Community College Proposals for Negotiated Rulemaking Session 3

Issue Paper 1: Ability-to-Benefit

1) Definition of a Career Pathways Program

Community colleges strongly oppose imposing any further regulatory elaborations or restrictions on the 

congressional definition of an eligible career pathway program (ECCP). At community colleges, career 

pathway programs are designed, in part, to facilitate the attainment of postsecondary credentials for 

those who do not have a high school diploma and do not necessarily need or want one. Altering the 

statutory ECCP definition through regulation, in a manner clearly not anticipated by Congress, 

represents substantial regulatory overreach and exceeds the Department of Education’s (ED) statutory 

authority. The General Education Provisions Act prohibits ED from “exercising any direction, supervision, 

or control over the curriculum, program of instruction, administration or personnel and any educational 

institution ... except to the extent authorized by law.” 

For these reasons, we strongly oppose the additional regulatory language proposed in Subsection 

668.157 that extends beyond the statutory language and oppose any additional requirements. 

Consequently, 668.157 should be deleted, leaving only the ECCP definition in 668.2(b) that adheres to 

the statutory definition. 

2) Limitation on the Percentage of Eligible ATB Students Under State Plans

As noted in the negotiating sessions, the 1% cap on ATB enrollments for the first two years of a state 

plan should be applied across the state’s public postsecondary institutions, not individual colleges—this 

is a state plan. Under ED’s proposal, a particular institution might be prohibited from offering a highquality career pathways program to more than this de minimis level, while other institutions in the state 

would choose not to participate. It also must be remembered that because this is a state plan, most 

instances will involve the considerable expenditure of state resources to serve these same students, and 

thus includes an inherent level of quality control. Therefore, the language in Subsection 668.156(b)(3) 

should read:

“The total number of students who could potentially qualify under a plan should be limited to one 

percent of the total enrollment in a state’s public institutions of higher education.”

3) Standards for Approval of State ATB Plans

Community colleges oppose the imposition of quantitative standards on state ATB plans, but the 

statutory reference makes implementation of this nature a route ED may opt to take. ED has proposed a 

“success rate” of 95% for ATB students, compared to their high school graduate or equivalent 

counterparts; but this standard is overly stringent and can only serve to deny access to the career 

pathways programs that Congress has envisioned. The 95% standard has been in regulation for more 

than 20 years, and a clear effect of this has been to discourage the development of state plans. 
Therefore, if ED chooses to use this “success rate” as a basis for the approval of state plans, the rate 

should be set at 85% of that of high school graduates or equivalents. 

Th 85% success rate reflects differences in student preparation while ensuring a high element of “quality 

control” in the program—which is arguably overly stringent, given the fact that completion rates often 

obscure community college successes and that Congress has recently reaffirmed its intent in making the 

state plan a viable path to Title IV participation for impacted students. Community colleges, working 

with state entities, have no interest in manipulating the state plan to enroll students in programs from 

which they are not likely to benefit. However, in the spirt of compromise, community colleges propose 

that ATB enrollees should be required to meet a success rate of 85%, as in modified Subsection (e)(1):

(1) Demonstrate that the students it admits under that process have a success rate as determined under 

paragraph (e) of this section that is within 85 percent of the success rate of students with high school 

diplomas;

Issue Paper #2: Standards of Administrative Capability

1) Career Services

Community colleges continue to be concerned about the newly introduced concept of “adequate career 

services” into Section 6 of the regulations. The application of the term “adequate” in practice would be 

inherently subjective. The analogy to regulatory requirements relating to adequate student financial aid 

services is weak because student aid administration involves specific federal programs with specific 

regulatory requirements. This is not to state that career services are unimportant; they just do not 

logically fall under Title IV’s purview. 

If ED now chooses to regulate the provision of “career services,” these services should be required of 

the thousands of programs that manifestly prepare students for employment and that fall well outside 

the narrow scope of gainful employment (at non-profit institutions). In fact, students across higher 

education programs and sectors continue to state that their primary reason for attending college is to 

increase their employment prospects. Therefore, this reference in Subsection 668.16(h)(3)(i)(1) is 

inappropriate and should be deleted:

(1) The share of students enrolled in programs designed to prepare students for gainful 

employment in a recognized occupation;

2) Student Information

Community colleges support providing additional information to students about the financial aid process 

and their options, as well as other potential sources of student supports by modifying Sec. 668.16(h)(3) 

and adding Sec. 668.16(h)(4) and (5) as follows:

(3) The rights and responsibilities of the student with respect to enrollment at the institution and 

receipt of financial aid. This information includes the institution's refund policy, the requirements 

for the treatment of title IV, HEA program funds when a student withdraws under § 668.22, its 

standards of satisfactory progress, methods by which the student may apply for professional 
judgment; and other conditions that may alter the student's aid package.

