Washington Watch: Critical negotiated rulemaking sessions start

The U.S. Education Department (ED) last Friday concluded the first of three one-week negotiated rulemaking (“neg reg”) sessions of the Committee on Institutional and Programmatic Eligibility for the Title IV student aid programs Negotiated Rulemaking for Higher Education 2020-21

The committee is developing regulations on seven issues:

  • Administrative capability
  • Ability-to-benefit
  • Gainful employment
  • Financial responsibility
  • Changes in Ownership
  • Certification Procedures
  • 90-10 (applies only to for-profit institutions)

Community colleges are represented by primary negotiator Anne Kress, president of Northern Virginia Community College and a member of the American Association of Community Colleges (AACC) board of directors, and Will Durden, director of basic education for adults at Washington State Board for Community and Technical Colleges. AACC nominated Kress, which means that, under the protocols of the negotiations, the association is limited in the comments it can make concerning the discussions. This article is simply an account of the first week’s negotiations, which were conducted virtually.

Gainful employment

For community colleges, gainful employment (GE) is by far the most important issue on the table, since it determines eligibility for all community college certificate programs that otherwise qualify for federal student aid. (The provision applies to all Title IV-eligible certificate programs generally, including those offered by graduate and professional schools.)  Previous regulations involved extensive reporting and disclosure requirements as well. 

The GE issue was the only one on which ED did not provide draft regulations in advance of the negotiating sessions, but rather posed a series of questions to negotiators about various features of the rules. These included which eligibility metrics to use, how to apply them and how long colleges should have to meet the metrics. 

Several negotiators expressed strong support for the final 2014 GE regulations, which were later rescinded by the Trump administration. The primary eligibility metric in that scheme was a debt-to-earnings calculation that had a limited negative impact on community college programs’ eligibility because of the sector’s low borrowing volume.

However, some commenters also expressed support for positions that significantly diverged from the previous rules with which many community college administrators were familiar.  These included requiring all GE programs to display earnings greater than high school graduates and incorporating as part of the GE metrics the earnings of non-completers. 

Much more will be known about the shape of the negotiations once ED provides draft regulatory language, which is expected before the next sessions.

Ability-to-benefit state plans

A big item for community colleges in the ability-to-benefit discussions are standards that ED will use in approving state plans for ability-to-benefit (ATB) students, i.e., those who lack a high school diploma or GED and are enrolled in eligible career pathways programs (ECCPs).  Under the statute, states may submit plans to make all ATB students eligible, subject to secretarial approval — otherwise students must pass an approved test or accrue six credits before they can receive federal Title IV aid. 

In all cases, students must enroll in ECCPs. For its approval of state plans, ED is proposing to eliminate the current standard that ATB completers have at least a 95% success rate compared to those with a high school diploma and replacing it with other standards.  Community college negotiators plan to suggest a different approach that will be discussed at the next negotiating sessions. 

ED is also focused on ensuring that all potentially eligible ECCPs meet the statutory standard. The definition used here has been taken from the Workforce Innovation and Opportunity Act. Within the community college sector, AACC is not aware of programs that are inconsistent with this definition.

Administrative capability

Another key issue for community colleges concerns the specific “administrative capability” standards that colleges must meet to be approved for Title IV. ED has proposed an entirely new criterion that institutions must meet, i.e., providing adequate career services for students, with a focus on those enrolled in gainful employment programs. (Title IV regulations also include a standard related to minimum staffing in student financial aid offices.) 

As with all regulation, the devil is in the details, and community college negotiators will be particularly focused on these details; a one-size-fits-all federal standard in this type of administrative support could play out very differently across the broad array of institutions. 

What’s next

The next round of negotiations will take place February 14-18, and the final round is March 14-18. At that time, final consensus will be sought on each of the seven issues. If there is no consensus on an item, ED can craft a Notice of Proposed Rulemaking (NPRM) as it sees fit, observing the standard regulatory process. If there is consensus, ED is generally required to issue a proposed rule consistent with the agreement reached at the negotiation table. 

Stay tuned!

About the Author

David Baime
David Baime is senior vice president for government relations at the American Association of Community Colleges.