MEMORANDUM

To: U.S. Department of Education

From: David J. Socolow, alternate negotiator for State Higher Education Executive Officers, State 

Authorizing Agencies, and/or State Regulators of Institutions of Higher Education and/or Loan 

Servicers

Date: February 1, 2022

Re: Ability to Benefit Proposal

In 2014, Congress enacted a new iteration of the Ability to Benefit (ATB) provision in section 484(d) of 

the Higher Education Act (HEA), which enables students who are not high school graduates to become 

eligible for HEA title IV student aid under certain narrowly-tailored circumstances. This version of ATB is 

restricted to students participating in eligible career pathway programs because Congress recognized 

that certain adult students who lack a high school diploma or its equivalent can achieve career and 

educational success through a robust, evidence-based Integrated Education and Training (IET) program

that is coordinated with a career pathway program. 

Congress clearly intended the post-2014 ATB provision to be implemented through partnerships 

between the workforce development system and title IV institutions, as evident by the enactment of the 

identical seven-part statutory definition of a “Career Pathway” in both HEA section 484(d)(2) and section 

3 of the Workforce Innovation and Opportunity Act of 2014 (WIOA). As detailed in a recent IES research 

and practice guide, IET programs (such as I-BEST) work within a career pathway by coordinating WIOA 

title II adult basic education through dual enrollment and contextualization with occupation-specific, forcredit programs offered by an institution of higher education participating in HEA title IV. In 2018, 

Congress further reinforced the intent for career pathways to build alignment through partnerships 

among multiple systems, when the same definition of career pathways from HEA and WIOA was added 

to the Strengthening Career and Technical Education for the 21st Century Act (Perkins V).

The Department’s regulations should honor the intent of the post-2014 definition of ATB by promoting 

contextualized and coordinated WIOA title II and title IV coursework within an IET, rather than standalone components of title IV programs and separate literacy and numeracy education. The Department’s 

approval of eligible career pathways for the purposes of ATB title IV eligibility should enable adults to 

gain basic skills through career pathway-aligned methods connected to their career training, by 

embedding WIOA title II literacy and numeracy instruction into the occupational skills taught by a title IV 

training component of an IET program. Making these types of robust IET programs a requirement for 

ATB will help many low-income adult students without a high school diploma or its equivalent receive 

Pell Grants to support effective training that will boost their career prospects. 

I applaud the Department’s proposal to “eliminate the requirement that first-time applicants for the 

State process must demonstrate past performance metrics and clarify quality controls for the initial 

approval period.” By approving State processes for an initial two-year trial period, the Department can 

foster State innovations that implement robust career pathways that incorporate evidence-based IET 

programs to give adults without a high school diploma a strong chance of success other than by passing 

an ATB test or finding another way to pay for 6 credit hours or equivalent coursework. While it would be 

appropriate to cap the number of students served in an initial two-year trial period, the Department 
should encourage innovation and experimentation; I urge the Department not to establish a limit on the 

number of different career pathway programs that may be included in the initial application. 

In the same vein, the initial quality metric for the first two-year approval of a State process should be 

the Department’s stringent evaluation of the degree of fidelity to an evidence-based IET model that is 

exhibited by the career pathway programs included in a State’s application. Such an evaluation would 

enable the Department to determine the “effectiveness” of any new programs that have not yet been 

implemented, in keeping with the requirement of HEA section 484(d)(1)(A)(ii): “In determining whether 

to approve or disapprove such process, the Secretary shall take into account the effectiveness of such 

process in enabling students without secondary school diplomas or the equivalent thereof to benefit from 

the instruction offered by institutions utilizing such process.” 

To support these goals, please accept the following suggestions for revising and improving the

Department’s proposed ATB regulation, summarized below and shown in the redline that follows:

1. Revise the ATB State Process approval language in proposed section 668.156, to clearly crossreference section 668.157, to make the Department’s approval of a State Process contingent on 

the Department finding that the career pathway programs included in the State Process actually 

meet all the criteria for an eligible career pathway program (ECPP) as defined in section 668.157 

(as revised per the items below). The Department should determine that every one of the 

Career Pathway programs in a State process complies with the definition of ECPP in 668.157, as 

a condition of giving a State a full 5-year approval of their State ATB process.

2. For the purpose of ATB title IV eligibility, require that an eligible career pathway program (ECPP) 

must have instruction delivered through a Department-defined IET. To provide greater clarity, 

the suggestions in redline below recommend including a cross-reference to the Department’s 

existing WIOA title II regulatory definition of an IET (34 CFR 463.35). For instance, the 

Department should not approve a career pathway program for ATB purposes if its title IV 

educational component is disconnected from a separate high school equivalency class. As a 

practical matter, it would be ideal for the Office of Postsecondary Education to work with the 

Office of Career, Technical, and Adult Education to conduct the Department’s review and 

approval of ECPPs for ATB eligibility purposes.

3. Require authentic collaboration between title IV institutions and the WIOA title II adult 

education and career and technical education systems. To reinforce this requirement, each ATBeligible ECPP should be required to show that it prepares individuals for an in-demand 

occupation that is defined on a WIOA or Perkins plan. The Department should not allow title IV

institutions to simply assert that their program prepares students for “demand occupations” 

based on their own separate research. The Department should not approve as an ECPP any 

“one-off” programs that are not aligned with the WIOA title II and Perkins CTE systems. 

