Committee Meetings - 02/16/22 1 

DEPARTMENT OF EDUCATION

OFFICE OF POSTSECONDARY EDUCATION

INSTITUTIONAL AND PROGRAMMATIC

ELIGIBILITY COMMITTEE

SESSION 2, DAY 3, MORNING

February 16, 2022
Committee Meetings - 02/16/22 2 

PROCEEDINGS 

MS. MILLER: Good morning everyone, welcome to day 

three of session two. We have a lot to get through, so we’re 

going to jump right in with roll call. Okay, representing 

accrediting agencies, we have Ms. Jamienne Studley.

MS. STUDLEY: Good morning.

MS. MILLER: And her alternate, Dr. Laura Rasar 

King.

DR. KING: Good morning.

MS. MILLER: Good morning. Representing civil rights 

organization and consumer advocacy organizations, we have 

Ms. Carolyn Fast. 

MS. FAST: Good morning.

MS. MILLER: And her alternate, Mr. Jaylon Herbin.

MR. HERBIN: Morning.

MS. MILLER: Good morning. Representing financial 

aid administrators at postsecondary institutions, we have 

Ms. Samantha Veeder.

MS. VEEDER: Good morning, everyone.

MS. MILLER: Good morning. And her alternate, Mr. 

David Peterson.

MR. PETERSON: Morning.
Committee Meetings - 02/16/22 3 

MS. MILLER: Good morning. Representing four-year 

public institutions of higher education, we have Mr. Marvin 

Smith.

MR. SMITH: Good morning.

MS. MILLER: Good morning. And his alternate, Ms. 

Deborah Stanley.

MS. STANLEY: Good morning.

MS. MILLER: Good morning. Representing legal 

assistance organizations that represent students and/or 

borrowers, we have Mr. Johnson Tyler. Okay, Mr. Tyler is not 

with us just yet. His alternate, we have Ms. Jessica 

Ranucci.

MS. RANUCCI: Good morning. Johnson is unavailable 

this morning, so I’ll be at the table.

MS. MILLER: Okay, thank you. Representing minorityserving institutions, we have Dr. Beverly Hogan.

DR. HOGAN: Good morning, everyone.

MS. MILLER: Morning. And her alternate, miss Ashley 

Schofield. Okay, Ms. Schofield is not with us quite yet.

DR. HOGAN: She might be in and out because she had 

something to do on campus.

MS. MILLER: Thank you. Representing civil rights 

organizations, we have Ms. Amanda Martinez.

MS. AMANDA MARTINEZ: Good morning.
Committee Meetings - 02/16/22 4 

MS. MILLER: Good morning. Representing private 

nonprofit institutions of higher education, we have Ms. 

Kelli Perry.

MS. PERRY: Morning.

MS. MILLER: Good morning. And her alternate, Mr. 

Emmanual Guillory.

MR. GUILLORY: Good morning.

MS. MILLER: Good morning. Representing proprietary 

institutions of higher education. Okay, actually, let me 

skip that one for a second. Representing state attorneys 

general, we have Mr. Adam Welle.

MR. WELLE: Good morning, this is Adam. My 

alternate, Yael, she said she’s going to be a few minutes 

late.

MS. MILLER: Okay, thank you. Representing state 

higher education executive officers, state authorizing 

agencies, and/or state regulators of institutions of higher 

education and/or loan servicers, we have Ms. Debbie 

Cochrane.

MS. COCHRANE: Good morning.

MS. MILLER: Good morning. And her alternate, Mr. 

David Socolow. It seems like, oh, I think he’s entering now, 

so we’ll just jump back and have him introduce himself in a 

minute. Representing students and student loan borrowers, we 

have Mr. Ernest Ezeugo. Seems Mr. Ezeugo is not with us 

quite yet. And his alternate, Mr. Carney King.
Committee Meetings - 02/16/22 5 

MR. KING: Good morning.

MS. MILLER: Good morning. Representing two-year 

public institutions, we have Will Durden, who is in for Dr. 

Kress, who will be joining us later today.

MR. DURDEN: Yes, good morning.

MS. MILLER: Good morning. Representing U.S. 

military service members, veterans, and/or groups 

representing them, we have Mr. Travis Horr. Okay, I believe 

that his alternate Mr. Barmak Nassirian is sitting in for 

him today, is that correct?

MR. NASSIRIAN: Morning.

MS. MILLER: Good morning, thanks. And I skipped 

one, sorry about that. Representing proprietary institutions 

of higher education, we have Mr. Bradley Adams. I think 

Bradley will be joining us momentarily. And his alternate,

Mr. Michael Lanouette.

DR. LANOUETTE: Good morning.

MS. MILLER: Good morning. For our advisors, we have 

a compliance auditor with experience auditing institutions 

that participate in the Title IV, HEA programs, Mr. David 

McClintock.

MR. MCCLINTOCK: Morning, everyone.

MS. MILLER: Good morning. And we have labor 

economist or an individual with expertise in policy 

research, accountability, and/or analysis of higher 
Committee Meetings - 02/16/22 6 

education data, we have Dr. Adam Looney. Okay, seems Dr. 

Looney is not with us quite yet. And for the Department we 

have from the Office of General Counsel, Steve Finley.

MR. FINLEY: Good morning.

MS. MILLER: Good morning. And, of course, our 

federal negotiator, Gregory Martin.

MR. MARTIN: Morning.

MS. MILLER: Good morning. Did I miss anyone who 

hasn’t joined quite yet?

MR. SOCOLOW: Yeah, hi, it’s me, David Socolow, I’m 

here. Good morning,

MR. ROBERTS: And Ernest, as well, have both joined 

us.

MR. EZEUGO: Hello.

MS. MILLER: Welcome. Okay, well, we have a full day 

of jam-packed schedule. We have to be done with gainful 

employment by noon. And after lunch, we’ll jump right into 

financial responsibility. So, I ask the committee to 

remember the protocols: three minutes for comments, and 

comments that move the conversation forward. And with that, 

I will turn it over to Greg to pick up where we left off 

yesterday.

MR. MARTIN: Thank you, Rozmyn. And I’ll just wait 

for my colleague Vanessa to pull up the text, and there we 

are. So, we are in the GE issue paper, in 668 section 406, 
Committee Meetings - 02/16/22 7 

determination of the debt-to-earnings rates. So, we’re going 

to start there today, and yeah, just making sure we’re in 

the right place: 406. And so this section describes the 

determination of the program’s status based on debt-toearnings rates. Each year in which the DTE rate is 

calculated, the Department will notify the institution of 

its debt-to-earnings rate for each GE program, and for its 

small programs by credential level. We will also notify the 

institution of whether the program is passing, failing, or 

ineligible. As previously noted, we are no longer including 

a zone period. We will also notify the institution if the 

program could become ineligible in the next award year, and 

whether the institution is required to provide a student 

warning. So, you see there some of the changes. In (a)(1), 

the debt to earnings rate for each GE program and for its 

small programs, as determined under 668.404, which we 

discussed yesterday. And then in (2), you see the 

determination by the Secretary of whether each program is 

passing, failing, or ineligible, as described in 668.403. 

So, that is the entirety of section 406, so I’ll stop there 

and entertain comments at this point.

MS. MILLER: Welcome to the table, but I just want 

to mention that David Peterson will be at the table for 

financial aid administrators, and Emmanual Guillory will be 

at the table for private nonprofit institutions of higher 

education. With that, Brad, please.

MR. ADAMS: Hi, yes, you know, I missed the opening 

comments, Greg, but I just want to state for the record that 

I’m frustrated that the Department in this committee is not 
Committee Meetings - 02/16/22 8 

offering enough time to take this GE issue paper seriously. 

The fact that the Department issued its first redline on 

this issue one week ago, and we’ve got a total of four hours 

to negotiate the significance of this issue, and at best 

we’ll get one more redline and another four hours to review 

in March, is troubling. Why did the Department choose to 

slam GE into the middle of the six other important issue 

papers, when in the past two GE negotiations it created an 

entirely separate rulemaking committee for this important 

rule? The Department’s own Steve Finley said yesterday the 

Department does not have to justify or support why the 

Department has significantly changed the previous 2014 GE 

rule. Greg admitted in his opening comments that the 

committee really didn’t have enough time. The Department 

also said a few things yesterday that I didn’t appreciate, 

and several public commenters have asked if I’m sincere. The 

Department does not care about taking this negotiated 

rulemaking process seriously, which is required by a federal 

statute, and why are we even having this negotiation that I 

can think of better uses for my time? I’m concerned that the 

Department rushing this process will open it up for more 

litigation. I, along with Emmanual, would love to see the 

bad guys go out of business, but the difference is I want 

the bad ones to go out of business in all segments of higher 

education. And no one can stand here and say there are not 

bad players in all segments of higher education today. 

Imagine being in my shoes, an institution that borrowed $10 

million and spent 5 years to risk getting a low-cost 

doctorate in physical therapy program approved through a 

difficult programmatic accreditor like [inaudible]. Then, 
Committee Meetings - 02/16/22 9 

take that same figure and multiply it by four to get a 

doctorate in pharmacy, a doctorate in nursing with 

concentration CRNA, a master’s in PA approved through 

separate programmatic accreditors. If one of those programs 

comes back and fails one year of GE, including a potential 

accidental calculation error, then it’s going to leave 

hundreds of employees left without a job, millions of 

dollars investment capital wasted, and students forced to go 

to more expensive nonprofit options. Now, think what that’ll 

be across the nation. The warnings being proposed in GE will 

end programs if they fail one time. The sad part is these 

rules eliminate quality investment in other higher education 

programs. I’m sure most people saw the Wall Street Journal 

article titled Some Professional Degrees Leave Students with 

High Debt, but Without High Salaries, dated December 1, 

2021. In the article, it says NYU dental students should 

expect a total doctorate dental program to cost $570,000, 

and that NYU educates nearly 10 percent of all the dentists 

in the United States. We looked at a dental program and 

wanted five million into a dental program to get approved 

through Coda. And unfortunately, we would only have to 

charge $250,000 for that program. We didn’t go through that

investment because of GE, and that hurts student options, 

and increasing student debts for others. I’m passionate 

about this issue because I care about students, and all 

students. If this committee is serious about protecting 

students, we need more time to debate GE. We have a 

statutory authority to make these changes and go through the 

process the right way. So, I’m formally asking the 

Department to pull this gainful employment issue off of this 
Committee Meetings - 02/16/22 10

negotiated rulemaking and put it in its own process to allow

negotiators more time, just like it did in 2011 and 2014. 

That’s the only way to show that we’re giving fair issue to 

this process. Thank you.

MS. MILLER: Thank you, Brad. Any other questions? 

Marvin, I see your hand, but I’d like to acknowledge that 

Dr. Adam Looney has joined us. Marvin, please. 

MR. ADAMS: Can we have Steve respond to the request 

to move this negotiation to a separate committee, please?

MS. MILLER: Greg or the Department, did you want to 

respond to that?

MR. MARTIN: I’ll respond to that, and Steve can add 

something if he wants. Obviously, it is part of this table. 

We have no plans to remove it as part of this table. I 

understand that there may be differences of opinion as to 

whether or not there is enough time devoted to this 

particular topic. Obviously we have a very full agenda, and 

GE is part of it. At this point, I do want to make every 

effort to get through GE. The suggestion that we remove it 

from this table is not one we’ve entertained so far. 

However, I want to commit to Department to getting through 

this in the timeframe that we established and that we 

published in the Federal Register. However, I will take the 

comment back to leadership.

MR. ADAMS: At a minimum, we need another week.

MS. MILLER: Brad?
Committee Meetings - 02/16/22 11

MR. MARTIN: And I also want to let Steve comment if 

he has something additional to say.

MR. FINLEY: Yeah, Brad, thank you for the comment. 

I understand your frustration at the limited time compared 

to prior sessions on this. It’s on the table for discussion, 

and when I said yesterday we wouldn’t use this opportunity 

to explain the rationale for the proposals that are on the 

table, that doesn’t mean they won’t be explained as part of 

the formal rulemaking process. Right now, this is a chance 

to get feedback, and we appreciate the feedback you provided 

and the feedback we’re getting from others. And as Greg 

noted, your request will be discussed internally and you’ll 

get a reply. Thank you.

