By: Dan Brozovic
If you started your Independence Day holiday weekend a bit early, you may have missed this eleventh-hour notice from the U.S. Department of Education delaying certain key deadlines under the Gainful Employment rule that were set to occur on Saturday, July 1, 2017.
The Department’s notice has the following effects:
- Direct distribution of the GE disclosures and inclusion of links in promotional materials no longer required.
Starting July 1, institutions would have been required to provide each prospective student a copy of the GE disclosure template prior to enrolling. The Department’s notice delayed this requirement, at least until July 1, 2018. The longstanding requirement to include links to GE disclosures in schools’ promotional materials was also suspended until July 1, 2018.
As of now, the only remaining requirement for the GE disclosures is to provide them on the school’s website. As a reminder, schools must “provide the disclosure template for [each GE] program or a prominent, readily accessible, clear, conspicuous, and direct link to the disclosure template for that program” “[o]n any Web page containing academic, cost, financial aid, or admissions information about [the] GE program maintained by or on behalf of an institution.” See 34 C.F.R. § 668.412(c).
Also, the disclosures must now appear on the Department’s new template. The application for generating the new template, and a Quick Start Guide with technical assistance, can be found at: https://www2.ed.gov/policy/highered/reg/hearulemaking/2009/negreg-summerfall.html.
- Alternate earnings appeal deadline—previously July 1—extended indefinitely.
In addition, the Department’s action seizes on a recent ruling by the U.S. District Court for the District of Columbia, which requires the Department to provide extra time and other relief to members of the American Association of Cosmetology Schools (AACS) in submitting alternate earnings appeals of their final debt-to-earnings rates. The Department said it will accordingly extend the deadline for all institutions, as will be outlined in a subsequent Federal Register notice it anticipates issuing within 30 days.
While it remains to be seen exactly what this subsequent Federal Register notice will say, some salient language from the District Court’s order suggests that the deadline will be extended for a reasonable period and the requirement to issue student warnings will be delayed accordingly for programs with pending appeals. Among other things, the Court said: 1) “the DOE shall reasonably extend the deadline for AACS member schools to file alternate earning appeals”; 2) “the DOE shall reopen the alternate-earnings appeal process for any AACS member schools who failed to timely submit notice of alternate earnings appeal”; and 3) the “DOE shall not require AACS member schools who failed to timely submit notice of alternate earnings appeal under 34 C.F.R. § 668.406 to post warnings as required by 34 C.F.R. § 668.410(a) until the new deadline for alternate earnings appeal has passed.”
- Schools that previously filed a “notice of intent” to appeal continue to see suspended warning requirements.
Schools that filed a notice of intent to make an alternate earnings appeal for programs with failing debt-to-earnings rates were not required to provide the student warnings that would otherwise be required, with the expectation that the schools would file complete appeal packages with the Department by July 1, 2017. Schools unable to submit a complete appeal by the July 1 deadline would have had to start issuing warnings as of that date. Now that the July 1 deadline for appeals has been extended, the warning requirements will remain forestalled for all programs already covered by a notice of intent to appeal.
The Department’s notice does not mention any immediate relief for schools that did not file a notice of intent to appeal (originally due in January), but such relief may be coming. For schools in this position wishing to appeal, the safest thing to do is continue providing the warnings, unless and until the Department gives them a new opportunity to file a notice of intent.
The Department is also requesting public comment on this action. Comments may be submitted between now and August 4, 2017. Submitting comments is a great way to get your voice heard, and we stand ready to assist in drafting any comments you wish to submit.
The Powers Education team has followed the Gainful Employment rule closely since its inception, and will stay engaged as this latest development unfolds. Stayed tuned, and don’t hesitate to contact us if you have any questions.
Dan Brozovic (Dan.Brozovic@PowersLaw.com; Phone 202-349-4250)
Sherry Gray (Sherry.Gray@PowersLaw.com; Phone 202-872-6778)
Stanley Freeman (Stan.Freeman@PowersLaw.com; Phone 202-872-6757)
Joel Rudnick (Joel.Rudnick@PowersLaw.com; Phone 202-872-6763)