(4) That federal student loans provided under Title IV, HEA have terms that are generally more 

favorable than private education loans; and

(5) Provides information to students who apply for Title IV, HEA program assistance on federal 

public benefit programs, and other sources of federal financial assistance, that can help meet any 

component of the student’s cost of attendance

Issue Paper #3: Gainful Employment

1) Additional Metrics Beyond Debt-to-Earnings

Community colleges strongly oppose using any metrics beyond the debt-to-earnings measure for gainful 

employment program eligibility for the following reasons:

1) Students should be encouraged to enroll in GE programs in which minimal or no debt is required

to finance their studies. This policy would be achieved by adoption of the 2014 debt-to-earnings 

framework, as modified by ED in its current proposals. Fortunately, in recent years, student 

borrowing has steadily decreased across all sectors. The 2014 regulations appropriately focused 

on keeping students clear of unmanageable debt, and community colleges continue to strongly 

support this approach. Additional metrics are neither necessary nor desirable.

2) As has been pointed out in the negotiating sessions, uniform national standards do not and

cannot reflect the tremendous variation across the country in wages and earnings experienced

by completers in GE programs. Trying to craft a fair, uniform national standard is not possible 

and might ultimately prevent some individuals from enrolling in a low-cost community college 

program.

3) An additional eligibility measure will confuse students and the public. It will also make planning 

more difficult for campus officials because of the need to take the multiplicity of measures into 

consideration in developing and implementing programs.

2) Development of Debt-to-Earnings Measures and Related Reporting

Community colleges continue to strongly support uniform programmatic reporting and related 

outcomes data and disclosures for all Title IV-eligible programs, regardless of whether they are subject 

to gainful employment regulation. Comprehensive disclosures are equally beneficial to all stakeholders,

and there is no logical reason to limit disclosures to GE programs. In fact, at non-profit institutions, far 

more debt is accrued by students in non-GE programs than those enrolled in GE programs, providing

another compelling reason for their inclusion. Hopefully, all the data generated through the programfocused framework will be integrated into ED’s College Scorecard. 

The GE statute makes no reference to disclosures and requiring them is—and always has been—a

strictly administrative choice made by ED. Including all programs at all institutions in a common 

disclosure framework is not only equitable, but by virtue of its comprehensive nature, it will foster more

effective implementation by both the Executive Branch and institutions. Community college officials

recoiled at the more than 100 communications sent by ED in its implementation of the 2014 GE rules

(particularly its reporting and disclosure requirements) reflecting its complex, almost Byzantine nature. 
A holistic, straightforward pan-higher education approach to this core element of its implementation

should result in more efficient GE rule. 

In the negotiating sessions, comments have been made about the challenges of determining what 

should constitute a specific “program” for reporting and disclosure purposes, and related to that, what 

would provide the most helpful aggregation of information for stakeholders. It should be remembered 

that all students must be enrolled in a Title IV eligible program to receive aid. Nonetheless, community 

college students often take circuitous paths to attaining a certificate or degree, which adds to the 

complexity of meshing reporting requirements with actual academic progress. These issues are 

important, but they do not diminish the much larger benefit provided by displaying programmatic 

information across higher education. 

Therefore, community colleges propose modifying Subsection 668.43(d)(1) to make the “may” a “must,” 

as follows:

(1) Disclosure website. An institution must provide such information as the Secretary prescribes 

through a Federal Register notice for disclosure to prospective and enrolled students through a 

website established and maintained by the Secretary. The Secretary will conduct consumer 

testing to inform the design of the website. The Secretary may must include on the website, 

among other disclosures: 

3) Implementation Safe Harbor

As referenced above, earlier implementation of GE was extraordinarily costly and problematic for 

community colleges. Unfortunately, these implementation issues were overshadowed by controversy 

over the metrics themselves. 

Community colleges commend ED for recognizing the difficulties entailed in GE compliance, reflected in 

Section 668.408(b)(2). This is particularly important given the extensive retroactive application of the GE 

framework—requiring years of retrospective data. Although this retrospective requirement places a 

tremendous burden on community colleges, we will not oppose it, but it must be coupled with policies 

that reflect the administrative realities that will accompany its implementation. Therefore, we propose 

the addition of the following language to the end of subsection 668.408(b)(2):

“If the Secretary rejects the institution’s explanation, the Secretary must specify the reasons why it 

determines that the institution’s explanation has not been accepted.”

4) Supplementary Performance Measures

These measures in subsection 668.409 either fall outside the statutory scope of the gainful employment 

authority or are redundant with it and should be deleted. The entire subsection should be taken out of 

the regulation.