MS. MILLER: Thank you, Steve. Marvin.

MR. SMITH: Yeah, I wanted to talk a little bit 

about the small program rates. I think that a lot of the 

four-year publics are going to be subject to the small 

program rates because we have lots of certificate programs 

with very few student borrowers. So, I’m curious about the 

level of detail that’s going to come in this small program 

rate, because we’re not going to know the income levels of 

like a dental hygiene certificate program versus a computer 

engineering drafting certificate program. They’re all going 

to be lumped together, and we won’t have any details on the 

differences in the income and debt of these students. So, 

I’m just trying to figure out the value of what we’re 

supposed to do with the small program rate, or maybe I 

misunderstand the data that we will get.
Committee Meetings - 02/16/22 12

MR. MARTIN: Well, the reasoning behind it is to 

provide some detail about these programs that are that are 

too small to produce rates for, and there are a lot of them. 

So, if we are not doing this, we just simply let all of 

those go without any information being published about them. 

I do understand the concern that you’re going to have, you 

could have programs that are different put together by 

credential level, such as the example you gave. And I point 

out again that there are no measures, that that rate is not 

keyed into any loss of eligibility or anything like that, 

it’s simply as informational. So, our desire there was to 

produce some data for the public about the success of those 

programs.

MR. SMITH: That makes sense, thank you.

MS. MILLER: Thank you, Marvin. Brad.

MR. ADAMS: Thank you. So, in 668.406, I just want 

to point out, and it was briefly mentioned yesterday, but 

that the correction appeals process from both the 2011 and 

2014 rules have been completely removed. In the prior 

process we got data on completers, and then we were able to 

review and had an opportunity to correct. The Department 

issued the debt rates for those completers, and institutions 

got the opportunity to correct the data. Then they issued 

D/E rates, and we got the opportunity to challenge the 

accuracy of those rates through alternative appeals 

processes. These necessary processes are absent from this 

current proposal. Corrected data in turn made for more 

accurate D/E rates. We know how wrong the Department got the 

data in the 2014 process. The Department’s failure to 
Committee Meetings - 02/16/22 13

include these processes, like the omission of the 

alternative earnings appeal, represents a serious issue for 

institutions and increases the likelihood that D/E rates 

will be inaccurate or misleading. This is even more 

important given the Department has proposed eliminating the 

zone and, with the current proposed disclosure language that 

is in place, if you fail once your program is more likely 

finished. It would be terrible if a simple data error that 

was not able to be challenged ended up ending a successful 

program from being offered to students.

MS. MILLER: Thank you. Other questions, other 

questions? Okay, I don’t see any other, Brad, is your hand 

up again?

MR. ADAMS: It is. One other point in this section:

I want to offer a thought of a safe harbor here, as a 

process for appealing the draft D/E rates. We propose the 

Department perform an alternative safe harbor D/E rate 

calculation at the 8-digit OPEID level for any program at 

the 6 OPEID level that failed this D/E rate. This would 

permit the Department to assess and institutions to 

discriminate. While a D/E rate that was calculated for a 

program across all locations and markets might be failing, 

the D/E rate for programs in specific locations and markets 

may be passing. Critically, this would allow for successful 

programs to avoid becoming collateral damage, especially 

given the push to group programs together at the four-digit

SIP code. Further calculations and related disclosures that 

are based on individual locations will be more meaningful to 

the students attending those locations, and more accurately 
Committee Meetings - 02/16/22 14

reflect the quality of instruction, operational cost, 

employer demand, and market characteristics of that 

student’s specific campus. We highlight that because the 

Department has already the ability to gather and calculate 

data at the 8-digit OPEID level, and there are no system 

limitations that should inhibit the efficient calculation of 

location-specific alternative rates.

MS. MILLER: Thank you, Brad. You can submit that 

proposal to Cindy and we’ll pass it on to the Department. 

Other questions? Okay, I don’t see any other hands. Greg, 

are we okay to move on?

MR. MARTIN: Yeah, we could take a temperature check 

for 406 before we move on to 407.

MS. MILLER: Okay. Brad?

MR. ADAMS: Yeah, just real quick, I just want to 

make the comment that it seems like we’re just pushing this 

along. I’m making comments and no response from anyone in 

the Department. I would just appreciate Greg or somebody to 

respond to these proposals.

MR. MARTIN: Well, we did address yesterday the 

Department’s reason for not including the earnings appeal. I 

don’t have anything else to add to that, Brad, beyond what I 

said yesterday, so it doesn’t do any good to be redundant of 

the reasoning I gave yesterday. Obviously, some people will 

not agree with that. I don’t know that my speaking to it 

again today will change that. As far as the data challenges 

go, we did indicate yesterday that we intend to use 

administrative data to the extent we can, and we will give 
Committee Meetings - 02/16/22 15

institutions time to correct that data before we use it. And 

again, we do expect that the information that institutions 

provide to us will be accurate, whether it’s information 

that is in NSLDS, COD, or information provided by the 

institution for other reporting purposes. So, beyond that, I 

think I gave the Department’s reasons for doing that 

yesterday. I don’t think that reiterating them again will 

serve any purpose. Your comments are noted, and we will take 

back your suggestion for the calculation by 8-digit CIP for 

consideration. And I thank you for offering that.

MS. MILLER: Okay, thank you, Greg. So, can we get a 

temperature check on 668.406? I need to see all thumbs high, 

please. Okay, looks like we have two thumbs down if I’m 

correct. Thank you. Greg, can we move on to the next 

section?

MR. MARTIN: Yes. Vanessa will be bringing up 

section 407, which is consequences of the D/E rates. And 

talking about the changes here, this section outlines the 

consequences for failing D/E rates. Specifically, if a 

program could become ineligible in the next year based on 

its debt-to-earnings rates. the institution must provide a 

student warning, as we propose in our disclosure 

requirements. The wording itself will be accessed through a 

Department of Education website, and this hopefully will 

remove some of the burden on institutions in monitoring the 

delivery of this warning. However, institutions will still 

be required to provide students with a warning and 

information on how to access the Department website, as well 

as the requirement that students must attest to having 
Committee Meetings - 02/16/22 16

viewed the disclosure. For enrolled students, that 

communication must include information on the student’s 

opportunity to complete, transfer, or access refunds if the 

program loses eligibility. And for prospective students, the 

institution must provide a cooling off period between the 

student completing the attestation and the institution 

enrolling the student or engaging them in a financial 

commitment. So, you see that represented there in (2), 

content of the warning. The institution must provide the 

relevant information to access the website maintained by the 

Secretary in wording as specified by the Secretary in the 

notice published in the Federal Register that the program 

has not passed the standards established by the U.S. 

Department of Education and may face restrictions.

MS. MILLER: Greg, I think you may have frozen. Is 

that just on my end?

MR. EZEUGO: I heard it too.

MR. MARTIN: Then let’s move on to... 

MS. MILLER: I’m sorry, Greg, to interrupt, I think 

you froze for a little bit.

MR. MARTIN: Oh, I’m sorry. Let me go back.

MS. MILLER: Okay.

MR. MARTIN: I’m sorry, I didn’t realize that. I 

didn’t have anything indicating here that I had a bad 

connection. Is it okay now? I appear to be coming through?

MS. MILLER: Yes.
Committee Meetings - 02/16/22 17

MR. MARTIN: Okay, good. Sorry about that. It’s just 

the vicissitudes of Zoom, I suppose. So, we were discussing 

in 407(a)(2) the content of the student warning, and I just 

wanted to direct everybody’s attention to the text there 

that the institution must provide the relevant information 

to access the website maintained by the Secretary. And then 

you see the warning, as specified by the Secretary in a 

notice that will be published in the Federal Register, that 

the program has not passed the standards established by the 

Department of Education and may face restrictions on 

enrollment, and a statement that the student must attest to 

having seen the wording through the disclosure website 

established and maintained by the Secretary. And then I want 

to move down to (5), delivery to prospective students, and 

you see here the website information reflected, an 

institution must provide the warning as required under 

paragraph (2) of this section to each prospective student, 

or to each third party acting on behalf of the prospective 

student, at the first contact about the program between the 

institution and the student or third party acting on behalf 

of the student, by hand-delivering the warning and the 

relevant information to access the website maintained by the 

Secretary, so there you see the website referenced. Again in 

(B), sending the warning and the relevant information to 

access the website. And in (C), providing warnings and the 

relevant information to access the website. And in (C) 

romanette (ii), an institution may not enroll or register or 

enter into a financial commitment with the prospective 

student with respect to the program earlier than 3 business 

days after the student completes the attestation that was 
Committee Meetings - 02/16/22 18

referenced previously. We can move down to (b), 

restrictions. This section further clarifies that an 

institution may not disperse Title IV funds once ineligible. 

They may not seek to reestablish the eligibility of a 

failing program that it discontinued for at least 3 years 

after the determination of eligibility, and ineligible 

programs remain ineligible until they are otherwise 

reestablished in accordance with the timelines in these 

rules. And there you see it reflected in (b), except as 

provided in 668.26, the institution may not disburse Title 

IV, HEA funds to students enrolled in an ineligible program, 

and the period of ineligibility is referenced there. An 

institution may not seek to reestablish the eligibility of a 

failing program that it discontinued voluntarily, either 

before or after the D/E rates are issued for that program, 

or reestablish the eligibility of a program that is 

ineligible under the D/E rates until 3 years following the 

date specified in the notice of determination following 

informing the institution of the program’s ineligibility, or 

the date the institution discontinued the failing program. 

And lastly, under (3), restoring eligibility, an ineligible 

program or failing program that an institution voluntarily 

discontinued remains ineligible until the institution 

establishes the eligibility of that program under 

668.410(c). So, I’ll stop there and entertain any comments 

or expression.

MS. MILLER: Thank you. We have Yael Shavit who has 

joined us for states attorneys general, and who is up first.
Committee Meetings - 02/16/22 19

MS. SHAVIT: Thank you. As I mentioned yesterday, I 

appreciate the importance of providing students and 

prospective students with information. I do have some 

concerns about the attestation and potential misuse of it, 

and I think it’s important for the Department to clarify. My 

concern is that such an attestation not be used to prevent 

students from accessing different relief that might be 

available to them under different Departmental regs, 

including the Borrower Defense rule or rules pertaining to 

closed school discharges. And I think this is something that 

the Department should clarify, whether it’s in the 

regulatory text itself or even just as part of the NPRM 

describing the purpose here, but I think it’s critical that 

students not be barred from accessing relief in the event 

that they’re ultimately entitled to it by virtue of having 

completed such an attestation. And I also do want to note 

that despite, I think, the well-intentioned pieces of these 

provisions, including the cooling-off period, there still 

remains very real opportunities for abuse here that I think 

are very hard for the Department actually get at, including 

a lack of access to whatever information is being provided 

by schools to students around the issue of the attestation 

and their responsibilities. And I think that’s an important 

thing to keep in mind when the Department considers what 

submission of an attestation actually means. So, this is an 

area where I think it’s important for the Department to make 

very clear that students are not going to lose rights by 

virtue of submitting an attestation.

MS. MILLER: Thank you. Will?
Committee Meetings - 02/16/22 20

MR. MARTIN: Thank you, Yael. I also want to say, 

before we move on, the intention of the attestation is not 

to prejudice the student’s access to any relief that he or 

she may be entitled to under any other provisions, the 

intent is to make certain people see it. That’s our main 

goal here. To the extent possible, I do concede that there’s 

no way to force somebody to absorb anything, but we’re 

trying to make sure to the greatest extent possible that 

students actually view it. And we’ve had problems with that 

in the past, trying to come up with a way of doing that. 

This is our best proposal now. You make some good points; 

we’ll definitely take those back, and hopefully I can 

provide some clarity about the view of how attesting to the 

warning plays into any of those other things.

MS. SHAVIT: I appreciate that, and again, I 

definitely understand and agree with where the Department’s 

motivation is here. I think my concern is twofold, one that 

institutions in the midst of their own proceedings with the 

Department of Education may try to raise the student’s 

submission of an attestation as either a defense in the 

context of a Departmental proceeding to recoup funds 

following a Borrower Defense claim, but also that, while I 

think I’m aligned with the Department’s views about this 

now, I can imagine a world where the Department could take a 

different position in the future if it wasn’t laid out 

clearly what the Department will do here. But, thank you.

