Committee Meetings - 03/15/22 1 

DEPARTMENT OF EDUCATION

OFFICE OF POSTSECONDARY EDUCATION

INSTITUTIONAL AND PROGRAMMATIC

ELIGIBILITY COMMITTEE

SESSION 3, DAY 2, AFTERNOON

March 15, 2022

On the 15th day of March, 2022, the following 

meeting was held virtually, from 1:00 p.m. to 4:00 p.m., 

before Jamie Young, Shorthand Reporter in the state of 

New Jersey. 
Committee Meetings - 03/15/22 2 

1 PROCEEDINGS

2 MS. MILLER: Welcome back, everyone. I hope you had a 

3 really good lunch. We have a lot to get through this 

4 afternoon. So I want to remind you of the protocol's; three 

5 minutes per negotiator or any new information that you have to 

6 offer the Department. We are in week three, so that means all 

7 proposals previously submitted have been considered. And what 

8 the Department is looking for today and this week is new 

9 information that would get you to consensus. And you may hear 

10 the facilitators remind you of that several times, but that is 

11 to move the process forward. Okay. Alright, so with that, I 

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

13 MR. MARTIN: Thank you, Rozmyn. Before I do that, I 

14 wanted to go back and clean up some things from the previous 

15 from this morning. So the first thing is, with respect to the 

16 cohort periods, there were some questions about the cohort 

17 years, what is what and so, I'll give you the proper 

18 reference. We're back in def, going back to definition 600 

19 668.402 and that's under cohort period. And under cohort 

20 period, you see one for the two-year cohort and two for the 

21 four-year. But the principles are the same. I think part of 

22 the problem is that people are, and I'm a prime offender, are 

23 wedded to the '14 the way that was done in '14. And if you 

24 wrap your head around that and then and then you're stuck in 

25 that and in that mode where I am, sometimes it gets this gets 

26 a little more confusing, but what's presented here is correct. 

27 So assessing program eligibility for the award year '22 to '23 

28 will be calculated in '21. So the two-year, if we look at the 
Committee Meetings - 03/15/22 3 

1 earnings data that we would be using, we're using 18, we're 

2 using calendar years '18 and calendar years '19. And the use 

3 of both years is a departure from what we did in '14 with the 

4 '14 year. And you'll remember that what we did in '14 was if I 

5 just could give you an example. So if you're looking at a 

6 cohort where you had 115 students in '16, we would have used 

7 the earnings only for one year. And what we did, we only used 

8 one year earnings for both years in the cohort. So we would 

9 have used earnings in '18. And so remember that the criticism 

10 at the time was that for those in the cohort for '16, those 

11 students in the cohort who were from '16 would have been 

12 measured with a lot fewer, a fewer shorter period of time, as 

13 I want to say, for earnings than would those in '15. So it 

14 wasn't consistent. So what we did here, if you look at what 

15 we've done now, you've got starting in the latest year for 

16 which we have earnings is '19. And if you count back the four 

17 years, you get the '15, three years you get the '16, those are 

18 your third and fourth years. And so what we do is to account 

19 for both earnings years rather than just use the '18 and apply 

20 it to everybody, we take '18 and '19 and we are, it's still 

21 all in one cohort. So the earnings in '18, remember Brian's 

22 presentation this morning, the earnings in '18 will be 

23 inflated to '19 numbers and then the median can be done in 

24 aggregate. So that's the explanation there. I also wanted to 

25 return to the question we had about the earnings threshold and 

26 what the earnings were. Whether I mean, whether for the 

27 earnings we used just full-time or other, we don't there's no 

28 distinction made between whether somebody is full-time or 

29 part-time. We don't have any way of doing that. So it would be 

30 all earners not just full and part-time. I mean, not just 
Committee Meetings - 03/15/22 4 

1 full-time, rather full and part-time we would use. Other 

2 questions we had as far as to the question of whether the 

3 Department would consider either removing GE from this from 

4 this table. The answer to that is no, we will not consider 

5 that, and neither can we consider, would we consider adding 

6 another week to the negotiation schedule. So everything will 

7 remain as-is. And with that, if Rozmyn doesn't have anything 

8 else, I'll move on to, [audio] remember where we were. We 

9 finished 403. And in 404, yeah we're moving up to 404, 

10 calculating D/E rates, so I'll have Renee pull that up. And 

11 the only thing here, if we move down to 404 B1 romanette two. 

12 We've corrected a cross reference there. As you can see, it's 

13 the only change to the only change in that, area and then 

14 moving to, and that, I believe, is it for, let me just make 

15 sure. Right. That is it for, oh yeah, moving on to, let's move 

16 on to 404 E. And here we have clarified in E that, this is on 

17 page eight and again, we're in 668.404 E under exclusions. And 

18 we have clarified here that students in qualifying approved 

19 prison education programs are excluded from the calculation. 

20 You can see that reflected in E, in E5. So I'm going to move 

21 on to 405 because there wasn't much in 404 just specific 

22 technical things. So let's move on to a discussion of 405. 

23 After we finish 405, I'll open it up for discussion. This is 

24 calculating the earnings threshold measures and this section 

25 explains the procedures for calculation of the earnings 

26 threshold rates. The Secretary will calculate the rates based 

27 on whether the median whether the median earnings of the 

28 program exceed the earnings threshold. Specifically, will 

29 obtain the earnings data. The earnings threshold will be 

30 specified by the Secretary of the Federal Register Notice. In 
Committee Meetings - 03/15/22 5 

1 general, the same exclusions apply to the earnings threshold 

2 measure as to the D/E rates and the earnings threshold measure 

3 will not be calculated in the same circumstances. So let's 

4 take a look at 405. This is new for a calculation of the 

5 earnings of the earnings threshold. And except as provided in 

6 paragraph D of this section for each award year, the Secretary 

7 assesses the earnings threshold measure for a GE program by 

8 determining whether the median annual earnings of the Title IV 

9 HEA recipients who completed the program exceeded the earnings 

10 threshold. Move to the median annual earnings. And that is the 

11 Secretary obtains from a federal agency with earnings data 

12 under 668.406, the most currently available median and annual 

13 earnings median annual earnings of the students who completed 

14 the program during the cohort period and who are not excluded 

15 under paragraph C of this section. The Secretary uses the 

16 median annual earnings of students with a high school diploma 

17 or GED using data from the Census Bureau to calculate the 

18 earnings threshold described in 668.402. Notice the 

19 definition. The Secretary determines the earnings threshold 

20 and publishes the thresholds annually through a notice in the 

21 Federal Register. And the exclusions are the same as for D/E, 

22 so I'm not going to walk through all of those all of those 

23 exclusions. In D, the earnings threshold not measured. The 

24 Secretary does not measure the earnings threshold measure for 

25 a GE program. Under this section, if, after applying the 

26 exclusions in paragraph C of this section, fewer than 30 

27 students completed the program during the two-year or four28 year cohort period, except as provided in paragraph E. And the 

29 federal agency with earnings data does not provide the median 

30 earnings for the program as provided in paragraph B. So go 
Committee Meetings - 03/15/22 6 

1 down to E and we see that we do have a small programs rate 

2 applicable here. For each year the Secretary determines the 

3 total number of students who complete the small programs 

4 within a credential level at the institution during the four5 year cohort period, after making the exclusions in paragraph C 

6 of this section and if that total is 30 or more students, it 

7 will calculate a small program rate for those small programs 

8 under the provisions of this section, which is 405. So I'll 

9 stop there since that's the end of the section and open the 

10 floor for comments and discussion.