4. Clarify in paragraph (b) at the end of section 668.157 that the Department shall officially verify 

that each career pathway program meets all the requirements of the WIOA title II & HEA title IV 

Partnership (including the IET requirement and alignment with state workforce or Perkins CTE 

plans).
Suggested changes to the Department’s proposed ATB regulations

§ 668.156 Approved State Process. 

(a)

. . . . .

(2) A State’s application for approval of its State process must include –

(i) The institutions located in the State included in the proposed process, which need not be all 

of the institutions located in the State;

(ii) The requirement that participating institutions must meet to offer eligible career pathway 

programs through the State process;

(iii) a certification that, as of the date of the application, each proposed career pathway program 

intended for use through the State process constitutes an “eligible career pathway program” 

under § 668.2 668.157 of this part; and 

(iv) The criteria used to determine student eligibility for participation in the State process.

(3) Before approving the State process, the Secretary will verify that a sample of the proposed eligible 

career pathway programs comply with the definition of an “eligible career pathway program” under § 

668.2 668.157 of this part.

. . . . .

(e) After the initial two-year period described two-year period described in paragraph (b) of this section, 

the State must reapply for continued participation and, in its application –

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

paragraph (f) of this section that is within 95 percent of the success rate of students with high school 

diplomas;

(2) Demonstrate that the State’s process continues to satisfy the requirements in paragraphs (a), (c), and 

(d) of this section;

(3) Demonstrate that every program included in the State’s process complies with the definition of an 

“eligible career pathway program” under § 668.157 of this part; and

(34) Report information to the Department on the enrollment and success of participating students by 

eligible career pathway program and by race, gender, age, economic circumstances, and educational 

attainment, to the extent available.

. . . . .

Commented [DS1]: The federal review of ECPPs for ATB 

should be based on the more granular language in 668.157, 

including the proposed revisions to that section below

Commented [DS2]: Note: ED is proposing to review the 

eligibility of only a sample of the CP programs included in 

the State process for the initial 2-year approval. If ED 

conducts only this limited review at the outset, as noted 

below, ED should subsequently validate the eligibility of all 

of the CP programs included in the State process when 

considering an application for a State process to receive 5-

year approval of continued participation pursuant to 

proposed 688.156(e) and (i).

Commented [DS3]: The federal review of ECPPs for ATB 

purposes should be based on the more precise language in 

668.157, including the proposed revisions to that section 

below

Commented [DS4]: The initial 2-year approval in 

668.156(a)(3) merely requires ED validation of eligibility of 

“a sample” of the proposed eligible career pathway 

programs included in the State process. When considering a

subsequent 5-year continued approval based on the 

application submitted pursuant to proposed 668.156(e), the 

Department should determine whether ALL of the CP 

programs included in the State process are in compliance 

with the definition of an “eligible career pathway program” 

under § 668.157.

Commented [DS5]: The success rate metrics should be 

disaggregated by ECPP. This will allow calculations of 

whether some ECPPs included in the State process do 

achieve the success rate standard under (e)(1), even if other

career pathway programs do not meet the standard. Could 

the Department please clarify whether the intent is to 

completely “withdraw approval of a State process” under 

668.156(j)(1)) if even only one of the ECPPs fails the success 

rate metric? Would the Department consider instead 

providing partial approval of a State process for the 5-year 

continuation period with respect ONLY to those ECPPs that 

DO meet the success rate measure?
§ 668.157 Eligible Career Pathway Program. 

(a) An institution demonstrates to the Secretary that a student is enrolled in an eligible career pathway 

program, as required under 668.156(a)(3) of this part, by documenting a partnership between adult 

education and a postsecondary institution providing that --

(1) The student has enrolled in or is receiving both--

(i) An eligible postsecondary program as defined in § 668.8 of this part; and

(ii) WIOA Title II adult education and services Coursework, training, or other support services 

that enable an individual to attain a high school diploma or its recognized equivalent.

(2) The program aligns with the skill needs of industries in the State or regional labor market in which 

the institution is located, based on research the institution has conducted, includingthe occupations 

identified as having the greatest hiring demand in the State or regional labor market as documented in--

(i) Government reports identifying occupations with the greatest hiring demand in the State or

regional labor market

(i) the State Plan required under section 102(b)(1)(B) of the Workforce Innovation and 

Opportunity Act; or 

(ii) the comprehensive local needs assessments required under section 135(c) of the Carl D. 

Perkins Career and Technical Education Act; or 

(ii) Surveys, interviews, meetings, or other information obtained by the institution regarding the

hiring needs of employers in the State or regional labor market.

(3) The skill needs described in paragraph (a)(2) of this section align with the specific coursework and

postsecondary credential provided by the postsecondary program or other required training;

(4) The program provides career counseling services that assist students in obtaining jobs aligned with

skill needs described in paragraph (a)(2) of this section, and identifying identifies the individuals 

providing the career counseling services; 

(5) The WIOA title II adult education described in paragraph (a)(1)(ii) of this section is offered through an 

integrated education and training program as defined by the Department under 29 U.S.C. 3272(11) and

34 CFR 463.35, which provides coordinated education and services concurrently with and in the same 

context as workforce preparation activities and training for a specific occupation or occupational cluster;

(6) The program is designed to lead to a valid high school diploma as defined in § 668.16(p) of this part 

or its recognized equivalent.

(b) For eligible career pathway programs that do not enroll students through a State process as defined 

in § 668.156 of this part, the Department will verify that the partnership between adult education and 

the postsecondary institution meets the criteria in paragraph (a) of this section to determine verify the 

eligibility of eligible career pathway programs for title IV, HEA program purposes. The Secretary provides 

an institution with the opportunity to appeal any adverse eligibility decision.