MS. MILLER: Barmak.

MR. DURDEN: Thank you. I have some clarifying 

questions, coming back up to the top: (a) student warning, 
Committee Meetings - 02/16/22 21

(2) content of warning, romanette (iv), (B) as in boy, (1)

and (2). So, here it says that the colleges that are 

notifying these individuals must also indicate (1) and (2), 

and for number 1 it’s not clear. Do you mean that the 

college should indicate whether the program will be 

discontinued if it loses Title IV eligibility? And for (2), 

on the refunds, do you mean that the funds would be refunded 

if the program loses eligibility, or if the program is 

ending?

MR. MARTIN: Give me the cite again, I’m still 

trying to find that.

MR. DURDEN: Yeah, we’re in romanette (iv), so kind 

of at the top: student warning, the communication that the 

college provides to the students.

MR. MARTIN: Oh okay, for warnings provided to 

enrolled students. Is that where you are?

MR. DURDEN: Yeah, an indication of whether their 

institution will (1) and (2). Do you see that?

MR. MARTIN: Oh, okay, I see. I’m sorry. Yes, I see 

where you are now.

MR. DURDEN: Thank you. So, for number (1), 

“continue to provide instruction in the program to allow 

students to complete the program,” I’m trying to clarify, is 

the college indicating whether the program will be 

discontinued if it loses Title IV eligibility?
Committee Meetings - 02/16/22 22

MR. MARTIN: Yes. Yeah. So let’s go back to under 

romanette (iv) there, a description of the academic and 

financial options available to students to continue 

education in another program at the institution. And I think 

this would be whether the program loses eligibility as a 

result of the process or the school voluntarily discontinues 

the program. So this indication, would the student be able 

to continue the program and will the institution refund any 

of the tuition and fees required to pay to the institution

on behalf of the students. So, those circumstances could 

result from the actual loss of eligibility under the rule, 

or the institution after the warning, after failing one year 

voluntarily. It’s deciding whether voluntarily at that point 

to discontinue the program.

MR. DURDEN: Okay, if I can follow up? I think we’re 

just trying to clarify, we’re not assuming that because the 

program loses eligibility that the program is ending, 

correct? I just want to make sure we’re not making that 

assumption.

MR. MARTIN: No, because the fact that the program 

lost eligibility doesn’t mean, we don’t control whether a 

school offers a program. We do have authority over whether 

it’s eligible.

MR. DURDEN: Correct, yeah. So, for number (2), do 

you mean that the funds would be refunded if the program 

loses eligibility or if the program is ended?

MR. MARTIN: That’s a good question here. I think

that they should inform, well, I think we may have to put 
Committee Meetings - 02/16/22 23

some clarifications around that, so I’ll take that back. So 

what you’re saying here is if the program were to lose 

eligibility but continue to be offered by the institution, 

what would the condition of any refund of tuition and fees 

be at that point? I believe we’ve written this with an eye 

toward the program ceasing to ceasing to be offered, but I 

will take that back as far as what would occur if the 

program had lost eligibility, but the school continued to 

offer the program.

MR. DURDEN: Thank you. It’s felt a little 

conflated, so we appreciate your attention to that.

MR. MARTIN: And I do want to point out, too, that 

we referenced 668.26, which is the end of participation, so 

there are rules. I don’t want to go over those now, but 

there are rules about how a school can pay out student aid 

in the in the event of a loss of eligibility. And just to 

point out some information here, yes, this is if the program 

loses eligibility, so institutions would be required to 

provide warnings to enrolled students that describe, among 

other things, the options available to continue their 

education at the institution. The regulations also provide 

that for a GE program that loses eligibility or any failing 

program that is discontinued by the institution, that the 

loss of eligibility is for 3 calendar years. So, we do mean 

specifically a loss of eligibility, but I could see how 

there could be some confusion related to the refund if the 

program continues to be offered. But again, I do want to 

point out that we do have a mechanism in 668.26 for a school 

to pay out Title IV aid for the student in a current year 
Committee Meetings - 02/16/22 24

before the student would no longer have access to that aid. 

But thank you, I will take it back, and perhaps we can have 

some more clarification there.

MR. DURDEN: Thank you.

MS. MILLER: Thank you. We have Barmak next, but I 

wanted to acknowledge that Mr. Carney King is at the table 

for students and student loan borrowers. Barmak.

MR. NASSIRIAN: Yes, I wanted to first echo Yael’s 

concern. I appreciate the Department doesn’t intend to use 

the attestation against students, but it would be helpful to 

address that issue. The second topic I wanted to raise is 

the question of transfer and guidance, with regard to 

transfer, any advice that the institution dispenses 

regarding transfer. The sending institution is in no 

position, unless it has ascertained that credits transfer, 

it is in no position to tell people whether credits will 

transfer or not. And more often than not, the typical advice 

is ‘sure you can,’ by which they mean ‘sure, you can try.’ 

And frankly, transfer alone doesn’t mean much unless the 

credits are applied in the appropriate way toward the 

earning of a degree. You know, they can all be taken in as 

unnecessary electives and leave the student still as far 

away from graduation as they would have been had they not 

transferred the courses. So, it seems to me that in 

romanette (iv) subsection (C), an explanation of whether 

students could transfer, it borders on meaningless. You 

really need to firm that up to make sure that it’s clear 

that the institution has either made arrangements or has 

ascertained that credits will transfer and apply towards the 
Committee Meetings - 02/16/22 25

credential that the student was seeking. So, that’s one 

issue, and the second one has to do with the final phrase in 

subsection (A) under romanette (iv). I’m not quite clear. I 

do understand that institutions are in a position to 

ascertain whether credits earned in one program that may be 

losing eligibility could be used in another program under 

their control, but this final phrase, “and which course 

credits would transfer in the event that the program loses 

eligibility,” do you mean ‘would transfer to another 

institution?’ Or are you still talking about transfer to 

another program at this? I just don’t understand, because it 

seems to me to be redundant in both cases. You’ve already 

addressed whether they transfer within the institution from 

one program to another in subsection (A), and you presumably 

are addressing interinstitutional transferring subsection 

(C). I just wanted some clarification on that. Thank you.

MR. MARTIN: Yeah, Barmak. In (A), “a description of 

the academic and financial options available to students to 

continue their education at the institution,” and so that 

that is intra. I think I got that right, institutional 

transfer there. So what you referenced, "could transfer 

credits earned in the program to another program at the 

institution and which course credits would transfer in the 

event the program loses eligibility for Title IV funds,” so 

this would be irrespective, I think, of whether or not the 

program would continue to be offered. Would they allow the 

student to transfer into a program that is still Title IV 

eligible? To your point in (C), an explanation of whether 

students could transfer, I think yes, I would definitely 

stipulate your concern or the point you made that it’s 
Committee Meetings - 02/16/22 26

impossible to ever know for sure whether credits will 

transfer, and I think in a lot of cases you’re right, the 

school might say, ‘yeah, they might transfer, you can try to 

get them transferred.’ But I think this does take into 

account the possibility that an institution may have an 

agreement with another institution for those credits to 

transfer, so if there’s some type of agreement like that, 

they could let the students know that, ‘yes, your credits 

will transfer to institution B or C.’ Obviously, no schools 

are in a position to say your credits will absolutely 

transfer writ large, I get that, but we might be able to put 

some more context around that, so we’ll take that back. 

Thank you.

MS. MILLER: Thank you. Mr. Jaylon Herbin is at the 

table for civil rights organizations and consumer advocacy 

organizations. And Jessica, you are next.

MS. RANUCCI: Thanks. I’ll try to be quick because 

my concerns are largely the same as the ones raised by 

Barmak and Yael. On the attestation, I would just ask the 

Department to consider whether it might be appropriate to 

either in addition or instead ask the school to attest to 

this. It seems to me like the school is in a much better 

position to assess that federal regulations have been 

followed. And while obviously that’s not fraud proof, I 

think the Department would have independent tools, I’d guess 

fraud in that way would risk Title IV eligibility under 

independent regulations, is my understanding. On the 

transfer point, I 100 percent agree with Barmak. I think 

that we’ve seen real problems with schools disseminating 
Committee Meetings - 02/16/22 27

false information about what transfer options are available, 

and I think that the gold standard here is some sort of 

teach-out agreement/teach-out plan. I understand the 

Department’s problem here, because that’s at the institution 

level and various schools that are closing, and this is at a 

program level and the program isn’t necessarily closing. But 

I guess I would ask the Department to think creatively about 

how it might be something that, I defer to Jamie and her 

people, but something that their people thought a lot about. 

There’s a lot of resources already out there for how to deal 

with this problem, and whether the Department can leverage 

those resources here, because I do think such open-ended

language really gives an opportunity for problematic 

communication.

MR. MARTIN: Thank you, we’ll take that back.

MS. MILLER: Thank you, Jessica. Brad, and then 

Carney.

MR. ADAMS: Thank you. Institutions should not be 

penalized if a program that is being retired produces 

failing D/E rates in its final years. A program that its 

institution voluntarily determines to wind down could suffer 

a decline in D/E rates, particularly if the decision to wind 

down the program was based on market changes. For example, 

if you’re producing graduates for a rural hospital and the 

hospital closes due to market reasons outside of the 

institution’s control, then the institution would be 

prevented from creating future similar programs within the 

four-digit CIP code with other hospitals or anyone else in 

any other market for 3 years. Even if the new version is 
Committee Meetings - 02/16/22 28

shorter, less expensive and redesigned to be more attractive 

to employers. For example, if medical assisting failed in 

New York, you cannot open up a PTA program in Florida. I 

would have hated to have a real estate program in 2008. We 

need a stronger way to allow for institutions to do the 

right things based on local market conditions.

MS. MILLER: Thank you, Brad. Carney.

MR. KING: Yeah, I have just a couple of questions 

and comments. Forgive me, it’s kind of early in California 

still, and I might not have had enough coffee, but I’m 

trying to see what the whole picture looks like once the 

ineligibility happens. Is it just referring to the website 

and then a separate statement that the students have to 

sign, like another document outlining what the Secretary is 

asking for, or is it all kind of one giant piece? I’m just 

concerned that students are going to get buried in the 

minutia of what’s happening or don’t know to check the 

Federal Register for bad actors when they’re in school. So, 

I just kind of want to clarify how that all works.

MR. MARTIN: Well, I would say here, look at it in 

the context of where we start with in (A). These are the 

result of a student warning, so the idea here is that there 

has been a warning issued because the school has failed at 

one year. So, at that point, the potential exists for the 

program failing another year and lose eligibility. So, this 

is about informing students of that potential outcome and 

letting them know what their options are, making certain 

that they’ve seen it, that they know that potential exists, 

and going from there. So, that is what this is, what this 
Committee Meetings - 02/16/22 29

section is about. At this point with a warning a program has 

not lost eligibility, and so we’re not at that point, we’re 

just at the point where you’re informing students of what 

their options may be in that eventuality. Does that help?

MR. KING: Yeah. And would anything be sent to 

anyone, like would their parents also be notified if they’re 

on the loan for the students, or is it just on the students?

MR. MARTIN: It’s just a warning for students and 

prospective students, so there would be at this point some 

obligation on the student to apprize parents of that. But 

this is about, since the student is the one attending and 

the student’s the one receiving the education, this is what 

these warnings are geared to.

MR. KING: Okay. And then does their Pell Grant 

reset if their program loses eligibility? Is there a 

mechanism for that?

MR. MARTIN: We do have some Pell Grant restoration 

of eligibility, I do not believe there is any currently any 

Pell Grant restoration with respect to losing eligibility 

for GE because we haven’t had GE, but that’s a good 

question. I’ll take that back, because you’re making, I 

would ask, are you making a suggestion that that be the 

case?

MR. KING: Yes.

MR. MARTIN: Then in that case, I will take that 

back. Okay.
Committee Meetings - 02/16/22 30

MR. KING: And then my last question on this is, I 

want to make sure that universities cannot withhold 

transcripts if they’re in that process.

MR. MARTIN: We will have a discussion of that a 

little later in the week.