11 MS. MILLER: I see Anne and then Brad.

12 DR. KRESS: So thank you for getting the information 

13 about the income and especially as we went into the earnings 

14 threshold. And so I'm going to come back to that. And I do 

15 think you know one thing I want to put out there is that there 

16 should be accountability standards. And I think this paper is 

17 very much unlike the others that we've seen in that in week 

18 one we didn't have redline text. What we had was a series of 

19 questions about how Gainful Employment should be implemented 

20 now that it's being brought back. And I think there was a 

21 pretty clear message at that first discussion that the 2014 

22 standards have been tested, they've been legally challenged, 

23 they withstood that. And so, if I recall correctly, there was 

24 a real consensus that those standards would be supported. And 

25 I know that the Department made a decision not to stick with 

26 the 2014 standards and hold, but to add an earnings threshold 

27 measure. And I think as we've seen this morning, there are 

28 lots of questions about how that's being calculated, how it's 

29 going to be, how it will be applied. You know, I'm concerned 
Committee Meetings - 03/15/22 7 

1 I'll just put out there that unfortunately you know that is 

2 going to become the object of this discussion, more so than 

3 the much needed accountabilities that Gainful Employment 

4 carries with it. And so I'll just put a plug in again, as we 

5 did in week one for return to the 2014 standards. They were in 

6 place for a very short period of time, so we didn't even have 

7 a real ability to understand their full impact and how it 

8 benefited students. And I'm afraid that may get lost in this 

9 discussion. 

10 MR. MARTIN: Thank you, Anne. 

11 MS. MILLER: Thank you, Anne. Brad.

12 MR. ADAMS: I've got a couple remarks regarding 

13 earnings so I can get back in line if I go through the three 

14 minutes. But I'll just start with you know this doesn't appear 

15 to be much of a negotiating rulemaking. I will tell you, it 

16 seems like it's just a bunch of listening to one or two people 

17 talk and comments being considered but not really being 

18 considered. So I guess that's just the way to get through this 

19 process by the end of the day today, as the goal as stated 

20 earlier. So a quick question. We were able to actually run 

21 through this spreadsheet that was sent out five minutes before 

22 our meeting started this morning and looked at over the 1,277 

23 failing programs, about 574 of them, or 45 percent, are in 

24 cosmetology. In other words, half of the programs fail based 

25 on this new metric in one program area. Of the of the 

26 programs, that's 130,000 students a year, according to the 

27 data in the spreadsheet. So I've just got a question here. 

28 Doesn't, doesn't that concern anyone on this committee? 

29 Doesn't that raise a red flag? Where are we going to get 
Committee Meetings - 03/15/22 8 

1 haircuts? I still want to get haircuts, honestly. I mean, 

2 let's think about that. Are we just shutting down all 

3 cosmetology schools in the country? Look, I know there was a 

4 lawsuit. It was referenced previously about underreported 

5 earnings. I know they graduate a majority of their students 

6 being female. And there's ways discrimination issues in 

7 America. So what are we going to do when we don't have a 

8 cosmetology program left? You know, it's just a question for 

9 the Department. Is it considered you know this alternate 

10 earnings appeals process that was taken away that at least 

11 listen to the idea that maybe some wages and tips were not 

12 reported. But I mean, just honest question. If we shut down 

13 half of the cosmetology schools around the country, what's 

14 plan B for the labor market?

15 MR. MARTIN: Well, I don't feel I'm in a position to 

16 answer a rhetorical question like that. It's certainly not the 

17 intention of the Department to shut down the cosmetology 

18 programs. It is in the earnings with the earnings threshold, 

19 the earnings threshold measures instances where while the debt 

20 accrued by students might not be as much, but the earnings are 

21 still. But the earnings the earnings for the program are so 

22 are so small that it doesn't that it was not in the end worth 

23 the student's while to attend as far as measured by earnings, 

24 if the earnings don't aren't any more than they would have 

25 been had the student only completed a high school education or 

26 a GED. And that's what that's what the earnings threshold does 

27 address.

28 MR. ADAMS: Again, I mean, we should have put a 

29 cosmetology expert on this. I don't have a program here, and 
Committee Meetings - 03/15/22 9 

1 we had the opportunity to do so. But it is frustrating that we 

2 knowingly are putting in a rule that is really targeting one 

3 program. And I just had that for the record, and I'll come 

4 back in line for the rest of my comments.

5 MS. MILLER: Thank you, Brad.

6 MR. MARTIN: I'll speak, one more, I mean, we have 

7 already addressed the issue of reported earnings. We've 

8 already stated the Department's position that although it is 

9 true that in certain industries people might not report their 

10 income, they are supposed to. It's the law that you report 

11 your that you report all your earnings, including your tipped, 

12 your tipped earnings. Most all federal all federal programs on 

13 which benefits are based are based on reported earnings, not 

14 those that are remain under the table or remain unreported, 

15 because it just happens to be the culture of a particular 

16 profession or something. So we're not inclined to take that 

17 into account and in probably getting a federal regulation.

18 MR. ADAMS: As a follow up to your point, Greg, I did 

19 want to ask, given the lack of an alternative earnings appeals 

20 process, did the Department consider anything else for 

21 programs like that around repayment rates or default rates or 

22 look at anything? Or are we just looking at comparing 

23 ourselves to high school average high school earners that are 

24 you know maybe different demographic across the country?

25 MR. MARTIN: Well, you know, I've just going back to 

26 what I said, the measure is looking at in a program where 

27 earnings are low whether or not there was any benefit to the 

28 program over having simply attended high school. And that's, I 
Committee Meetings - 03/15/22 10

1 think, a very applicable, applicable measure. It's certainly 

2 not the only one that could be used. I agree with that. But 

3 the Department has determined that that is the most 

4 appropriate measure to use for this and to get at that, to get 

5 at that very real problem of programs that produce graduates 

6 with exceptionally low earnings.

7 MS. MILLER: Steve, I saw your hand up. Did you want 

8 to respond?

9 MR. FINLEY: I had nothing to add to Greg's remarks 

10 just now. I thought I did, but he covered what I was going to 

11 say.

