DOD's MOU, NSLDS, Gainful Employment, and Program Integrity

June 4, 2014

Greetings- It seems to be feast or famine in the legislative and regulatory arena here in Washington, DC, and after a period of somewhat quiet we have had a number of issues requiring our attention.

The long awaited Department of Defense MOU: The DoD released its final rules for participation in the Tuition Assistance (TA) Program after having announced plans in August of 2013 to introduce more components of the President's Principles of Excellence. AACRAO and other organizations provided comments to the Department in response to the draft rules. To their credit, the Department appears to have done a good job in evaluating these comments and made a number of adjustments to the final rules. One change included a more specific acknowledgment of the use of degree audits for the purpose of providing an "evaluated educational plan," something AACRAO members cited as a concern in complying with the new rules. AACRAO has advised campuses who wish to participate in the TA Program to sign on to the new MOU before the July 14, 2014 deadline.

New NSLDS reporting requirements: In response to legislative mandates, the Education Department in late February released new National Student Loan Data System reporting requirements related to the 150% subsidized Direct Loan eligibility provisions. Some of the new reporting requirements were to go into effect in mid-April with the remainder due July 1. AACRAO, with the support of the National Association of Financial Aid Administrators (NASFAA) and the American Council of Education (ACE), initiated a letter to the Department objecting to the short implementation timeline and the Department announced that the deadline would be extended until October 1 although reporting under the new requirements would be retroactive to July 1.

Representatives from AACRAO and NASFAA were invited to a meeting with the Department to discuss the new NSLDS reporting requirements. Many thanks to AACRAO President Brad Myers who led the AACRAO delegation and the AACRAO member team who joined him on short notice. We hope to have further guidance and clarifications as a result of this meeting. Additionally, we hope this helps forge a new relationship with the Department where we can work together early in the discussion stage and help shape rules and regulations that meet the needs of Congress and the Department and best serve our students.

Gainful Employment rules: Last week was the deadline for public comments on the Education Departments new Gainful Employment Rules released in late March. AACRAO joined a number of higher education associations in expressing concerns that the new rules fall short in a number of areas, including protecting students from predatory practices, and may negatively impact institutions who serve students well. The Department appears once again to rely on excessive layers of reporting and disclosure requirements for all participating institutions as a means of sweeping up the bad actors. Not surprisingly, the Association of Private Sector Schools and Universities (APSCU) expressed what would generously be described as a "dim view" of the new rules and issued a 100 page report decrying the impacts of the new rules on students and institutions over the coming years. And 37 lawmakers signed a letter to the House Appropriations Committee urging them to block ED from enforcing the new GE rules. As the old saying goes, this could get interesting.

Negotiated Rulemaking on Program Integrity: ED chose to facilitate negotiated rulemaking on a number of issues under the umbrella heading of Program Integrity. This included several issues of importance to AACRAO members such as state authorization of online programs, credit hour to clock hour conversions, and financial aid policies for students needing to retake courses. Negotiators managed to reach tentative agreement on new standards for PLUS loans, financial aid eligibility requirements for foreign locations of America-based colleges, and clock to credit hour regulations, but failed to agree on state authorization and debit card regulations. Failing to agree on even one of the negotiated rulemaking topics now enables the Department to write the regulations for all of them.

"Negotiated" Rule Making seems to be a bit of a misnomer given the hand that the Education Department has entering the negotiations. Some critics have suggested that the Department has tended to select negotiators for NRM whose views already align with those of the Department (for the public record, I was turned down by the Department for a seat at the negotiating table for Program Integrity). I don't know if this assertion is accurate or not, but one has to wonder why the Department would seek to stack negotiations with like-minded organizations when they get to write the rules when negotiators fail to agree. If you were to enter a series of negotiations in any other arena and one party proposed such a one-sided framework it would be met with derision, but such is how rules and regulations are made here in our nation's capital.

On a final note, we are still watching to see whether there will be any significant movement on Reauthorization of the Higher Education Act (HEA) in this session of Congress. With significant retirements on the horizon- Reps. John Dingell and Henry Waxman with a combined 49 terms in Congress and Sen. Tom Harkin, chairman of the Senate Health, Education, Labor, and Pensions committee and Rep. George Miller, ranking members of the House Education and Workforce committee to name a few- and a pivotal election in the fall, it is unclear whether anything on HEA will make it out of committees much less make it through floor debates. I was reminded recently that the original Higher Education Act weighed in at a mere 51 pages. Today it sits at over 900 pages. We might look back at some point in the future and consider a HEA at 900 pages as being rather svelte. Oh for the days of yore. -Mike