Washington Watch: AACC comments on ED’s reg plan for Pell for prisoner ed

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The American Association of Community Colleges (AACC) has submitted formal regulatory comments on the Department of Education’s Notice of Proposed Rulemaking (NPRM) on new Pell Grant eligibility for prisoners, which takes effect next July 1. 

After an almost 30-year hiatus, incarcerated students will again become eligible for Pell support. As AACC’s comments state: “The social, economic, and human benefits of prison education have long been apparent. AACC consistently advocated for restoration of prisoner Pell Grant eligibility since its elimination in 1994, and community college officials were elated by the new program established in the Consolidated Appropriations Act of 2021.”

The NPRM was the product of consensus during the negotiated rulemaking process in late 2021. This meant that the Education Department (ED) was required to issue a proposed rule that reflected the consensus.  Under the “master calendar” that governs federal student aid regulations, ED must have a final rule in place by November 1, 2022, for it to take effect next July.  

The role of oversight entities

A central focus of AACC’s comments was on the role that “oversight entities” — such as state corrections agencies or the Federal Bureau of Prisons — play in approving prisoner education programs (PEP). While these entities (called OEs) are clearly essential to the operation of prison education programs and must approve them under the new law (not to mention current practice), AACC has concerns with the department’s NPRM in this area. Specifically, AACC opposes the NPRM’s general requirement that oversight entities develop and apply quantitative or similar criteria in making their determination of whether the program is in “best interest” of incarcerated individuals and thus should be approved. These quantitative or similar standards are not specifically required by the statute; the law simply says that the oversight entity “may” consider a variety of variables in making its “best interest” assessment.

For example, NPRM directs OEs to determine whether the earnings of the relevant individuals exceed those of a typical high school graduate in the state. This is not in the law. The regulations also would require OEs to state a threshold standard rate of continuing education post-release, another policy that AACC doesn’t support. In addition, the regulations direct OEs to require prison education programs to supply placement rates, and possibly even set standards for placement. 

AACC has requested that PEPs be approved for a four-year period before they undergo the more comprehensive review by the oversight agencies. The NPRM allows for just two years, which AACC does not believe is sufficient time to establish programs and generate meaningful data on PEPs, and then include the information in the OE process, which in turn must be done in advance of an institution applying to ED for continued eligibility. 

AACC has also asked that in the final rule ED develop an appeals process that would provide institutions with a second review of their program approval application.

There is no guarantee that any of AACC’s comments will be reflected in the final rule, which is due in just over two months. Some of the other major commenters did submit views that parallel those of AACC.

Broader questions

But whatever the specific outcome of the regulatory process, it seems likely that the most meaningful action over the coming months will occur far outside of Washington.  Some of the looming questions include:

  • How many community colleges will attempt to offer new prison programs now that Pell Grant eligibility has been provided? There was a sharp drop in them following the 1994 eligibility, but will the reverse prove to be the case?
  • How will programs currently offered in prison facilities be integrated into the Pell Grant framework, and how many will be kept separate?
  • How will state corrections agencies incorporate into their activities whatever processes and standards ED ultimately charges them with, in making their “best interest” determinations?  How well will these entities work with other parties, from whom they must take input?
  • How much competition will emerge between institutions to offer prison education programs, even though for-profit institutions cannot participate? This appears to be a real possibility. 

In any case, AACC will closely monitor the outcome on the current rulemaking process and the resulting participation of its member colleges. AACC welcomes the views of its members in this general area. The association also thanks the colleges that provided input into the development of AACC’s comments. This input made our comments much stronger.

About the Author

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