12 MS. MILLER: Thank you. Johnson.

13 MR. TYLER: Yeah. Thank you. So on the, on putting in 

14 the threshold, I really applaud this. And I have spent some 

15 time looking at the data like Brad did, and the cosmetology 

16 issue jumps out at me as well. But I found some interesting 

17 data related to it that you can see in there. And I got to 

18 start out by saying I come from a place where I have many 

19 clients who went to schools, cosmetology schools, told that 

20 they'd have get an entry into the business and never did. And 

21 they're now working retail, working as home attendants, doing 

22 stuff like that. One of the data points that's in this thing 

23 is how many graduates there are every year from cosmetology 

24 schools that fail this earning metric. It's 134,000. And then 

25 if you look and I'm thinking, well, that's a lot of people. 

26 How many barbers and hairdressers are there in the country? I 

27 mean, the Department of Labor says there are 640,000. So every 

28 two years you're getting an influx of all these people trying 
Committee Meetings - 03/15/22 11

1 to set up work in this this business. And they're not making 

2 money. And it's not because, I mean, I no longer think it's 

3 because they're taking it all in cash and not reporting it. I 

4 think it's a very competitive industry and people could be 

5 going into fields that are much more lucrative through Gainful 

6 Employment. I looked at, for example, LPRs, licensed 

7 practicing nurses. Now that obviously requires a higher

8 aptitude in terms of book learning and stuff like that than 

9 being a barber, which is more physical skill, but it's a 

10 different skill set. There, they graduate 16,000 students 

11 every year for that, and there's a 60,000 demand every year 

12 going up. So they're choices that people can make to go into 

13 right career paths that Gainful Employment is designed to 

14 provide a better path. And I find this data really useful, not 

15 just confusing. I only had one day to look at it. I'm not a 

16 numbers guy, but it was very useful and it confirmed a lot of 

17 the thoughts that I had had before with actual hard data 

18 supporting the ideas behind Gainful Employment. So I applaud 

19 the Secretary for doing this.

20 MS. MILLER: Thank you, Johnson. Jamie. 

21 MS. STUDLEY: Thank you. In GE, we tend to focus on 

22 program closure, but the experience under the prior rule was 

23 actually that some of the other effects are at least as 

24 important in public policy terms, and that's that providers 

25 have the ability to consider the cost of the program to the 

26 student. And whether that's another way to affect the ratio at 

27 the end is what the student has to pay. And while this is an 

28 indirect measure, if it is the case that we need people in 

29 these fields, then states which are setting the licensure 
Committee Meetings - 03/15/22 12

1 rules for these fields and the number of hours may be in a 

2 position to reconsider whether those are appropriately keyed 

3 to the public safety that they are supposed to serve and 

4 whether the program length is part of what's causing the 

5 equation. Johnson certainly makes a good point about an 

6 individual choice that may follow from having accurate and not 

7 misleading advertising and public perception and so forth. But 

8 just when you think about other ways to achieve having 

9 programs, if they are needed and I need haircuts too, 

10 including at this moment, but the cost of the programs there, 

11 the number of programs and the perception that's created by 

12 people going to them can also be altered by a good rule that 

13 addresses those for the protection of students, so that where 

14 the market and information may have failed, that there are 

15 other ways to get to better results for students who are 

16 investing in career success. Thank you.

17 MS. MILLER: Thank you, Jamie. Brad and then Barmak.

18 MR. ADAMS: I just want to remind everybody that you 

19 know we're talking four digit CIPs now, not six digit dips20 CIPs. So the numbers Johnson just used are not accurate 

21 because they don't include makeup artists, they don't include 

22 facial treatments. They don't include nail technicians, they 

23 don't include other areas. There are looks like about 15 or 16 

24 different programs that roll up into the CIP code 1204, so 

25 it's not just cosmetology. And again, we're looking at the 

26 four digit instead of the six digit, I want to call that out. 

27 You know, I think it's important to point out here and you 

28 know I'll just call out the elephant in the room is you know 

29 the US Gates and you can find this information anywhere you 
Committee Meetings - 03/15/22 13

1 search, just published some information that basically says 

2 that minority students, in particular blacks, are paid 25 

3 percent less across the board regardless of their degree of 

4 education and females, depending on what study you look at, is 

5 anywhere from 25 to 30 percent less as well. So I do want to 

6 just call out that this program, the only threshold that 

7 schools can't control is earnings of students. And the only 

8 threshold that is applicable to all three of these metrics is 

9 earnings. And I 100 percent agree, all students should pay 

10 their taxes. But let's not forget that this will inherently 

11 close programs that are predominantly people of color and 

12 women. I mean, let's be honest here, and we're going to be 

13 left with a bunch of programs serving white males. And I think 

14 that's a problem. And frankly, I am surprised I'm the only one 

15 on this committee that's standing up for the ways 

16 discrimination is applicable [ph] in America today. And I'll 

17 put in the chat the source from a very reputable organization, 

18 and do with it what you want. But as earnings are less, 

19 programs fail. And that's a fact. And it's a fact that in 

20 America, women and people of color are paid less. And no one 

21 else on this committee will stand up and say that? But I'm 

22 happy to support those folks in those demographics. Thank you.

23 MS. MILLER: Thank you, Brad. Barmak and then Amanda.

24 MR. NASSIRIAN: A couple of thoughts here. I want to 

25 emphasize again that as important as impact analysis is so 

26 that we have a better sense of the likely consequences of what 

27 we're doing, the fact that particular changes may have 

28 significant impact is not in itself indicative that that 

29 impact is necessarily a bad one. It may well be that that we 
Committee Meetings - 03/15/22 14

1 have had a period of free for all in which the Federal 

2 Government has been shoveling money out the door without 

3 regard to the efficacy of the programs that it has so 

4 indiscriminately funded. As long as the logic of what the 

5 normative judgments that went into devising GE holds true, 

6 then, you know, come what may, we have to follow through on 

7 that logic. That logic, I think, can be reducible to the idea 

8 that people should not be worse off in general because they 

9 borrowed money and attended a postsecondary program. They 

10 certainly should not be living in abject poverty at the very 

11 least. And that to me, that's true. If there are programs that 

12 generate too many people who live in abject poverty, I got a 

13 problem with that. And that problem is not any less allayed by 

14 the acknowledgment that 50 percent of a particular genre of 

15 program may have to be the changed. But having said all that, 

16 look, I wouldn't be averse to a fallback safe harbor to 

17 whatever extent the allegation is that these are really 

18 worthy, fabulous programs that are being unfairly shut down. I 

19 wouldn't be averse to having a repayment rate metric that 

20 circumvents the entirety of the rule. If 80 percent of your 

21 people are repaying their debt or don't have a you know, you 

22 can fail all the metrics as far as I'm concerned and still 

23 allege yourself to be a good program. That's something for the 

24 Department to consider, I think. But in general, I just want 

25 to emphasize, do not do not assume that just because there is 

26 a significant impact, that somehow that impact is by 

27 definition a bad one. And apropos civil rights and wrapping 

28 ourselves in the flag of progressive concern about minorities, 

29 hey, I share those concerns. But the remedy to that is not to 

30 saddle minorities with more crushing debt. The remedy to that 
Committee Meetings - 03/15/22 15

1 is lower the cost of the programs for them so that you give 

2 them an opportunity to participate in economic life in a more 

3 meaningful way. It is not a remedy to wage discrimination to 

4 say let's super expensive high debt programs proliferate in 

5 minority communities because that results in even greater 

6 discrimination.

