The American Association of Community Colleges (AACC) filed extensive comments in response to a broad array of significant regulations proposed by the U.S. Department of Education (ED).
For community colleges, the most important facet of the proposed rules are the financial value transparency and gainful employment regulations. But the rest of the package includes potentially impactful provisions relating to institutional certification, financial responsibility and administrative capacity to administer the Higher Education Act (HEA) Title IV student aid programs; the HEA program participation agreement; and the regulations governing the conditions under which institutions may enroll students who lack a high school diploma (ability to benefit).
These regulations were the subject of negotiated rulemaking that took place in early 2022. ED plans to issue final regulations by November 1, which would allow them to take effect July 1, 2024.
AACC’s comments supported some aspects of the proposed gainful employment (GE) regulations but expressed concerns with others. The proposed rules are similar in some respects to the GE regulations promulgated by the Obama administration and later rescinded under the Trump administration. The proposed regulations, like the Obama-era rules, would judge gainful employment programs (non-degree programs and public and non-profit institutions and all programs at proprietary colleges) by whether they saddle program completers with too much student debt relative to the earnings they receive three years after completion. AACC is supportive of this debt-to-earnings (D/E) metric.
New metric proposed
The proposed regulations break new ground, however, by proposing a second metric by which GE programs would be judged. The earnings premium (EP) metric requires program completers to earn, on average, more than high school graduates aged 25-34 in the institution’s state. AACC opposed this new measure because there are several legitimate reasons why earnings may be lower than this benchmark in a particular area, including significant variation in wages within a state. If the metric is to remain in the final rule, the association proposed a modification that would adjust the earnings threshold down by 20% in high poverty areas.
AACC’s comments stressed that, while very few community college programs would fail the GE metrics according to ED projections, the regulations will impose a tremendous compliance burden on institutions, especially in the first year they are in effect.
GE programs would lose Title IV eligibility if it failed the D/E or EP metric in two out of three consecutive years. While not subject to loss of Title IV, the metrics would also be calculated for all programs at all Title IV institutions for the purpose of disclosing this information on a new ED website. The final contents of that website will be announced in a future Federal Register announcement, but the proposed regulations listed several possible data elements in addition to the GE metrics. AACC has long been supportive of disclosing outcomes for all programs, but urged ED to be mindful of institutional burden and the value of the information being disclosed to students and others who will use it.
Other new provisions
In other areas of the regulatory package, ED assumes new authority and imposes new requirements that, in AACC’s view, are unwarranted and, in some cases, exceed ED’s statutory authority. Perhaps the starkest example of this is new “supplementary performance measures” that would be added to the regulation governing how ED certifies institutions to participate in the Title IV programs. This new measure would allow the education secretary to consider institutional performance in several areas – including the GE metrics, licensure pass rates, withdrawal rates and others – when deciding whether to certify an institution. No particular benchmarks or other guidelines are included in the provision.
AACC vigorously opposed this measure, arguing that it exceeded ED’s statutory authority and was extraordinarily broad and vague.
Other provisions would also be problematic, including a requirement that institutions determine whether their programs to prepare students for state-licensed or certified occupations meet the requirements of each state in which enrolled students are located. The regulations also would cap the length of these programs to the minimum number of hours of training required by the institution’s state for a given occupation (or another state’s minimum if most of the students in the program are connected to that state). The current cap is 150% of the state’s minimum hours. The same measure also contains a provision that many fear would upend the system of state reciprocity agreements for distance education programs that arose because of previous state authorization regulations. In each case, AACC urged ED to maintain the current regulations rather than adopt their proposals.
ED also would require that institutions offer “adequate career services” and timely access to clinical and externship opportunities in programs that require them as part of the determination of whether an institution is capable of administering the Title IV programs. While agreeing with ED that institutions should be doing both of these things, AACC argued that neither of these requirements are related to administering Title IV and should be struck from the final regulation.
Finally, AACC aligned with other organizations representing public institutions to oppose an addition to the financial responsibility regulations that would require public colleges and universities to provide documentation from a government entity confirming that the institution is a public institution backed by the full faith and credit of that government entity.