MR. KING: Okay. Alright, thank you.

MS. MILLER: Thank you, Carney. David, and then 

Debbie.

MR. PETERSON: Yeah, I guess my question involves 

the attestation of the student. My concern is, from a 

program standpoint, am I able to give that student aid if we 

haven’t received any notification from the Department that 

they’ve seen the warning? Are we able to register them for 

continuing their enrollment? I guess I kind of agree with 

the earlier statement. That should be probably something 

that we as an institution assume responsibility for, not the 

Department. I feel like you’re really going to be slowing 

the process down for some of these students to continue on, 

if that’s what their goal is to do. That’s the only comment 

I had.

MR. MARTIN: Thank you. I’ll take that back.

MS. MILLER: Thank you. Debbie.

MS. COCHRANE: Thank you. I have two points. Both of 

them are kind of feeding off of things that have previously 

been said. I’m not totally sure I understood the specific 

details if there were some offered. One is just I would
Committee Meetings - 02/16/22 31

voice some support for a concept that Brad said, which is 

that I think, in my view, I think having institutions 

intentionally wind down failing programs or programs that 

they can see are not working well for students is an 

unintended consequence of this rule. And so, I think we 

should be mindful of that, and encouraging of institutions 

to kind of do the right thing before federal policy requires 

them to do the right thing. So, as a general matter, I also 

was not sure I totally understood the exchange between Will 

and Greg with respect to (B)(2), the idea of refunds and the 

idea that programs would stay open, because it feels like 

(B)(1) talks about whether an institution will continue to 

provide instruction in the program. And of course, if it’s 

losing Title IV eligibility, then that continued instruction 

couldn’t be with Title IV, so it would seem like it was 

continuing to operate without Title IV. So again, I’m not 

totally sure I understood that, but if (B)(2) is essentially 

saying that some students should be getting refunds, they 

would be entitled to refunds under certain circumstances, I 

think we should be cautious about dialing that back if 

programs are still remaining open. I think what I’ve seen in 

cases where an institution as a whole loses Title IV and 

stays open, the institution is able to do so by pushing 

students to private and institutional loans, and that is not 

a good option. I think whether someone wants to stay 

enrolled in a program that loses Title IV eligibility should 

be the choice of the student, and if we are effectively 

denying a student the opportunity for a refund, we’re 

holding them hostage.
Committee Meetings - 02/16/22 32

MR. MARTIN: I take your point, but I will say here 

that, we mandate when an institution has to do a return of 

Title IV funds calculation, that’s when a student withdraws 

or is expelled or otherwise leaves a program in the middle 

of a period of enrollment, which probably would not be the 

case here. But if it were, if a school ceased to operate a 

program in the middle of a period of enrollment, then there 

would be a return of Title IV funds calculation necessary 

for their Title IV funds. This is a refund. So, this has to 

do with their refund of tuition and fees, or other required 

charges. We cannot compel an institution to provide a refund 

for students--not talking about R2T4 now, a refund. So what 

we’re talking about in this regulation is simply, if you 

note in (B), an indication of whether the institution will. 

So, we’re not in any way mandating an institution to do so, 

but just as information to students as to whether--I think 

there is always the possibility that, yes, with the loss of 

Title IV funds, that the institution can continue to operate 

the program. I don’t know how often that would happen, that 

they would operate this program without benefit of Title IV 

funds. So, I think in most cases, you’re probably going to 

have a program which is not going to be operating anymore, 

and that’s where this regulation is coming from. So, though 

we cannot mandate that the institution offer a refund to 

students, we can mandate that they indicate to the student, 

at least, whether or not they are going to as in (1)

continue the program of instruction. They might want to 

teach out the students in that program. And then, I think 

what (2) is saying is if they’re going to close it and 

students will no longer be able to be in the program, will 
Committee Meetings - 02/16/22 33

they get that refund of tuition? So, it’s about information 

being provided to the student, not a mandate from the 

Department that these things be done, except to the extent 

that they have to indicate it, if that helps.

MS. MILLER: Thank you, Greg and Debbie. We have 

Carolyn Fast, who has rejoined us at the table for civil 

rights organizations and consumer advocacy organizations, 

and we also have Mr. Ernest Ezeugo, who has joined us at the 

table for students and student loan borrowers. Brad.

MR. ADAMS: Thanks. We’d like the Department to 

consider if a program is subject to a loss of eligibility 

due to failing D/E rates, it should only lose access to the 

Direct Loan program. Students attending the institution and 

choosing to continue in the program should still have the 

opportunity to access Pell Grants, and maybe the 

institutions could even offer matching similar institutional 

grants, similar to how the Yellow Ribbon VA program works. I 

don’t think it’s fair to students to lose their access to 

Pell by continuing in programs they choose to, and I would 

appreciate comment on that, and just the overall comment on 

closing a program due to market conditions and excluding 

that from the provision.

MR. MARTIN: I can take back both of those 

suggestions, Brad. It’s not what we proposed here, and I 

don’t have the authority to just say ‘yes, we would accept 

that’ or not. I’ll definitely take those back and discuss it 

with leadership. I get your point about the wind down of the 

program. But I do want to point out that the consequences 

for students remain, whether or not it’s the result of the 
Committee Meetings - 02/16/22 34

Department, or whether it’s that of failing D/E rates or 

whether the school chooses to wind down the program. So, I 

do want to point that out, but I will definitely take back 

the suggestion about the Pell Grant, and the other one about 

the program wind down.

MR. ADAMS: And just to finalize that comment, 

senior leadership at the Department previously discussed 

bifurcating sanctions based on the purpose of the Title IV 

program. So, we think there may be merit in doing this with 

Pell, considering this is GE and this is part of the rate in 

the debt to earning metric.

MR. MARTIN: Thank you. We will definitely discuss 

that.

MS. MILLER: Thank you, Brad. Emmanual.

MR. GUILLORY: So, I had a question for the 

Department. So, Greg, I just wanted some clarification, from 

my understanding and reading of this with these warnings, 

this would happen after one failed D/E rate. Is that 

correct?

MR. MARTIN: That is correct.

MR. GUILLORY: Okay. So, a program would fail once, 

and then could not fail the next year, but because they 

failed once and they issued these warnings to students, 

which would freak a student out--I mean, if I was a student, 

I would be freaked out to see this morning like, ‘oh my 

gosh, this program failed this rate and I need to get out of 

it.’ And then the next year, the program passes and the 
Committee Meetings - 02/16/22 35

program continues to pass, yet the student has altered their 

life, went to a new program, just out of fear that something 

is going on, and this program actually is doing a good job 

and it’s not a bad actor program. And so my concern just 

comes around to the idea of yanking the students around. 

Yes, we want to protect the students, we want to make sure 

they are in good programs, 100 percent, and we want to make 

sure they’re not in the bad actor programs. But what about 

those programs that aren’t the bad actors, but something 

happens in the market, like a pandemic or something, and 

there are just unfortunate events surrounding that with the 

earnings data and that sort of thing, and so this program 

doesn’t receive the best rate for that year? I just 

concerned about the--obviously we want to warn students who 

want to be transparent with information and data, I’m not 

saying we don’t want to do that, we do want to do that--I 

just get concerned about those programs that have a slip up 

for some reason for one year, and they’re good, but then the 

student freaks out and then makes all these changes and it 

disrupts their postsecondary higher education career. 

MR. MARTIN: Thank you.

MS. MILLER: Thank you. Yael.

MS. SHAVIT: I just want to say I think students are 

certainly able to take circumstances into consideration when 

they’re thinking about and processing the information that 

they need to make informed choices for their lives. These 

rates are not arbitrary. They’re indicia. Whether or not 

they’re indicators of a problem that can be corrected or a 

problem that will persist is certainly not a reason to 
Committee Meetings - 02/16/22 36

deprive students of the information that’s necessary. And 

Emmanual, you say that you’re all for transparency. 

Transparency is providing students, with this information, 

the ability to make their own informed choices. I think 

there’s just absolutely no justification for keeping any of 

this type of information secret. And I also want to note 

that this regulation is not just about weeding out bad 

actors, it’s also about weeding out schools that, for 

whatever reason, aren’t able to provide gainful employment, 

even though they would like to and intended to, and students 

need to be able to have a preview into what may be coming 

down the line. If that means that some students decide that 

their level of risk aversion is such that they want to 

transfer, that is their prerogative to do it, and I think 

there’s just absolutely no justification for depriving them 

of that information.

MS. MILLER: Thank you. Ernest.

MR. EZEUGO: Yeah, I’ll keep my comments pretty 

brief, because I think I agree completely with everything 

Yael just said. I would also, I’m curious as to the number 

of programs that are actually failing this D/E standard for 

1 year and then coming back and maintaining strong presence. 

As my colleague Carney said in the chat, and also speaking 

as one of the only students on this committee, so I’m far 

less concerned about the collateral damage of being jerked 

around a little bit in what seems like a relatively rare 

instance when the program fails this metric once and then 

recovers, compared to what can happen when, quite frankly, 

the metric is correct and shows that a program is not 
Committee Meetings - 02/16/22 37

necessarily keeping up with its commitment to making sure 

students are gainfully employed after graduation.

MR. MARTIN: Thank you.

MS. MILLER: Thank you, Ernest. Emmanual.

MR. GUILLORY: I just wanted to add to my comments 

that when I think of these career programs, and I’m talking 

about programs that are at our institutions, private 

nonprofit institutions or publics or whatever, I’m not 

talking about for-profit institutions per say. I think about 

institutions that enroll a large number of low-income 

students and low-income students of color, who we want to 

make sure they have access to a postsecondary degree. We 

want to make sure that it’s quality, and we don’t want them 

to be preyed on or anything like that, but they take a 

chance on students to make sure they have access and make 

sure they can get that degree, to then help them live their 

American dream however they want to do that. And because of 

unfortunate discrimination that has happened in our country, 

which would require them to have come from low-wealth 

families, which means they have to borrow more because they 

don’t have the money to lean on to help pay for living 

expenses, to attend their postsecondary degree. They go to a 

program that would be considered a gainful employment 

program, because that’s what we’re talking about, those 

types of programs. For whatever reason, they choose to go 

into that program, and they attend an institution that has a 

great mission and that is not trying to prey on students at 

all, but want to give them an opportunity to be successful, 

and then they go into labor market and they experience 
Committee Meetings - 02/16/22 38

discrimination in the labor market, not because they’re not 

intelligent and smart and hardworking, but because they’re 

just faced with challenges because of the color of their 

skin, unfortunately. Then those programs at those 

institutions that would likely enroll a large number of lowincome students of color would likely not have the best D/E 

rates only because those students who are low-wealth are 

taking on more debt because they need to. And then when they 

get to labor market with their earnings, it’s not on par 

equal with their peers, necessarily. That’s not a fault of 

the program, per se, that’s a fault of the history of what 

has happened in this country. But I agree with the comments 

that my colleague Ernest made yesterday, in that we 

definitely don’t want programs that prey on these various 

types of students that I’m talking about to exist. We don’t 

want that. I don’t want that. I’m not advocating for that. 

I’m just trying to keep in mind, I just want to make sure 

that we are holistically thinking about all the types of 

career programs out there at many different types of 

institutions that are the good actors. So, I just wanted to 

add that point.

MR. MARTIN: Thank you.

MS. MILLER: Thank you. Amanda.

MS. AMANDA MARTINEZ: Yeah, this is a question for 

the Education Department. I think the conversation has been 

fruitful. I also think that this is an extremely [inaudible] 

perspective here. And also, in good faith, I’m imagining the 

reason why the Education Department outlined this section in 

detail specifically in warning students is because, through 
Committee Meetings - 02/16/22 39

experience, the Education Department has collected or has 

made an analysis of what’s going on in the environment when 

it comes to career educational programs, and in the cases 

when they are bad actors, right? You’re collecting this 

information, you’re making an analysis and a decision of 

what to do to help improve the lives of students in this 

case, so I’m guessing that’s where that came from. You 

probably have some data, and you make these regulations 

based on your experience in regulating or understanding 

institutions in this specific scenario. And so you probably 

have more cases than none, I’m guessing here, that this is 

the best way forward. This is the best solution forward for 

students, because you probably see cases where most likely 

that institution, whether the school closed or they no 

longer become eligible for Title IV aid, they are more 

likely probably to not again be able to have Title IV aid 

the next year. So, I think that’s probably the likelier 

case, versus the other cases that are presented here. And I 

would like for you to share that this is coming from 

reasoning, analysis, and history in regulating this market. 