7 MS. MILLER: 30 seconds, Barmak.

8 MR. NASSIRIAN: Thank you.

9 MS. MILLER: Thank you, Barmak. Amanda and then 

10 Ernest.

11 MS. AMANDA MARTINEZ: Yeah. It's a little frustrating 

12 to have to, Brad, I understand the point that you're bringing 

13 up and it is you hoping to back up an argument from your 

14 perspective. But let's and while it's partly true, it's part 

15 of a truth, right? You're not telling the whole entire picture 

16 here and I think centering what racial equity is. I'm going to 

17 I have to refute the argument in how it was framed and put it 

18 in context. It's the wrong one. And I think the Education 

19 Department is trying to uphold a principle here and restore 

20 the promise of higher education. And while I understand that 

21 upholding principles, especially ones that deal with closing 

22 racial equity gaps, both in education but also in the economic 

23 system, which we know income inequality is extremely pervasive 

24 and is only was only exacerbated and continues to be 

25 exacerbated back in the 2008 recession and now in the pandemic 

26 and continues to be. But really, there are multiple factors 

27 that contribute to wage, the income inequality gap and wage 

28 discrimination. But partly, I would say part of solving that 
Committee Meetings - 03/15/22 16

1 problem, yes, it is dealing with the labor market and there 

2 are other agencies that deal with those issues. The Education 

3 Department still has a role to play here in regulating its 

4 educational funding, educational institutions to help 

5 hopefully solve that problem. I mean, that was the whole point 

6 of the Higher Education Act, which was it came up through a 

7 response of our economic income inequality in this country and 

8 to try to hopefully earn some wage premium. And I think we're 

9 trying to define what that wage premium is. And I think we all 

10 should agree that it should be higher than poverty level wages 

11 and education systems are clearly aware of this problem. So 

12 when you're instituting or trying to uphold or create an 

13 institution, your mission should also be if you're getting 

14 federal funds to uphold that promise. You can still operate 

15 with or without Title IV funds, but again, we're here in a 

16 specific scope. So I think you bringing up that point really 

17 is framed in the wrong way. 

18 MS. MILLER: Thank you, Amanda. Ernest and then 

19 Jamie.

20 MR. EZEUGO: Yeah. You know, honestly, Barmak covered 

21 the majority of what I would have said in response to that, so 

22 I'll try to be brief and simply add that the conflict that you 

23 know, I believe that you're trying to broach here, Brad, is 

24 like a counterfactual to kind of what you've said is then 

25 let's leave up programs that historically and will continue to 

26 underserve the populations, the same populations that you show 

27 concern for. I think it's important to have the same energy 

28 across with that. I just don't know that that counterfactual 
Committee Meetings - 03/15/22 17

1 is a just one either. But Barmak and Amanda covered this point 

2 pretty well, so. Thank you.

3 MS. MILLER: Thank you, Ernest. Jamie and then Brad.

4 MS. STUDLEY: The three previous speakers said it 

5 well, so I'll be brief. The challenge of thinking about when 

6 and how to take into account the discriminatory history and 

7 labor market variations is one that has been at the center of 

8 much of this analysis, and you end up trying to figure out 

9 what's creating opportunity for people. When should you adjust 

10 for these realities and what is a matter of false hopes and at 

11 worst in some cases, exploitation of those facts. So a rule 

12 that inclines toward improvement of programs or shifting 

13 people to better programs where in the light of the economy 

14 and society in which we operate with these profound flaws is 

15 to either use disclosures and counseling and other means to 

16 move people toward things that will meet their needs and 

17 satisfy their economic requirements. Or and when disclosure 

18 fails to do it by regulation when the Department says the 

19 taxpayers should not be covering these options. So it's not 

20 for lack of considering these, and I know you do as well, 

21 think about these consequences, Brad. It's all of us thinking 

22 about what roads should be closed off because they are so 

23 likely to suffer from these problems that are revealed by the 

24 data.

25 MS. MILLER: Thank you, Jamie. Brad.

26 MR. ADAMS: You know, I want to be clear. I agree

27 with a lot of what Amanda said. You know, it's important to 

28 recognize ways disparities and account for them. You know, 
Committee Meetings - 03/15/22 18

1 Barmak mentioned charging less for the students. I agree. The 

2 goal here is to not settle students, saddle students with a 

3 significant amount of debt. I agree with Barmak. And if 

4 students are repaying their debt, we should consider that. And 

5 the fact of the matter is, is earnings is the only metric that 

6 is in all three of these gainful these proposed debt-to7 earnings in high school earning thresholds. It's important to 

8 recognize that. And we've asked the Department for some 

9 additional information, but what was presented to us early 

10 today, that $25,000 dollar metric, it was disclosed in that 

11 metric that it did not include zero wage earners. And it's 

12 comparing against programs that are graduating folks and 

13 they're earning an income. And we are averaging in the zero 

14 median income earners into that calculation. So we're not 

15 apples to apples. And I hate that that the wages differ among 

16 these various segments. And again, I want to be extremely 

17 clear, but when comparing to a high school earner that may be 

18 primarily male and maybe primarily white, maybe in a big city 

19 versus a rural market like Mississippi, let's not forget that 

20 that these disparities do exist and these programs will go out 

21 of business because we're comparing them against the national 

22 average instead of state average, because a lot of these 

23 schools cover multiple states. So there is a problem. And this 

24 this rule as designed, will take out programs, whether you 

25 like it or not, based on earnings. And it's not based on the 

26 debt in a lot of instances, it's based on the earnings, and 

27 that's unfortunate. Thank you.

28 MS. MILLER: Thank you. Greg, I'm not seeing any 

29 other hands. Did you have more Brad that you wanted to add?
Committee Meetings - 03/15/22 19

1 MR. ADAMS: I did have two, other quick comments just 

2 for the Department in section 404, not specific to earnings, 

3 one of which is, I'm trying to find the exact section. It's in 

4 404 on the Parent PLUS, I guess it is. Let's see, on page 

5 eight is 2D romanette or 2D1 romanette one. I know there's 

6 been several comments about including Parent PLUS and the 

7 reasons behind it. But let's remember and as you know we keep 

8 debating is that's not the student's debt. It's the parent's 

9 debt. And we're only looking at the student's income, not the 

10 parent's income. And so we've got to consider why that Parent 

11 PLUS debt is being added into this calculation when looking at 

12 debt, when we're not considering the student's income. I mean, 

13 the parent's income in that analysis. It's just not apples to 

14 apples similar to the zero earners that we were talking about 

15 earlier. If the Department could just address again why Parent 

16 PLUS, we believe, should be student debt when it's the 

17 obligation of the parents.

