) presenting final drafted papers containing regulatory language for each.

Unlike previous sessions, there will be no temperature checks on subtopics or sections throughout the week’s dialogue. Federal negotiators reminded committee members that only a single consensus check will be taken on each issue paper in an attempt to reach agreement.

Should negotiators reach consensus, ED will then use the regulatory text that was agreed upon by the committee. If they do not reach consensus, each “no” vote will require a clear articulation by the negotiator of the reason and what language they would like to see to move them to consensus.

The committee began by going through the ability to benefit (ATB) issue paper. Greg Martin, a negotiator on behalf of ED, went through the issue paper section by section, noting areas the department changed as a result of negotiator proposals and areas the department left unchanged. 

Regarding the department’s approval of a state process as an alternative to a passing score on an independently administered test or completing six postsecondary credits, William Durden, a negotiator on behalf of two-year public institutions, expressed concern that ED did not change a proposed 1% cap on enrolled students under the state process ATB standard per institution. He had suggested that ED set the 1% cap on total enrolled students in the state as opposed to by institution, noting that for small institutions 1% of enrolled students would be a very small number.

David Socolow, a negotiator for state higher education authorizing agencies, said he appreciated Durden’s suggestion and asked if a compromise could be reached, such as by using proposed language from Michael Lanouette, representing proprietary institutions of higher education, who suggested changing the cap to 1% of enrolled students or 25 students, whichever is higher.

Durden was also concerned that ED did not change language related to reapplication for state process approval after the two-year initial approval period that requires institutions to demonstrate that students at each participating institution have a success rate within 95% of the success rate of students with high school diplomas. He suggested that ED change that rate to 75%.

The committee then took a break so ED could review suggestions submitted by negotiators in an attempt to make changes that could get the group to consensus.

Following the break, Martin said ED had agreed to change the 1% enrollment cap to the greater of 25 students or 1% of enrolled students, but declined to change the success rate metric from 95% to 75%.

A consensus check was taken on the ability to benefit issue paper and a consensus was not reached, as Durden reiterated his concerns that prevented him from voting in support of consensus. While he indicated willingness to compromise at 85%, ED indicated they had gone as far as they were willing to go on the issue.

Before the lunch break, Martin dove into the standards of administrative capability issue paper, outlining recent changes made by the department reflecting feedback from the previous negotiating sessions.

Samantha Veeder, a negotiator on behalf of financial aid offices and a NASFAA member, asked about language ED added since the second negotiating session related to disclosing the nature of aid offered, whether it must be repaid, and deadlines for accepting, declining, or adjusting the aid. 

She specifically called out the deadline language, noting that many institutions use a passive confirmation process without deadlines. “This just adds an unnecessary hurdle,” she said. “It adds opportunity for confusion and might discourage some students who might think they missed a deadline and not realize that there could be some flexibility in the deadline.”

Martin noted that these requirements are already in other places in the regulation, adding that the department is only asking institutions to inform students of whatever deadlines that might be in place for accepting aid, not asking them to add deadlines.

The committee continued with its walkthrough portion of the standards of administrative capability issue paper, which ranged from minor technical changes, to addressing discussions from previous sessions, as well as including more nuanced descriptions to help respond to concerns from negotiators.

Several negotiators raised concerns over ED’s retention of language proposed in the first and second negotiating sessions related to a condition of administrative capability being that institutions provide “adequate career services.” Since the first week of discussions, negotiators have pushed back on the department to either be more clear or to abandon the language altogether.

Brad Adams, representing proprietary institutions of higher education, reiterated concerns he has raised in each of the prior two weeks of discussions related to proposed language tying administrative capability to misrepresentation and aggressive recruiting. Adams requested that ED only consider an institution to not be administratively capable if the misrepresentation was significant.

In an effort to encourage consensus, ED took a brief break to discuss potential changes to the issue papers. In resuming the session, the department provided a quick recap of revisions it made during the break.

In addressing the concern raised by Veeder, ED added “applicable” to the deadline provision to clarify that schools would not be obligated to create deadlines where none exist.

On the consensus check for the standards of administrative capability issue paper, the committee did not reach consensus, due to a sole negative vote from Adams, who cited concern with the language concerning career services, and lack of definitions for the high dropout rate metric along with misrepresentation as his reasons for withholding consensus.

The committee then began walkthing through its gainful employment (GE) issue paper. After covering a few pages, and with a number of negotiators queued up for tomorrow with comments on the issue paper, the committee turned to public comment. 

During the public comment period, members of the public weighed in on issues related to GE calculations, the 90/10 rule and its impact on student veterans, financial aid offers,  and cohort default rates, along with student experiences with a number of institutions.

The committee on Tuesday will receive a presentation from ED concerning gainful employment, including data related to the issue paper, and then continue with discussions with the aim of completing the issue paper during Tuesday’s 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: 3/15/2022

Jeff A | 3/15/2022 11:34:47 AM

This morning's session on GE demonstrates that ED's proposed language is a mess. Impossible to negotiate these regulations in the time allowed. Needs another entire week at a minimum, and some open minds.

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