I think this is one I’d like to share my support for, this 

section. I think it’s a clear section. You didn’t 

necessarily say the data or how many cases this brings up or 

why it’s important, but it would be helpful probably to hear 

that you are making, the Education Department is outlining 

the section because it has experience and this is the best 

way forward.

MR. MARTIN: Yes, I think that it goes without 

saying that where an institution is required to issue a

warning, that there could be a built-in incentive for the 
Committee Meetings - 02/16/22 40

institution to not make that very apparent because of the 

ramifications of this. And so, our concern is for students, 

that they are actually informed of this potential, and that 

it not be possible for an institution to bury that 

information or somehow obscure it. This affects students’ 

lives, potentially, and they need to know about it. So, 

that’s what’s driving this, so that we can, to the greatest 

extent possible--understanding we can’t make it so in every

case--but to the greatest extent possible, we can get 

reasonable assurance the student has been informed of this, 

has seen it, knows about it, that it wasn’t in tiny font 

somewhere on a website where we’re buried among many other 

papers. So, that is our goal here, is strictly to get 

information to students, which could have a great bearing on 

their future.

MS. MILLER: Thank you, Jamie. Jamienne.

MS. STUDLEY: Jamie is just fine. A very quick 

comment, I want to pick up on what Emmanual was saying, 

because his point is well-taken in the larger context about 

the importance of looking at institutional peers’ population 

context in light of societal discrimination and biases of 

all kinds that affect student outcomes. But I want to just 

underline what Jessica put in the comments on the side about 

the application of that warning’s important reality to GE. 

GE is like a baseline or a core minimal standard, and the 

analysis that suggests that it’s not driven by those program 

circumstances, and we haven’t heard any argument to the 

contrary here, suggests that it’s appropriate to use GE as a 

floor or requirement and then to consider the issues that 
Committee Meetings - 02/16/22 41

you’re describing for other aspects of institutional 

performance beyond that. But in short, the point is welltaken, but I don’t think it affects GE, which has all sorts 

of protections and minimums and room for income variations 

and debt to create this ‘this is just not acceptable’ 

standard, and then beyond that, to take into account the 

other factors that are deeply troubling and very real in 

terms of how to understand institutional effectiveness and 

its relationship to other forces and factors, and not 

penalize either institutions or students for those.

MS. MILLER: Thank you, Jamie. I am not seeing any 

other hands raised. Greg, are we okay to take a temperature 

check or did we want to move on to the next section?

MR. MARTIN: No, we could take a brief temperature 

check of 407.

MS. MILLER: Okay, so if I can see a show of thumbs 

for 668.407. Hold them up high for me. Okay, I’m seeing one 

thumb down, am I correct about that? Okay, thank you very 

much. Greg, I’ll turn it over to you for the next section.

MR. MARTIN: And Vanessa will be queuing section 

408, reporting requirements for GE programs. And here we 

note that this section outlines reporting requirements for 

gainful employment programs, and these are similar to the 

2014 rule. They include some basic student-level reporting 

on the enrolled program, enrollment and attendance dates, 

and enrollment status by attendance identity. So, you can 

look through those. If we look at (a)(2), for students who 

completed or withdrew from the program, the institution is 
Committee Meetings - 02/16/22 42

required to report when the student left the school, their 

total private and institutional loan debts, and the total 

amount of tuition and fees assessed for books, supplies, and 

equipment allowed for the student. This will allow the 

Department to create completer lists to include the nonTitle IV debt and the debt-to-earnings rate, and to do the 

cap of the debt levels at tuition, fees, and books and 

supplies. So, I just wanted to point out that we have 

included that. And, in moving down to (b), this section 

outlines the reporting date requirements and requires the 

institution to explain why it might fail to meet any of the 

reporting deadlines. As you can see, those are outlined 

there. The institution must report information required in 

(a)(1) and (2) of the section no later than July 31 

following the date the regulations take effect for the 

second through the seventh award years prior to that date. 

And then we also have it for medical and dental programs 

that allow a residency, that’s July 31st following the date, 

the regulations take effect for the second through the 8th 

award year prior to those dates. And that is it for 

reporting, so I can open up the table for any comments or 

discussion on 408.

MS. MILLER: Any comments or questions? Yael, 

please.

MS. SHAVIT: Very quick comment. Consistent with the 

comment I made yesterday that any reporting requirements 

about institutional debt should make sure to either cross 

reference in a way that makes clear that ISAs and the like 
Committee Meetings - 02/16/22 43

are included or explicitly states that as well here. Thank 

you.

MS. MILLER: Thank you. Will.

MR. DURDEN: Thank you, I’m finding my spot, I’m 

getting in here to make sure that I can show you what I’m 

looking at. So, 408, I think we’ve got (b)(2) for any award 

year. So, this is about “an institution must report the 

information required for any award year if an institution 

fails to provide some of the information required,” wondered 

if we’d get any clarification on “the institution must 

provide to the Secretary an explanation acceptable to the 

Secretary of why the institution failed to comply with any 

of the reporting requirements.” So that’s a 

question/clarification there at the end of that section. And 

then just back to a comment on any retroactive reporting and 

the burden, that creates administrative burden for 

institutions and hoping for some type of a safe harbor 

provision or something a little bit more specific about how 

institutions can work with that.

MR. MARTIN: Thank you. Yeah, in looking at (b)(2) 

where you referenced, “a reason acceptable to Secretary of 

why the institution failed to comply,” there could be 

extenuating circumstances why an institution could not 

comply with that requirement. There could have been a flood 

at the institution or something, or a fire, or there could 

be some reasonable circumstance that made it impossible for 

the school to submit that information, so we just want to 

account for that possibility. And of course, there is some 

subjectivity involved there; I think that’s necessarily so. 
Committee Meetings - 02/16/22 44

So, the Department would determine whether or not that 

reason was acceptable. And, I forgot your other point. I’m 

sorry, you made one more point.

MR. DURDEN: It’s just a point on the retroactive 

reporting. 

MR. MARTIN: Oh yes, retroactivity. As I’ve said, 

the Department is making every effort that we can to 

calculate rates through administrative data that we’ve got, 

and primarily what we have from institutions comes from 

comes from COD and NSLDS, but there are obviously some 

things we cannot get. So yes, there is going to be some 

burden associated with that. We have yet to flesh all the 

details of that out. But it is a good point and I’ll take 

that back, and we certainly want to provide more information 

and detail on that.

MR. DURDEN: We look forward to that, Thank you.

MR. MARTIN: Thank you.

MS. MILLER: Debbie.

MS. COCHRANE: Thank You. Just a clarification on 

the suggestion for potential need for clarification on the 

length of the program, which is in (1), romanette (ii). I 

think when we saw the prior iteration of the GE rule, at 

least with respect to the disclosures, what we saw a number 

of institutions doing was dividing out their programs by 

different lengths. It would say a master’s program you can 

do with a 12-month or a 24-month, and the only difference 

being one was a half-time enrollment and one was full-time 
Committee Meetings - 02/16/22 45

enrollment. So, I think it just adds to confusion for 

students and potentially another way of gaming the rules. 

So, it might be helpful to add some clarification about 

whether length should be in the calendar months, whether 

minimum or full-time status or typical, or in clock or 

credit hours.

MR. MARTIN: Thank you.

MS. MILLER: Thank you. Okay, I am not seeing any 

more hands for comment on 668.408. Greg, should we take a 

temperature check?

MR. MARTIN: Yes, please.

MS. MILLER: Okay. Let’s see a show of thumbs for 

668.408. Okay. One thumb down, am I correct? We have one 

thumbs down, thank you. Greg, over to you.

MR. MARTIN: And we’ll have Vanessa cue up 409 for 

us. And you see 409, supplementary performance measures. I 

want to point out here that this is a new section of the 

regulations that we didn’t see in 2014. While we believe it 

is very important to regularly assess program-level 

eligibility based on debt-to-earnings rates, those rates are 

not reflective of all the potentially problematic outcomes 

at an institution. We have therefore proposed to add this 

requirement across all institutions that certain data 

elements be reviewed and may be considered during 

recertification, and/or prior to issuing new or updated 

program participation agreements. And these elements include 

withdrawal rates, debt-to-earnings rates. Considering

outcomes only of graduates of the institution at schools 
Committee Meetings - 02/16/22 46

with very high dropout rates, especially, may not be 

reflective of all problematic outcomes that students 

experience. We propose to examine the withdrawal rates of 

students. Debt-to-earnings rates, this will allow the 

Department to consider broadly a school’s D/E rates, if 

appropriate. The small program rates, in addition to 

considering the D/E rates of all programs, this will provide 

an opportunity for the Department to consider the outcomes 

also of programs for which D/E rates weren’t individually 

reported as part of the holistic review of the institution’s 

outcomes. Instructional, advertising, and administrative 

expenses, this information can provide valuable insights 

into the priorities of the institution and the potential 

misallocation of resources to address other problematic 

outcomes. And job placement rates, if states or accreditors 

are requiring institutions to report placement rates, we 

will examine what those rates look like. We recognize this 

information may be of limited utility to students, depending 

on the methodology that is used, but we believe it is 

essential for regulators, including the Department, to be 

aware of how such information is being reported. So, you can 

see there in section 409, turn over and take a look at that 

new section, where we are asking for a withdrawal rate, 

debt-to-earnings, we’re looking at small program rates, 

instructional advertising, job placement, again to take a 

holistic view of the institution’s participation. And this 

is for all institutions, not just GE. So, I’ll open the 

floor for comments on that. All programs, rather, not just 

GE programs.

MS. MILLER: Carolyn.
Committee Meetings - 02/16/22 47

MS. FAST: I think that we are generally in support 

of this provision. I have a question, or a comment perhaps, 

about the performance rate related to instructional 

advertising and administrative expenses. This is a helpful 

addition, and I have some thoughts about this that we will 

share, some potential proposal language.

MR. MARTIN: Okay, thank you.

MS. STUDLEY: Yes, I’d be interested in knowing 

whether the Department has these now, whether you’ve got the 

data to compile all of these or whether that would require 

additional reporting? And whether something like number (4), 

instructional advertising and administrative, whether there 

are accepted or standard accounting definitions for those 

that would allow for calculation and comparability?

MR. MARTIN: Right now, Jamie, we don’t have any 

mechanism in place right now that collects the amounts that 

an institution spent on these various different activities. 

Thank you for the comments, and I’ll go back and get some 

more clarification on that. I’m not aware of any accounting 

standard that applies specifically to this, although I’m not 

an accountant, so I’ll have to check with our people who 

are, and get more clarification on that.

MS. STUDLEY: Yeah, and I’ll ask the same question 

on a provision later, this is a ‘may consider the 

information in determining,’ so the question is whether it 

establishes either a new definition that we need to work out 

here or just gives the Secretary, if and when he or she can 
Committee Meetings - 02/16/22 48

establish, a useful category of information and can apply it 

in determining whether to give a PPA.

MR. MARTIN: I think the latter.

MS. STUDLEY: What we’re negotiating here on whether 

we should be thinking about what these particular terms are, 

or they’re just examples of what the Secretary may do later, 

what’s the meaning of their being in the regulation? I know 

that’s a little abstract, but if they don’t exist and we 

don’t know how they match what’s going on otherwise, would 

it be important to work that out here? Does it need to be in 

the regulation? Or does this create an authority the 

Secretary needs to have to decide about PPAs? In which case 

we should give the Secretary maximum reasonable authority.

MR. MARTIN: Right. You know, part of this is--and I 

definitely want to open this up and say that we seek 

feedback on those issues--exactly how this ought to be done. 