18 MS. JEFFRIES: Brad, you have 30 seconds left.

19 MR. MARTIN: We, including the PLUS, the Parent PLUS 

20 is acknowledgment of the fact that many programs are, for 

21 undergraduate students are financed through Parent PLUS Loans 

22 and in some cases with parents being encouraged to take on 

23 that debt. And in many and although it is you’re absolutely 

24 correct that is a is not it's not a debt the student the 

25 student owes there are frequently students are expected to 

26 help their parents pay that debt pay that debt back. So there 

27 often is a sort of de facto onus on the student. And in some 

28 cases, as I said before, not always, but some schools do 

29 purposefully try to offload the burden onto parents. So, this 
Committee Meetings - 03/15/22 20

1 does account for the fact that it is that though it is 

2 parental that is being borrowed to finance the finance to 

3 finance the program.

4 MR. ADAMS: Then last comment. In my 30 seconds, we 

5 removed higher of mean or median annual earnings. We asked for 

6 data to talk about why we did that and what the impact would 

7 be. Does the Department have any comment on why mean or 

8 median, and let me also finish on Parent PLUS I disagree with 

9 that approach is it's not apples to apples as previously 

10 mentioned and the Department will most likely not consider 

11 that. But on the mean or median, do you have any information 

12 on why we went with median and not the higher of or mean or 

13 some other metric?

14 MR. MARTIN: But primarily the Scorecard uses median, 

15 that's what we have been using. It was a more streamlined way 

16 of approaching it. I don't have any more data. I'll ask 

17 whether or not I can whether we have done any more any more 

18 data on the comparisons for that, so [inaudible].

19 MR. ADAMS: Okay, thank you. And then we use 

20 property21 MS. JEFFRIES: Brad, you're time is up. 

22 MS. MILLER: Brad, Barmak and Johnson have been 

23 waiting. Thank you so much. Barmak.

24 MR. NASSIRIAN: Since we are on D1 romanette one, 

25 I'll quickly respond to Brad's concern about the inclusion of 

26 Parent PLUS, but pointing out that the Parent PLUS is really 

27 necessary to understand the level of debt financing for the 
Committee Meetings - 03/15/22 21

1 program, regardless of whether the student is expected to 

2 contribute or not. The Parent PLUS exclusion of Parent PLUS 

3 would really create a huge loophole, I think. So that's one 

4 concern. The other concern, which I have expressed before, and 

5 I'm really befuddled by this. Once again, the Department is 

6 treating a debt in the form of converted TEACH Grants as if it 

7 doesn't exist. The student is coughing up the money. If the 

8 issue is whether the program was debt financed, yes, it's debt 

9 financed, not in some hypothetical imputed way, but in fact, 

10 in fact, the student is now saddled with an unsub loan. The 

11 exclusion of that loan, I understand the theory that the 

12 Department is basing this on is that the student just 

13 willfully refused to comply with the service requirements for 

14 the TEACH Grant, but that is not the reality. The 2015 GAO 

15 report clearly indicates that nearly half of all TEACH Grants 

16 end up converting the Department's own forecast, forecasts 

17 almost 80 percent of the loans converting. Schools know full 

18 well that they're packaging people with a form of aid that is 

19 more likely than not to become a loan. So please reconsider 

20 that. That doesn't make any sense here. We're not forecasting 

21 anything. We're asking the Department to treat a loan as if 

22 it's a loan and TEACH Grants that have been converted to unsub 

23 loans are loans. The student is sweating the payments. It is 

24 ridiculous to exclude it from the debt load for purposes of 

25 GE. Thank you.

26 MS. MILLER: Thank you, Barmak. Johnson and then 

27 Emmanual.

28 MR. TYLER: Yeah. And just on the Parent PLUS, I 

29 applaud the Department for keeping that in interest [ph]. I 
Committee Meetings - 03/15/22 22

1 find that my students who go to very expensive schools under 

2 the Parent PLUS loans and you really need to return, parents 

3 are often put in this very difficult situation where the kid 

4 wants to go to school and the school is saying this will make 

5 a difference in your child's life, will transform your child's 

6 life, just sign this document and then they end up with very 

7 little. If, so, it should be counted. With, I have a more 

8 specific question to the language. If I can just get back here 

9 with respect to E of, on page 10 of the calculating earnings 

10 threshold measure of the small program rates. I just want to 

11 make sure I understand this. Is this basically saying if you 

12 had three programs and they all had, say, 17 students in them, 

13 you could then combine them all together to get a small 

14 program rate for the three programs together and use that 

15 data? 

16 MR. MARTIN: Yes.

17 MR. TYLER: Okay. Okay. Thank you.

18 MR. MARTIN: At a given credential, at a given 

19 credential level.

20 MR. TYLER: Right. Right. So the credential level 

21 would be say certificate level or something like that. But 

22 they could be very different fields. 

23 MR. MARTIN: Correct. [Interposing] Yes. That would 

24 be the credential.

25 MS. MILLER: Thank you. Emmanual.
Committee Meetings - 03/15/22 23

1 MR. GUILLORY: In our proposal to Gainful Employment, 

2 we did suggest that if the Department wants to include Parent 

3 PLUS Loans, then to include the income of the parents since 

4 parents are also paying those loans back. You indicated, the 

5 Department indicated that students will often or often 

6 students have to help parents pay those loans back, or there 

7 are instances where that actually happens, but they are 

8 helping those helping the parent pay the loans back. So it's 

9 not only solely the student's income with that additional debt 

10 load, it's also the parent's income. So I just wanted to know 

11 if the Department is willing to consider for Parent PLUS Loans 

12 aspect, the loan, the income of the parent too as well with 

13 that.

14 MR. MARTIN: No, we have not done that. There's no, I 

15 don't think we would be disinclined to do that. I don't have 

16 any indication that we have that we have considered that. 

17 Again, I go back to the I understand fully that there's no 

18 obligation on the part of the student to pay back the loan, 

19 the parent to repay the loan, if that ever if that happened, 

20 it would be strictly something within that family or whatever 

21 expectation exists. But again, there's no getting around that 

22 it is a debt instrument used to finance the education it is. 

23 It is debt maybe being assumed by the parent, but it is being 

24 assumed by the parent on behalf of that student for that 

25 program. So, and it is possible to in some cases, to many 

26 cases, if a school chooses to do this, they can convince 

27 families to load that debt burden onto parents as opposed to 

28 students to shift you know shift the effect of those of that 

29 of those numbers. So it in a sense it can be used. It isn't 

30 always, but it can be used as a way of circumventing the 
Committee Meetings - 03/15/22 24

1 student debt. This accounts for all the debt that was that was 

2 acquired in order to in order to pay for the program. So, and 

3 then ultimately, it is still the what we're talking about here 

4 is the success of the program as it pertains to the students. 

