Court Blocks Maximum Program Length Rule for GE Programs

By Hugh T. Ferguson, NASFAA Managing Editor

A federal judge on Friday partially halted the Department of Education's (ED) upcoming administrative capability rule slated to take effect on July 1, 2024 citing a provision that would specifically target career and technical programs.

The court imposed a temporary injunction against a provision in the rule concerning maximum program length for gainful employment (GE) programs. GE programs in the past were eligible to offer Title IV aid provided they did not exceed 150% of the minimum number of clock hours required for the occupation for which the program prepares the student by the state the institution is located.

Effective July 1, 2024, under the rules now halted by the injunction, the maximum program length would instead be capped at 100% of the state’s minimum required clock or credit hours. The final rules could result in students not qualifying for federal student aid if a program’s minimum hours exceeds those required by the state in which they operate.

Stay tuned to Today’s News for more information about the legal challenges of this and other rules  and check out NASFAA’s coverage of regulations slated to take effect on July 1.


Publication Date: 6/24/2024

Nedi G | 6/24/2024 12:40:37 PM

The injuction is only specific to this provision. Business as usual for the rest begining 7/1?

Peter G | 6/24/2024 10:11:32 AM

While not a lawyer, I find the most interesting passage to be this one:

"the Court certainly understands why the Schools saw the Bare
Minimum Rule as a bait-and-switch when compared with the scantilyarticulated NPRM. Indeed, the Schools are correct that the Department
“never relied on § 1099c-1(e)’s clock-hour authority to justify the Bare
Minimum Rule.” ECF No. 5 at 17. While the NPRM passingly referenced
its authority on a different page of the register, the Court is unaware of
case law suggesting that would suffice.
At the end of the day, had the NPRM been clearer, the notice-andcomment period would potentially look quite different. And that remains
true even though “procedural error alone is not sufficient to support a
finding of likelihood of success on the merits.” "

I think there has been fairly widespread concern with ED's use of broad, multi-issue rulemaking sessions. For one thing, as a public policy matter (regardless of one's "side") it makes it exceedingly difficult to have true "experts" at the table. The court does not address that directly, but it does tie into how ED has seemingly used the NPRM as a very loose starting point from which to wander at will.

If nothing else comes out of this case, I would love to see ED constrained to dial back to more focused, more transparent rulemaking in the future. The avalanche of rulemaking, even for those of us exempt or otherwise not impacted by parts of it, has not been healthy imo.

Peter G | 6/24/2024 10:5:30 AM

Interesting ruling. While not currently at an impacted institution, I had commented during the public comment phase that the shift from 150% to 100%, while not arbitrary in its metrics was detached from real-world curriculum design and a very radical philosophy shift. The court, very loosely, seems to have keyed on a similar observation:

"The Schools’ second and third arguments fare much better for this
element. For their second, the Schools say “the Department acted
arbitrarily and capriciously by converting a program intended to be a
safe-harbor into a strict-liability trap.” ECF No. 5 at 20. For their third,
they say the Department failed to explain its “regulatory changes to the
longstanding 150% Rule, which has been in place for 30 years.” Id. The
Schools have plausible paths to victory on both arguments. "

Susie E | 6/24/2024 8:55:36 AM

Good. 150% was reasonable and fair. When other students have to have a completion rate of 67% , it gives them 150% time frame.

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