Currently, we don’t put in here any reporting protocol for 

these amounts or expenses. This would allow the Secretary to 

consider these elements when looking at an institution’s 

overall participation, and they are important aspects of 

institutional participation, whether an institution is 

diverting its resources primarily to advertising and those 

types of things as opposed to education. Job placement rates

obviously are something which is a consideration. But we’re 

not specific here as to those things, other than we say that 

the Secretary may use these, may consider this information 

too in making its determination whether to certify or 

condition the participation of institutions. So, I will open 

it up if anybody has any ideas as to how maybe this should 
Committee Meetings - 02/16/22 49

be structured, other than obviously where we become aware of 

it through a review or audit process, or we ask for specific 

information when at the point at which we recertify an 

institution.

MS. MILLER: Okay. We have Will, and then Brad, and 

then Beverly, you put in the chat that you also have a 

question, so you’ll be after Brad. Thank you. Will, please.

MR. DURDEN: Thank you. Kind of recalibrated a 

little bit because I was pretty focused on gainful 

employment, since that’s section that it’s in, but now 

thinking about the fact that this is more broad to programs, 

so it doesn’t seem like it should belong in gainful 

employment, because when we think about withdrawal rates I’m 

wondering what that has to do with gainful employment. 

That’s its own question. But if that’s not the key question 

because it applies to all programs, then let’s get that 

where it belongs. Kind of objecting to the small cohort 

authority too; not sure that’s a reason to throw great 

programs out, so I’m not comfortable with that. And yeah, 

this open question about that you really have all this data 

available to make these types of determinations. So, I have 

some reservations on this section.

MR. MARTIN: Thank you, and I also want to point out 

that we do we invite any suggestions for text around this, 

and any other ways in which you might think these 

regulations should be presented.

MS. MILLER: Thank you. Brad, and then Beverly.
Committee Meetings - 02/16/22 50

MR. ADAMS: You know, I also missed that this 

section, 409, was going to apply to all programs. I mean, 

frankly, maybe it’s better at 668.43. That’s pretty clear 

there; that’s where I’d put it. But I still don’t understand 

how this information is different from what we’re already 

reporting in IPEDS and why it’s necessary here when we’re 

talking gainful employment.

MR. MARTIN: Thank you.

MS. MILLER: Beverly. You’re on mute, Beverly.

DR. HOGAN: Actually, Brad just raised the question 

and concern I had. I was wanting to clarify that Greg had 

actually said to all programs, and my question would be the 

same.

MS. MILLER: Thank you. Emmanual.

MR. GUILLORY: I had a question regarding the small 

program rates actually being used to determine whether or 

not an institution would be approved in their program 

participation agreement, or recertified, or whatever the 

condition would be, so I guess that’s on a provisional 

certification status or whatnot. So, is it the intent of the 

Department to actually then use the small program rates, as 

it states here, to actually determine whether or not--I 

mean, how would that be weighted? And I ask because before, 

when we talked about the small program rates, we talked 

about them not having an impact on their D/E rate 

calculations, even though the D/E rates would be calculated 

for these small programs. And I had mentioned earlier with 

moving to the 4 CIP or 6, when you want to capture all the 
Committee Meetings - 02/16/22 51

programs and you’re doing it by doing smaller program rates. 

But can you, Greg, just kind of explain how the Department 

actually plans to use these small program rates in 

determining a program participation agreement?

MR. MARTIN: Well, it’s a tool that the Department 

can, you know, one aspect that the Department can consider 

when looking at certifying or conditioning a program 

participation agreement. There’s no indication here or 

intent on the part of the Department to set a threshold for 

those at which we would remove an institution’s 

participation. It’s just a consideration, but I do 

understand that, as spelled out here, there’s not a lot of 

detail about that, so I will definitely take back those 

concerns.

MR. GUILLORY: Thank you.

MS. MILLER: Thank you, and my apologies for the 

background noise. I am not seeing any other questions or 

hands. So, Greg, should we take a temperature check on this 

section?

MR. MARTIN: Please.

MS. MILLER: Okay, can I see a show of thumbs for 

668.409? Okay, and I am seeing two thumbs down. Thank you. 

Okay, Greg, can you take us into the next section, please?

MR. MARTIN: Yes. We’ll be pulling up 668.410, which 

is certification requirements for the GE programs. Okay, and 

so we have that up. This is also something that we had in 

the 2014 rule, and this section includes procedural 
Committee Meetings - 02/16/22 52

certification requirements for the GE programs. Under this 

section, institutions are given a timeline for providing 

certifications that their programs meet the other 

requirements of this section before debt-to-earnings rates 

may be available. So you can see here, under the 

transitional certification for existing programs, that 

except as provided in paragraph (a)(2), the institution must 

provide the Secretary no later than December 31st of the 

year in which the regulation takes effect, in accordance 

with procedures established by the Secretary, the 

certification, signed by its most senior executive officer, 

that each of its current eligible GE programs included on 

its eligibility and certification approval report meets the 

requirements of paragraph (d) of this section. The Secretary 

accepts the certification as an addendum to the 

institution’s program participation agreement. We note here 

that if the institution makes the certification in its 

program participation agreement between July 1 and December 

31 of the year in which the regulation takes effect, it’s 

not required to provide the transitional certification. 

Looking down to (b), institutions are required under their 

PPAs to comply with the requirements of this section and 

update the certification within 10 days if anything changes 

that relates to the condition of continued participation, 

the program must certify in its PPA with the Secretary that 

each of its currently eligible GE programs included on its 

ECAR meet the requirements of paragraph (d) of this section. 

And the institution must update that certification within 10 

days if there’s any change. And (c) reflects requirements 

for establishing eligibility and disbursing funds. 
Committee Meetings - 02/16/22 53

Institutions must update their list of eligible programs 

with the Department in order to establish Title IV 

eligibility for an additional program. They may not include 

on that list any program that is substantially similar to a 

failing program that the school has discontinued or has 

become ineligible. And in (d) finally, the certifications 

themselves include assuring that each GE program is approved 

by a recognized accreditor or included in the institutional 

accreditation of the school, or that it is approved by a 

recognized state agency. So, you can see that reflected in 

(d). An institution certifies for each eligible program 

included on its eligibility and certification approval 

report, at the time and in the form specified in this 

section, that each eligible GE program it offers is approved 

by a recognized accrediting agency or otherwise included in 

the institution’s accreditation by its recognized 

accreditation agency, or if it’s a public postsecondary 

vocational institution, the program is approved by a 

recognized state agency. And I’ll leave it there and open 

the floor for comments or discussion on certification 

requirements.

MS. MILLER: Thank you, Greg and Vanessa. Comments, 

questions for the Department? Okay, I am not seeing any, oh, 

Marvin.

MR. SMITH: I just want to make sure I’m 

understanding this again, because to me, if we have a 

certificate program change like a curriculum change, you’re 

expecting schools to report that within 10 days of the 

change, because I think that might be difficult for schools 
Committee Meetings - 02/16/22 54

to comply with. I wonder if there might be a more reasonable 

number of days. But maybe I’m not clear on what type of 

changes in certificate programs you want us to report on the 

PPA.

MR. MARTIN: These don’t deal so much with changes 

in curriculum. If we go back to (b), as the condition for 

its continued participation under 668.14, the institution 

must update the certification within 10 days if there it has 

to, I’ll actually continue reading there, that each of its 

currently eligible programs included on its eligibility and 

certification approval report meet the requirements of 

paragraph (d), which we just went over, which is that it is 

recognized by the accreditation agency or otherwise included 

in the accreditation. So, what we have here is that an 

institution must update that certification within 10 days if 

there are any changes in the approvals for the program or 

other changes for a program that make the existing 

certification no longer accurate. So, if that curriculum 

change precipitated a change in the approvals that it 

requires for (d), or made that existing certification that 

the program has no longer applicable, then it would have to 

be reported. If it doesn’t affect those things, then it 

would not be required to be reported under this under this 

section.

MR. SMITH: Alright, thank you for the 

clarification.

MS. MILLER: I am not seeing any other hands for 

comment. Greg, should you take a temperature check on the 

section?
Committee Meetings - 02/16/22 55

MR. MARTIN: Sure. So just to clarify again, we are 

doing section 410.

MS. MILLER: Thank you. Show of thumbs for 668.410. 

Okay, I am not seeing any thumbs down. Thank you. Okay, 

Greg, back to you for our next section. Thank you, Vanessa.

MR. MARTIN: Vanessa will be pulling up 668.43, 

institutional and programmatic information. And here we’ve 

added a requirement that all institutions provide 

information, as determined by the Secretary, that will allow 

prospective and enrolled students to seek critical 

information about their programs, which may include any of 

the following items: the occupation for which the program is 

preparing students; completion and withdrawal rates for the 

program; the length of the program; enrollments in the 

program; repayment rates for students or graduates of the 

program; the cost of tuition, fees, books, and supplies and 

equipment; the share of students in the program who take 

student loans; the median loan debt for students or 

graduates; the median earnings of students in the program; 

programmatic accreditation information, if applicable; any 

of the supplementary performance measures we defined above; 

and a link to the College Navigator or similar federal 

website. So, you can see that reflected here in the 

disclosure website. The institution must provide such 

information as the Secretary will prescribe through a 

Federal Register notice for the 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, and 
Committee Meetings - 02/16/22 56

the Secretary may include on the website among disclosures 

the things that we just reported. So, many of these, I just 

want to point out that, for instance, in (2), as reported, 

two were calculated by the Secretary: the program’s 

completion rate for full-time and less than full-time 

students, and the program’s withdrawal rates. And some of 

these things are calculated by the Secretary. For instance, 

the loan repayment rate would be calculated by the Secretary 

as well. So, just to point out that these would be indicated 

through the publication of a Federal Register. I’m going to 

go on down to (2), where we talk about program web pages. 

We’ve also clarified that the information to access the 

Department’s website must be prominently posted on certain 

pages of the institution’s website, and that the information 

to access the website must be provided to prospective 

students before they enroll. And that’s reflected here, 

where we talk about program web pages. The institution must 

provide a link and any needed information to access the 

website maintained by the Secretary on any web page 

containing academic cost, financial aid, or admissions 

information about the program. And the Secretary may require 

the institution to modify a web page if the information is 

not sufficiently prominently or readily accessible, clear, 

or displayed in a conspicuous manner. And then there’s the 

direct distribution to prospective students, where the 

institution must provide the relevant information to access 

the website maintained by the Secretary to any prospective 

student, as defined in 668.402, or any third party acting on 

behalf of the student. So, with that, I’ll turn it over for 

discussion on 668.43.
Committee Meetings - 02/16/22 57

MS. MILLER: Okay. Jamie, and then Brad.

MS. STUDLEY: Any of you who attended or remember 

any of the 80 meetings I conducted on the new idea of the 

College Scorecard knows that I favor increased disclosure to 

students of the best possible information. These are 

consequential, complicated, and sometimes even mysterious 

decisions, and it’s understandable that the Department wants 

to build on that Scorecard and other disclosure framework to 

help students make these important decisions. And, I would 

add, help drive institutions who see this information to 

improve themselves; and it’s as important that institutions 

use it to meet a higher bar and realize what others are able 

to do when it’s better than what they’re doing, as that 

students get the information. I have the same question about 

this one. I won’t belabor it, and maybe the lawyers can help 

with this. Does the Secretary need this provision to have 

the authority to do this? Is it a new data collection 

requirement, in the first sentence saying that institutions 

‘must provide?’ Would they not have to provide it now if 

IPEDS, for example, included it? That’s one question. The 

“may” and the “among” make me wonder whether that’s needed 

here. So first is sentence, do you want a new authority for 

the Department to require information from institutions? Let 

me pull out two specifics, and this partly goes to the 

question of whether we need to be designing the specific 

elements here, or whether that’s something the Department 

will do in the NPRM and over time as data possibilities 

grow, but there are two that I think create a great deal of 

mischief, and I come back to them specifically, if you want 

to break them down. What is a program for this purpose? I’ll 
Committee Meetings - 02/16/22 58

pick on Marvin here: is UCLA’s entire undergraduate 

bachelor’s program a program in these terms? Is its history 

major or its chemistry major, a program that has substantial 

consequences? The whole issue of the primary occupation that 

this program prepares people for is a subject that we should 

discuss at length. Is it the Department’s observation from 

history about what chemistry majors do? Would it be the same 

for UCLA chemistry majors and majors from a neighboring 

institution with a chemistry program or not? Is it based on 

actual history by school choice? There’s a lot to be done 

here, and we don’t want to force people into tracks or ruts 

in the road that don’t fit the educational component, 

especially if people are doing fine, if there aren’t 

concerns about whether they’re meeting the measures. And 

second, I would like to return to this one as well, total 

cost should be total price. There are institutions where the 

total cost is more than students are asked to pay. But more 

important, price without some indication of net price by 

family income could be one of the most dangerous pieces 

possible if it further exacerbates the problem that many 

families overstate the cost of higher education, don’t 

realize what aid is available from the federal government 

and institutions, and would see a total cost item that could 

be terrifying and deter people from going to college, which 

is the opposite of what any of us want.