5 Not you know not whether the not whether the parents, not the 

6 parents income. I think it goes without saying that with 

7 better off parents, they can afford to pay the help their 

8 students pay debts that frequently happens even where students 

9 don't where there is no PLUS Loan. A parent with means can 

10 always help a student to repay that debt. So what we're doing 

11 here is capturing the we are getting a more holistic picture 

12 of the debt for the program. I also wanted to point out that 

13 with respect to the median use of median, in addition to what 

14 I spoke of before, it also we feel that it's just a fact that 

15 using use of the median better accounts for outliers. So we 

16 just decided to go with go with that in lieu of median and 

17 mean.

18 MS. MILLER: Thank you, Greg. Brad.

19 MR. ADAMS: Yes. You know, since this is a 

20 negotiation, Barmak made reference to something a few minutes 

21 ago that several folks in the chat, including myself, gave a 

22 plus one too, which means we give a thumbs up or agree with 

23 the concept. But I believe what he stated and I'll do my best 

24 to restate it, that is, if a student, if the goal of Gainful 

25 Employment is to ensure the students aren't saddled with debt 

26 and that they're able to repay their debts that they 

27 accumulate during school, would the Department consider having 

28 a safe harbor specific to the high school earnings metric 

29 that, if failed, as long as you have a repayment rate above 
Committee Meetings - 03/15/22 25

1 whatever that threshold is, you have a safe harbor that you're 

2 not losing your program because at the end of the day, that is 

3 the main goal of this provision as I read it. And we have one 

4 metric now specifically tied to program's Title IV eligibility 

5 that's earnings only and has no debt component to it 

6 whatsoever. So the program could cost $1,000 and fail based on 

7 a comparison to a high school earner. So would the Department 

8 consider a safe harbor provision based on a debt repayment 

9 rate? And Barmak, if I said it incorrectly, you proposed the 

10 comment, maybe you could help clarify if you'd like to reword 

11 that.

12 MR. NASSIRIAN: You did a good job. 

13 MR. MARTIN: I'll certainly take it back and discuss 

14 it with Leadership. I don't feel I'm in a position currently 

15 to say, yes, we would consider that or not consider that. But 

16 I will definitely take the concern back. So, Steve. I know I 

17 don't, well I'll leave it to the facilitator. I'm sorry. I'm 

18 not trying to take anybody else's job.

19 MS. MILLER: No, that's okay.

20 MR. MARTIN: Mine's taxing enough.

21 MS. MILLER: Steve, please.

22 MR. FINLEY: I'm just going to say, to the extent 

23 somebody is suggesting a repayment rate as a some kind of 

24 measure in the GE metrics, recommended thresholds and a basis 

25 for doing so would also be welcome given that was the issue 

26 that set aside the original GE rates was like not being able 

27 to establish a threshold for a repayment rate as a metric.
Committee Meetings - 03/15/22 26

1 MR. ADAMS: Thank you. I'll reach out to Barmak in 

2 the chat and see if we can come up with one together. Or maybe 

3 we even have a break out here in a minute, but I'll debate 

4 that with him in the chat. Thank you.

5 MS. MILLER: Thank you, Brad. Johnson and then 

6 Debbie.

7 MR. TYLER: And I'm not endorsing a repayment rate as 

8 a metric. I haven't thought of that enough. But just in the 

9 context of this, this has come up in the College Scorecard, 

10 which is a useful way to evaluate schools if there is a 

11 repayment rate. You know, making payments under an Income 

12 Driven Repayment Plan where you're just paying interest or 

13 paying nothing because you're so poor or you're below 150 

14 percent of the poverty line is a completely meaningless tool. 

15 It really goes to whether people have the capacity to sign up 

16 for Income Driven Repayment and stay in it. So the real key 

17 question is, are they paying down principal? And that's what 

18 the College Scorecard has a has a metric that measures that 

19 and what percentage of students are actually doing that. So 

20 it's certainly not enough to get out of school, get a job, 

21 have a ton of debt and be paying less than not even being able 

22 to keep up with the interest that's accumulating every day. 

23 You're in debt for the rest of your life. So any repayment 

24 metric has to take into account principal and ability to repay 

25 down the principal.

26 MS. MILLER: Thank you. Debbie.

27 MS. COCHRANE: Thank you. So I guess I maybe have a 

28 big picture question first and then I'll go into a specific. 
Committee Meetings - 03/15/22 27

1 But you know I feel like we're putting a lot of kind of big 

2 questions on the table. The idea of a safe harbor being like 

3 the latest one that's come up and maybe, maybe something Brad 

4 and Barmak will come up with and be able to send to the 

5 Department later today or maybe that's later in the week. I 

6 guess my big question is like, how do we proceed from here 

7 knowing that there are a lot of big outstanding questions and 

8 we're supposed to take a vote pretty soon and kind of like the 

9 direction that some of those conversation goes probably 

10 influences some of some of the votes. I think it'd be very 

11 helpful to know before any vote, assuming that's today, or 

12 whenever it is, kind of which of the outstanding questions the 

13 Department, you know to the extent that they can't be resolved 

14 at the table, which of them is the Department going to take 

15 back and kind of explore more in-depth, you know committed to 

16 committed to digging into versus set aside not for this 

17 rulemaking. So I think that would be helpful before any vote. 

18 The specific thing I did want to put on the table potentially 

19 is that you know I am very concerned about impacts. I know 

20 this has come up and with respect to both students and as well 

21 as institutions. And I think a really important aspect of this 

22 has got to be that the rule in terms of setting clear 

23 standards has got to be not to shut down programs or schools, 

24 but to actually get those programs and schools to comply with 

25 the standards. Right? We all saw what happened after the 2011 

26 rule, then the 2014 rule, and lowered programs, more 

27 scholarships, more career services. Those are the kinds of 

28 things we actually want. I think in some other areas where we 

29 need some of the stuff at the state level to shake out. Jamie 

30 kind of brought that up, but all of my point is all of that 
Committee Meetings - 03/15/22 28

1 takes time. And one thing I would want to put on the table is 

2 the idea of having some sort of transition period and whether 

3 that would be worthwhile, both given the fact that we're 

4 inserting kind of late in the game, the idea of an earnings 

5 metric, which we're still figuring out, is that apples to 

6 apples sufficiently? But also we do have challenges with the 

7 COVID earnings and some of the years that we would be looking 

8 at. So of course, back in 2011, the Department did have a 

9 transition period where it was like mixing and matching the 

10 debt and the earnings that would essentially give institutions 

11 who are trying to make improvements to their program time for 

12 those improvements to be realized in their metrics. So I would 

13 love to I would love to hear the Department's thoughts on some 

14 on that. I don't think it's anything we've discussed in the 

15 negotiations to date, but I think it actually might both be 

16 substantively warranted given the situation we're in right 

17 now, but also help to address some of the concerns that are 

18 coming up from a variety of angles.

19 MR. MARTIN: Well, I'll certainly take back the 

20 concerns expressed here. As I said before, we are in the last 

21 week of negotiation. We had originally scheduled a vote for 

22 this for today on consensus. But I can explore if that should 

23 be if that should be postponed, you know, and in consideration 

24 of answering some of these questions as far as something like 

25 repayment rate goes, I think I can you know I can get a 

26 response to that pretty quickly as to whether we're supportive 

27 of that. Obviously, if we're not going to go that way, then it 

28 doesn't it doesn't need to be a whole lot of time spent 

29 fleshing that out because we wouldn't be doing it. So I can 

30 definitely get that. In response to the removal of the 
Committee Meetings - 03/15/22 29

1 transition rates and the transition and also the removal of 

2 the zone, I don't know if I could say much else about that. At 

3 this point, I've already given our rationale for not doing 

4 that. We, all these concerns, obviously we'll take back in 

5 anticipation of doing or before doing the NPRM. That's what I 

6 don't want to commit to exploratory processes that we don't 

7 have time for at this point. But if there are, we'll see where 

8 we are at the end of this paper and at the end of doing this 

9 issue paper. And if there is an interest in postponing a vote 

10 until some other questions are addressed, I think I can do 

11 that. I mean, as far as the entire, the thinking behind it, 

12 the entire etiology, I don't think we're going to be able to 

13 do that in a couple of days, in the remaining time. So. I 

14 don't want to overpromise, but certainly where I can get some 

15 clarification, I'll make every attempt and I'll look into, you 

16 know, whether or not we should do the vote today or perhaps a 

17 different day.

18 MS. MILLER: Brad and then Anne.

19 MR. ADAMS: I'd like to support delaying the vote 

20 until we get some additional answers on these things. But I do 

21 not recall, and I think Debbie and Anne are both agreeing with 

22 me in the chat that we discuss transitional rates. It was on 

23 my list to discuss. I did mention the COVID year impact, and 

24 that's one way to get around it. But you know I do think it 

25 was a very important component of the 2014 rule that has been 

26 removed. It allowed schools to do things to make sure they 

27 were complying with the rule. This is a brand new 2022 rule. 

28 This is not the 2014 rule. It's got a complete new metric of 

29 whether or not a program will lose Title IV eligibility. I 
Committee Meetings - 03/15/22 30

1 don't want to forget that. And without a transitional rate

2 period, we are going to have a ton of programs fail in 2020 

3 just due to the unemployment rate being 30 percent for most of 

4 the year. So I think the Department would be wise if they 

5 considered a transitional rate period again. And I'll let 

6 Debbie and Anne add to that. Thank you.

7 MS. MILLER: Thank you, Brad. Anne.

8 DR. KRESS: I just quickly want to go back to 

9 Debbie's point. You know, there are so many uncertainties 

10 here, and I want all of us to take a step back and recognize 

11 that the whole point of Gainful Employment is to protect 

12 students from predatory practices. Right? And I am very afraid 

13 that if we were to put this to a vote, at the end of the day, 

14 we would all be voting on those luminal issues and we wouldn't 

15 focus on the big picture. And so I just want to put in my or 

16 to say that, you know, we're setting these deadlines. They're 

17 arbitrary. We can come back to this before the week ends. We 

18 don't need to extend. I just I would hate for us to take a 

19 vote based on these marginal issues that have very specific 

20 impacts that would cause us to lose sight of what the whole 

21 point of Gainful Employment is and how it did protect 

22 students. So I just wanted to put that out there.

23 MS. MILLER: Thank you, Anne. And before we go on, 

24 Adam Welle is at the table for state AGs. I don't see any 

25 other hands, Greg. Where should we go from here?

26 MR. MARTIN: So we would be moving on to, I believe, 

27 a discussion of 406, issuing D/E rates and threshold measure. 

28 So that is on that's on page 10. And again, we're on we're at 
Committee Meetings - 03/15/22 31

1 668.406. And here we have you see some various references here 

2 to updates to refer to the issuance of both debt-to-earnings 

3 rates and earnings threshold measures, for instance, under 

4 administrative data and calculating D/E rates and earnings 

5 threshold for a GE program as well program rates, Secretary 

6 uses student enrollment data, etc. So that's updated. You see 

7 that throughout. If we move on to 406 D and specifically D2. 

8 Here that we've added a correction from session two to specify 

9 that earnings information will be provided by a federal agency 

10 with earnings data. So we took out Social Security 

11 Administration and added in a federal agency with earnings 

12 data. And that is really that is really all for 406. I want to 

13 move on to 407. The termination of the D/E rates and earnings 

14 threshold measure. Again, throughout this section, we've 

15 updated to refer to both the debt-to-earnings rates and the 

16 threshold measure. Let's move down to 407A, I'm sorry, B, 

17 ineligible programs. We have added language here clarifying 

18 how the Department will effectuate the loss of eligibility, 

19 which may be through the signing of a new PPA. That does not 

20 include the failing program such as recertification or a 

21 termination or a termination action for program eligibility of 

22 the failing program or revocation of program eligibility for 

23 the failing program if the school is provisionally certified. 

24 If the Department utilizes the termination action, the 

25 institution may appeal under a subpart G proceeding if the 

26 school wishes to argue that the calculation of the rates was 

27 incorrect. We have clarified the terms of such an appeal both 

28 here and in in 668.91, including the subpart Q language. So 

29 I'll take a look at this in B. And this is ineligible 

30 programs. If the Secretary determines that a GE program is 
Committee Meetings - 03/15/22 32

1 ineligible under paragraph A3 of this section, the program's 

2 participation in the Title IV HEA program ends upon the 

3 signing of a new program participation agreement that does not 

4 include that program, the completion of a termination action 

5 of program eligibility if the action is initiated under 

6 subpart G of part 668 or revocation of program eligibility if 

7 the institution is provisionally certified. If the Secretary 

8 initiates an action under paragraph B1 romanette two of the 

9 section, the institution may initiate an appeal under subpart 

10 G of this part if it believes the Secretary erred in the 

11 calculation of the programs debt-to-earning rates under 

12 668.404 or the earnings threshold measure under 668.405. 

13 Institutions may not dispute a program's ineligibility based 

14 on its D/E rates or the earnings threshold measure, except as 

15 described in this paragraph, B2. So I'll stop there and open 

16 the floor for discussion.