MR. MARTIN: Yeah, a lot there, certainly. I do want 

to say about this particular requirement in 43 that we 

already do have the authority to require disclosures, and 

much of this we already do disclose. This has to do with the 

website that we’re planning to have, the disclosure website 
Committee Meetings - 02/16/22 59

we want to build, to have a place where students are 

referred to and have the disclosures displayed in a way that 

we think will make it clear to them. And I’d just go back to 

up to the top of (d) again and reference the disclosure 

website, this is what this specifically refers to.

MS. MILLER: I apologize for [inaudible], Greg. 

That’s helpful clarification. And I would just add that, for 

my part, (2) and (3) seem reasonable. And as a [interposing] 

lawyer, the sufficiently prominent, accessible, clear, 

conspicuously direct is a good standard to set. I’ve been 

looking at websites lately and the differences are striking, 

as many of us, I’m sure, have seen.

MR. MARTIN: Thanks.

MS. MILLER: Thank you. Brad?

MR. ADAMS: Thank you. You know, as I stated 

yesterday, I applaud the Department for introducing 668.43. 

I think it’s great. I think any disclosure as it relates to 

gainful employment is important, and I love that this 

applies to all students. I am curious, you know, you’ve got, 

I believe romanette (viii) and (ix), you’re getting your 

requests the median loan debt of students who completed the 

program and you’re requesting the median earnings of 

students that complete the program. It should be very easy, 

and it’d be very important to students, to just do the same 

calculation as in gainful employment. I don’t understand why 

that would be a big ask, and I don’t see why anybody would 

not support additional disclosures for students. And I would 

love the Department, they’ve slept on my comment from last 
Committee Meetings - 02/16/22 60

night, I’d love the Department to respond on where they are 

on that proposal. And I’d love someone else on the committee 

to speak up for providing this metric for all students, and 

the silence here actually surprises me; I thought we’d 

actually have more folks coming out in support for 

additional disclosures for students. Greg, any thoughts on 

the proposal from yesterday to just do the calculation here 

and then reference it in the GE statute?

MR. MARTIN: I don’t have an official response to 

that yet, but I want to make certain that what you’re asking 

for, what you would be proposing, is that the DTE rate 

calculation be applied to all programs, even if the 

consequence of the rate would only be for GE programs, 

correct? And that what would be disclosed here would be the 

same rate for all institutions, right? Okay.

MR. ADAMS: Yeah. Under the same programmatic 

formula, the same CIP code, same rules, just they wouldn’t 

lose Direct Loan eligibility. That’s the simple request. I 

mean, you’re obviously asking for the data, so just curious.

MR. MARTIN: Currently, Department’s position is 

that the DTE rates calculation will only be for those for GE 

programs. but I will take back the proposal that it be the 

same.

MR. ADAMS: One follow up to that, just curious, 

what’s the difference between this new website and the 

College Scorecard?

MR. MARTIN: Well, I think this website, first of 

all, I think it’s a little broader with what we can put on 
Committee Meetings - 02/16/22 61

it than the way the College Scorecard’s built. Remember, 

this website will also be used for warnings, so it provides 

us with an actual disclosure. The College Scorecard, of 

course, does disclose a lot of information about programs, 

but this a specific place for the Department to ensure that 

the disclosures are presented in a specific manner. And 

again, we’re also using it for warnings that have to be 

given to the student.

MR. ADAMS: Well, again, just at the close, 

Secretary Cardona and others, and Congress, even through 

this College Transparency Act bill, are pushing for more 

transparency, so I appreciate the Department doing this. I 

think the debt-to-earnings calculation would be an excellent 

addition to this website, and it would be beneficial for all 

students to be able to receive that information when looking 

at programs across industries at a CIP code basis. And 

again, I would love someone else on the committee to speak 

up for all students.

MR. MARTIN: I do want to point out also, before I 

move on from that about the website, that the Scorecard--

though I can’t say enough about it; it’s an excellent 

resource, but it’s not prescribed in regulations like this 

is, so this would actually build this into the regulation, 

and it is a website specific to these things. The Scorecard 

has a lot of other information on it. This is specific to 

these disclosures that we want to see made, and made in a 

uniform way. And I thank you for your comments, Brad.

MS. MILLER: Okay. Will, and then Jessica. 
Committee Meetings - 02/16/22 62

MR. DURDEN: Thank you, and I think, Gregory, to 

that point, there’s just that language there in that 

disclosure website: “the Secretary may include on the 

website, among other disclosures,” and we’d like to see 

whatever that information is. I don’t want to debate that 

right now, but whatever that information is that’s provided 

by all institutions, that’s clear and that that information 

displayed is not negotiable. So, we we’d see more explicit 

language on what that would be.

MR. MARTIN: Thank you.

MS. MILLER: Jessica.

MS. RANUCCI: This is a minor point, but on number 

(2), I guess I have a lot of concerns about manipulation, 

and I would like the Department to think about how to make

this as manipulation-proof as possible, including one idea I 

have is just separating the first sentence into two 

sentences. To say something like ‘the institution must 

provide a link to the website,’ period. ‘This link must be 

provided, like among other places,’ comma, ‘in the places 

that are listed here,’ or something. Just, you know, I think 

one of the problems we see is that institutions that don’t 

want to disclose costs are the ones least likely to have a 

very clear website page disclosing costs. And so, I wouldn’t 

want that to be a loophole here, but I defer to you on how 

best to effectuate that.

MR. MARTIN: Thank you. We’ll take that back.

MR. ADAMS: Yeah, so Greg, you said something there 

that I would just want to clarify here. You said the 
Committee Meetings - 02/16/22 63

Department would not calculate D/E rates for all programs, 

and I think you meant for eligibility purposes, but I’m just 

curious on, you mentioned you want to take that comment back 

to Department, but just curious on why that would be 

difficult here to do.

MR. MARTIN: Well, I don’t know as far as the 

difficulty would be, it’s the applicability that I think is 

at issue. And I mean, I have the comment; I will take it 

back and discuss it. At this point, I don’t know if I can 

speak to that in any other way. I’ll ask Steve if he has 

anything further he wants to say about it, as part of the 

Department.

MR. FINLEY: Yeah, we’ll definitely take it back for 

discussion.

MS. MILLER: Thank you. Barmak.

MR. NASSIRIAN: Very briefly, I applaud the 

Department for including this provision. I do think 

providing more accurate information to students is going to 

be very helpful. And, to whatever extent it has the 

authority and to whatever extent it can collect information 

without imposing undue burden on institutions, I think more 

disclosures are always better. So, I think this is this is 

certainly worthy of support.

MR. MARTIN: Thank you.

MS. MILLER: Thank you. Emmanual. 
Committee Meetings - 02/16/22 64

MR. GUILLORY: I want to say that I agree with the 

comments that my colleague Barmak just made, and also with 

what my colleague Will said, just making sure the language, 

among other disclosures that we give, if it’s possible, have 

a better sense of what those other disclosures are. But, 

parents and students and families should definitely know and 

be privy to all this information, so thanks.

MR. MARTIN: Thank you.

MS. MILLER: Thank you, Emmanual. Okay, I am not 

seeing any other hands for comment to the Department. Greg, 

should we take a temperature check on 668.43?

MR. MARTIN: Yes, please.

MS. MILLER: Okay. Show of thumbs, please, for 

668.43. Okay, I am seeing one thumbs down, two thumbs down. 

Okay, two thumbs down. Thank you.

MR. ADAMS: Rozmyn, I want to comment on my thumbs 

down.

MS. MILLER: Okay, Brad.

MR. ADAMS: Thank you. I just wanted to show the 

committee that I completely support this metric, and I’m 

only thumbs down based on the comment from Greg saying that 

the D/E rate would not be calculated here in the metric. But 

everything else associated with it, I’m completely fine with 

and would fully support on to go forward.

MS. MILLER: Thank you. Will, did you also want to 

comment on your thumbs down?
Committee Meetings - 02/16/22 65

MR. DURDEN: No thanks.

MS. MILLER: Thank you. Well, that concludes issue 

paper 3, gainful employment.

MR. MARTIN: One more thing before we move on, I do 

want to bring people’s attention to the last page here, 

where we have additional accounting metrics for 

consideration. These are not reflected in any of the

regulations, but I do want to, in the brief time we have 

left before lunch, introduce these because I think it is 

important and I don’t want anybody to miss this. On the last 

page of your issue paper for gainful employment, we talk 

about the accountability metrics for consideration. And can 

you pull it up, Vanessa? There they are. And so, we have an 

initial analysis suggesting some programs that would 

otherwise pass the D/E rates due to relatively low debt 

levels have very low earnings. Those students may have 

financed the program using their own funds, Pell Grants, 

student funds at low enough levels to pass the D/E rates, 

other federal aid, or the program may have been financed by 

employers or other private third parties. During our last 

session, several negotiators suggested adding an earnings 

metric based on the difference between the median earnings 

of program graduates and a threshold of earnings to measure 

earnings premium provided by that program, to address 

programs with low earnings. The threshold for passing 

earnings premium could be specified in several different 

ways, and we have some ideas here and invite comment on 

them. One is the median earnings of high school graduates in 

the same state the program is located. The other one is a 
Committee Meetings - 02/16/22 66

multiple of the federal poverty guideline. A third would be 

an estimate of full-time minimum wage work, where passing 

suggests that the median graduate earns at least that of a 

full time minimum wage worker. And lastly, an alternative 

way to address this with programs with low earnings could be 

to simplify the 2014 DTE framework by eliminating the annual 

debt-to-earnings metric, requiring only that programs pass 

the discretionary DTE rate. In the 2014 structure, an 

alternative debt-to-earnings rate allows those with lower 

earnings, especially those with median earnings below--I’m 

sorry, annual, not alternative--annual debt-to-earnings

below 150 percent to pass the GE framework as long as the 

debt payments were below 8 percent of their earnings. 

Eliminating the annual DTE would mean that programs with 

very low earnings but relatively low debt levels fail the GE 

metrics. Programs with median debt levels of zero, where 

fewer than half of their students borrow and very low 

earnings, however, continue to pass. So, we invite feedback 

on these possible additional accountability metrics.

MS. MILLER: Okay. Barmak.

MR. NASSIRIAN: Yeah, I just want to say that I 

strongly support the concept of putting in place a 

fundamental income threshold requirement. There is something 

on its face quite absurd about people participating in 

postsecondary education so that they can earn less than 

they’d have if they had not done so; it doesn’t make any 

sense to me. And I do think it will protect the lowest 

income graduates of these programs. So, I strongly support 

option 1, because I do think it puts in place some 
Committee Meetings - 02/16/22 67

fundamental protections for the lowest income graduates of 

these programs. I do think we need to be mindful of 

exceptional circumstances. There may be targeted programs 

for individuals who may have no other option if they did not 

participate in such GE programs. I think those can be 

accommodated on the basis of exceptional judgment. But in 

general, postsecondary education, particularly in gainful 

employment programs, is supposed to generate some kind of 

wage enhancement above and beyond a high school credential. 

Thank you.

MR. ADAMS: I just wanted to state I agree with what 

Barmak said, assuming this is applied to all programs. I 100 

percent support whatever metric the Department chooses, and 

I think 1 is a reasonable expectation. I mean, that was the 

first bullet point in Adam’s slide yesterday. That being 

said, if this is just another metric that would put someone 

out of business, it’s only applied to such a small subset of 

the programs out there, then I don’t think it makes sense. 

And you know, again, apply it to everybody, just do the 

right thing for students. I mean, they come to school to 

increase the economic output of their future. And that 

should be as simple as it is. Why else would you go to 

college? Thank you.

MS. MILLER: Barmak.

MR. NASSIRIAN: In the interest of full disclosure, 

I think we need to be mindful of the fact that whatever we 

negotiate here could potentially apply to the Jobs Act, 

which is pending and looks like it may become law. Those 

programs would be subject to GE, they would not be eligible 
Committee Meetings - 02/16/22 68

for loans, which means that the absence of any other 

additional metric could basically give them a kind of a 

pathological pass, which I assume we want to avoid here. 

Again, I really empathize with Brad’s concern about 

selective targeting of different sectors, but you really 

can’t write one equation that takes care of every variation 

on a theme. This would be the most effective consequence, 

imposing a high school earnings threshold would actually 

impact, I assume, those kinds of jobs programs. They would 

be probably entirely concentrated in one sector, not Brad’s 

sector, but be that as it may, I think we need to take care 

of the obvious. Sometimes people focus on the outcome 

instead of thinking a priori and analytically about 

something. Again, it makes no sense to me that somebody 

would participate in postsecondary education to make it less 

than they would have. I mean, that’s just so crazy to me 

that I don’t know why we’re debating it. Regardless of who 

it impacts, that’s just not a construct that we should that 

we should accommodate here.

MS. MILLER: Thank you, Barmak. We are at 12:02. 

Jamie, please. One last comment. You are on mute, Jamie.

MS. STUDLEY: Yeah, I didn’t have time to type it 

into the chat, just a brief placeholder to Barmak on that 

subject: every person who leaves banking to go to a teacher 

certification is reducing their income potential. That said, 

all of those options would be above a high school graduate, 

but I think that we don’t want to go unreasonably far or 

further than we need to answer the questions before us to 

focus all of educational outcomes on income increases. I 
Committee Meetings - 02/16/22 69

think you and I probably agree at the end of the day about 

these provisions, but I just don’t want to leave it unsaid 

that there are plenty of artists who are making a choice to 

go into another field, or teaching, or some other things 

that society doesn’t reward. And we have complex 

opportunities to eliminate substandard programs and 

impossible results while allowing people to make informed 

choices and institutions to know what the competition 

they’re facing is. But I just feel the need to not have this 

for non-gainful employment programs be entirely housed in 

‘hey, we educate to earn more money,’ some of us on this 

call might understand.

MS. MILLER: Okay. Thank you, Jamie. We are at 

12:04. So, Brad, last and final comment.

MR. ADAMS: Yeah, one final closing comment before 

lunch here is we just spent 10 minutes talking about a whole 

new metric that could impact GE, and I just don’t think 

that’s appropriate to have only about 10 minutes for a major 

issue like this. Thank you.

MS. MILLER: I’ll turn it over to Greg. Do we need a 

temperature check?

MR. MARTIN: No, I just wanted to bring this up. We 

do invite any comments or written comments from the 

committee on any of these items that we just discussed, so I 

do want to solicit that from everybody. And with that, I’ll 

turn it over to you for, I guess we’re at lunch.

MS. MILLER: Okay, yes, we are at lunch. I believe 

we finished gainful employment just in the nick of time. I 
Committee Meetings - 02/16/22 70

wanted to mention, though, that should any other issues come 

up against a time crunch, there may be an opportunity to 

revisit on Friday. With that said, I think we are ready for 

lunch. It’s 12:05. You have an hour. And with that, can we 

end the live?
Committee Meetings - 02/16/22 71

Department of Education, Office of Postsecondary Education

Zoom Chat Transcript

Institutional and Programmatic Eligibility Committee Session 

2, Day 3, Morning, February 16, 2022

From Ernest Ezeugo, Young Invincibles to Everyone:

Apologies for being late. Had slight internet issues.

From David Socolow (A) State agencies to Everyone:

apologies for joining late -- I’m here

From Kelli Perry - (P) Private Non-Profit Institutions to

Everyone:

Emmanual will be at the table for the remainder of 

Gainful Employment

From Sam Veeder (she/her/hers) to Everyone:

David Peterson will be at the table representing 

Financial Aid Administrators for the remainder of gainful 

employment.

From Jessica Ranucci (A)- Legal aid to Everyone:

I think that gainful employment is an extremely important 

accountability imposed by Congress to protect students and 

taxpayers (not, in the first instance, institutions and their 

employees’ jobs). I support the Department’s efforts to 

regulate this critical accountability measure using, as a 

starting point, the 2014 rule, which was made through hundreds 

of negotiator-hours, including some of the same negotiators at 

the table here.
Committee Meetings - 02/16/22 72

From Yael Shavit State AGs (A) to Everyone:

+1 Jessica

From Carney King (A) Students and Student Loan Borrowers to

Everyone:

I agree with Jessica

From Carolyn Fast (P) Consumer advocates/Civil Rights to

Everyone:

+1 to Jessica’s comment.

From Amanda Martinez (P-Civil Rights) to Everyone:

+1 Jessica

From Adam Welle, State AGs (P) to Everyone:

Yael is coming to the table for state AGs thanks.

From Ernest Ezeugo, Young Invincibles to Everyone:

+1 Yael

From Jaylon Herbin (A) Consumer and Civil Rights to Everyone:

+1 Yael’s concerns

From Ernest Ezeugo, Young Invincibles to Everyone:

I think Yael is right that considering that isn’t the 

intention, it might be helpful to clarify such in the text.

From Ernest Ezeugo, Young Invincibles to Everyone:

Carney King will be coming to the table for comment.
Committee Meetings - 02/16/22 73

From Debbie Cochrane (P), State agencies to Everyone:

+1 to Yael. Using the attestations in that way would be 

akin to turning the GE rule into "buyer beware" which is at 

odds with the statute.

From Jaylon Herbin (A) Consumer and Civil Rights to Everyone:

I will be joining the table for Carolyn.

From Amanda Martinez (P-Civil Rights) to Everyone:

+1 on improving (2)(C) to provide students more specific 

information on whether that institution previously made 

articulation agreements with other schools or programs

From Jessica Ranucci (A)- Legal aid to Everyone:

Eileen Connor of the Project on Predatory Student Lending 

spoke last night at public comment about having seen fraud 

arising from institutions closing programs that failed GE and 

opening new, similar programs in which students can continue, 

in order to ensure a continued stream of Title IV funds. While 

I appreciate Brad’s concerns regarding closing programs, I 

think that allowing a school to open a similar program after 

failing GE could really open up opportunities for abuse, and I 

encourage the Department to ensure that regulations do not 

allow institutions to manipulate GE in this manner.

From Jaylon Herbin (A) Consumer and Civil Rights to Everyone:

Carolyn will be joining the table.

From Carney King (A) Students and Student Loan Borrowers to

Everyone:
Committee Meetings - 02/16/22 74

Ernest is coming back to the table for Carney

From Barmak Nassirian (A) Servicemembers & Vets to Everyone:

If you start with the assumption that failing schools are 

all good, keeping the failure secret makes a lot of sense.

From Carney King (A) Students and Student Loan Borrowers to

Everyone:

Speaking for students — I am less concerned about the 

collateral damage for a small portion of “good schools” that 

end up in this situation

From Jessica Ranucci (A)- Legal aid to Everyone:

+1 Carney

From Ernest Ezeugo (P) Student & Loan Borrowers to Everyone:

Agreed, Carney.

From Carney King (A) Students and Student Loan Borrowers to

Everyone:

+1 Yael

From Carolyn Fast (P) Consumer advocates/Civil Rights to

Everyone:

+1 Ernest

From Brad Adams (P - Proprietary Institutions) to Everyone:

i do not have any comments in 668.408. any reason to vote 

no?
Committee Meetings - 02/16/22 75

From Brad Adams (P - Proprietary Institutions) to Everyone:

or sideways? if i vote no i will need something to say.

From Brad Adams (P - Proprietary Institutions) to Everyone:

sorry

From Brad Adams (P - Proprietary Institutions) to Everyone:

mike is coming to the table for section 408. I do not 

have anything else to say on 407

From Beverly Hogan Primary/MSI to Everyone:

+1 to Yael. Good actors will communicate with the 

students in a proactive way similar to the sanctions 

institutions might receive from accrediting agencies. Students 

benefit and are loyal to transparency.

From Jessica Ranucci (A)- Legal aid to Everyone:

I heard the expert who spoke yesterday state that the 

academic research supports the idea that outcomes for GE 

programs are largely driven by the programs, not by the 

characteristics of the students who enrolled.

From Jessica Ranucci (A)- Legal aid to Everyone:

Unless I misunderstood?

From Brad Adams (P - Proprietary Institutions) to Everyone:

i am ready to come back on video

From Beverly Hogan Primary/MSI to Everyone:
Committee Meetings - 02/16/22 76

I have a question

From Barmak Nassirian (A) Servicemembers & Vets to Everyone:

I would again urge the Department to require some basic 

upfront assurances from schools offering GE programs that 

their proposed programs are needed in the marketplace and 

would be likely to pass the GE criteria on the basis of their 

cost and projected wages

From Debbie Cochrane (P), State agencies to Everyone:

+1 to Barmak’s suggestion.

From Yael Shavit State AGs (A) to Everyone:

+1 to Barmak

From Ernest Ezeugo (P) Student & Loan Borrowers to Everyone:

+1 Barmak

From Jessica Ranucci (A)- Legal aid to Everyone:

+1 Barmak

From Emmanual Guillory (A-PNPs) to Everyone:

+Barmak

From Emmanual Guillory (A-PNPs) to Everyone:

+1

From Brad Adams (P - Proprietary Institutions) to Everyone:
Committee Meetings - 02/16/22 77

I agree with Barmak’s point in the chat but i think we 

already do what he is suggesting when we match the cip code to 

the SOC.

From Beverly Hogan Primary/MSI to Everyone:

+1 to Barmak

From Carolyn Fast (P) Consumer advocates/Civil Rights to

Everyone:

+1 to Barmak

From Barmak Nassirian (A) Servicemembers & Vets to Everyone:

I support more disclosures--and more detailed 

disclosures--if the Department has the statutory authority and 

if the collection of additional data does not impose undue 

burden on institutions.

From Beverly Hogan Primary/MSI to Everyone:

+1 to Barmak

From Brad Adams (P - Proprietary Institutions) to Everyone:

+1 Barmak

From Barmak Nassirian (A) Servicemembers & Vets to Everyone:

The Department may have additional tools for generating 

actionable information for consumers under the College 

Transparency Act, if it is enacted into law.

From Jamienne Studley (P) Accrediting Agencies to Everyone:
Committee Meetings - 02/16/22 78

i want to reiterate that there was no response about what 

a program is for these purposes and i hope the Dept will 

address that. I assume that decisions about what metrics to 

use and how they’ll be defined will be worked out later.

From Yael Shavit State AGs (A) to Everyone:

+1 to Barmak

From Marvin Smith (P) 4 Year Publics to Everyone:

+1 to Jamie

From Ernest Ezeugo (P) Student & Loan Borrowers to Everyone:

+1 Barmak, I also support an earnings threshold

From Jessica Ranucci (A)- Legal aid to Everyone:

+1 Barmak

From Amanda Martinez (P-Civil Rights) to Everyone:

Support the principle that additional education beyond 

high school should provide a gain in earnings that ensures a 

path toward economic mobility

From Brad Adams (P - Proprietary Institutions) to Everyone:

+1 Barmak

From David Socolow (A) State agencies to Everyone:

+1 to Jamie’s point about defining a "program" especially 

for defining in 668.43(d)(1)(i) the "primary occupation" a 

program prepares students to enter
Committee Meetings - 02/16/22 79

From Beverly Hogan Primary/MSI to Everyone:

+1 to Barmak

From Barmak Nassirian (A) Servicemembers & Vets to Everyone:

Jamie is right!

From Jamienne Studley (P) Accrediting Agencies to Everyone:

That’s the former college president talking.

From Barmak Nassirian (A) Servicemembers & Vets to Everyone:

We have three weeks to submit written comments

From Beverly Hogan Primary/MSI to Everyone:

Ideally and realistically, students should be better off 

across a number of spectrums with postsecondary education.

From Jamienne Studley (P) Accrediting Agencies to Everyone:

+1 Beverly