17 MS. MILLER: Thank you. Carolyn and then Emmanual.

18 MS. FAST: I have some significant concerns and 

19 questions about this section 407B, which talks about how a 

20 program that is not meeting the GE rule standards would lose 

21 eligibility. So as I understand it, this, and please correct 

22 me if I'm wrong from the Department, but this this provision 

23 says that instead of a, that if a program doesn't meet the 

24 standard for two out of three years, they will continue to, 

25 even if that happens after the three years, they will continue 

26 to be able to get and will get Title IV funding and enroll 

27 students unless one of these three things happen. One is 

28 they've come up for a renewal of their program participation 

29 agreement, which might not take until six years, because, as I 
Committee Meetings - 03/15/22 33

1 understand it, those are renewed every six years or the 

2 Department initiates and completes a termination action which 

3 would take an action like an active action by the Department, 

4 and then a whole process that could also take a long time or 

5 they could just be revoked if their provision is certified. So 

6 it seems to me that someone could a program could fail and 

7 continue and after three years, continue to get money and 

8 enroll students for some period of years afterward. But maybe 

9 I'm wrong, so please correct.

10 MR. MARTIN: Steve Finley explains this very well. So 

11 I'm going to yield to Steve if the facilitator will call on 

12 Steve.

13 MS. MILLER: Steve, please.

14 MR. FINLEY: And if I will think, to unmute my 

15 microphone. So a fully certified institution has a right to 

16 offer eligible programs unless that program is loses 

17 eligibility. And the way that would happen would be through 

18 the Department initiating an action to terminate, limit, or 

19 suspend the program under subpart G. That's just the way it 

20 has to happen under the regulations because it's a fully 

21 certified institution that has rights under the HEA. So, a 

22 fully cert- a fully certified institution that has a program 

23 that that fails these eligibility metrics, the Department will 

24 routinely then turn around and initiate termination actions 

25 against those that one or more programs. If the institution is 

26 already provisional, the Department may choose instead to 

27 revoke its participation for that program, and if it was up 

28 for recertification, it could just have the program removed 

29 during the recertification. So it's not necessarily that 
Committee Meetings - 03/15/22 34

1 there's a large amount of time that happens. This is much more 

2 situational on where the institution is in it's in its 

3 participation cycle and, and in its participation status with 

4 the Department.

5 MS. MILLER: Thank you, Steve. Oh, sorry.

6 MR. MARTIN: No, I clicked it accidentally. I'm 

7 sorry.

8 MS. MILLER: Okay. Carolyn, did you have any further 

9 questions or comment? Okay. Emmanual.

10 MR. GUILLORY: So I want to say that we were very 

11 happy that the Department included some sort of appeals 

12 language. That was really one of our biggest concerns during 

13 session two when we talked about the proposed text initially 

14 was that there was just no opportunity to ensure that data is 

15 accurate before any actions are taken. So we were very happy 

16 that at least there was some language here. But there's still 

17 a concern around this language because a program will be 

18 deemed ineligible before they would be able to look at that 

19 data, make any corrections if there are corrections that need 

20 to be made to that data. And that's a bit concerning based on 

21 how this reads. And also, you would think that there was a 

22 call earlier to go back to the 2014 rule, but the main thing 

23 in that rule for us was that an institution had the ability to 

24 make sure that data is accurate. And really this is what this 

25 comes down to. We want to make sure the bad actors are you

26 know sought after. We want all of that. We just want to make 

27 sure that we have the opportunity to correct data if data 

28 needs to be corrected. So I guess you know we did submit an 
Committee Meetings - 03/15/22 35

1 appeals process language here the Department didn't take. And 

2 obviously, you know, for whatever reason, the Department felt 

3 like that wasn't the route we want to go in. But we really 

4 believe that the opportunity to correct the data before the 

5 action is taken is important because we definitely want to 

6 make sure that we are informing students of ineligible 

7 programs because they're truly ineligible and not because 

8 there was a mistake or flaw or something like that. So we 

9 continue to request the Department consider to allow 

10 institutions to at least appeal the data when they fail one 

11 rate, you know, to make sure that that is accurate. Also with 

12 small program rates as well, since those will be calculated 

13 and like I mentioned earlier, the Department will use those 

14 rates to potentially determine whether or not to approve a 

15 program participation agreement or recertify or put a program 

16 participation agreement on provisional certification status. 

17 Then there should likely be an opportunity to look at those 

18 rates too as well. How are institutions going to, how will 

19 those rates be delivered to institutions and institutions 

20 appeal those too? So I would like to hear from the Department 

21 on that. Thanks.

22 MS. MILLER: Thank you. Steve. You're on mute, Steve.

23 MR. FINLEY: I apologize for that. This is partially 

24 in response to the points Emmanual was raising, but it's also 

25 something I should have added to my earlier reply to Carolyn. 

26 Institutions that have a revocation action if they're 

27 provisionally certified, these are not, they have a right and 

28 a procedural right to request reconsideration of that 

29 decision, and they can provide information in support of that 
Committee Meetings - 03/15/22 36

1 request. And institutions that have a program removed during 

2 recertification also have a right to have the ability to 

3 request reconsideration. Those are much less formal than the 

4 appeal mechanisms that are set out in subpart G. But they do 

5 exist and there are opportunities there for institutions to 

6 point out errors that were made in the material that was 

7 relied upon by the Department in making those decisions. And 

8 the other point I would make to Emmanual is there is an 

9 intention here that the information compiled for the Completer 

10 List and everything will have an ongoing ability for the 

11 institution to be able to see that information and update it 

12 as needed before it is actually used to obtain the earnings 

13 information from the other federal source.

14 MS. MILLER: Thank you, Steve. Emmanual,- 

15 MR. GUILLORY: Yeah, I wanted to say that I 

16 appreciate it. Steve, I appreciate your response. And again, I 

17 appreciate everything Department's doing here. So I don't want 

18 to seem like we're, you know, we understand the goals and what 

19 we're trying to do with this particular issue paper. But if 

20 it's not clearly stated here within subpart Q that there is an 

21 appeals process for this data that kicks in if you fail and 

22 you have the opportunity to make sure, okay, well, based on 

23 what we calculated, we didn't fail, the Department reconsiders 

24 that and say, oh yeah, there was an error here, or no, you do. 

25 We're moving forward. You have to warn your students, and if 

26 you do this one more time, then you're going to become 

27 ineligible. It's just that is the process that typically it 

28 should, in our opinion, that should be allowed for 

29 institutions as it is in other areas like financial 
Committee Meetings - 03/15/22 37

1 responsibility area or audit reviews, or have an opportunity 

2 just to look at that before a final determination is made. How 

3 this is written, you're deemed ineligible. So you've already 

4 warned your students twice, right? You've warned your students 

5 twice and you're deemed ineligible. But then you can go back 

6 and look at maybe the first rate was fine, you know, but the 

7 second rate wasn't. So we're technically not ineligible yet or 

8 it just seems a little backwards in some ways. But and if I'm 

9 misinterpreting that, please let me know. Thanks.

10 MS. MILLER: Brad.

11 MR. ADAMS: I also want to say I was glad to see 

12 there was an inclusion of some sort of appeals process, 

13 however appealing, whether or not the calculation was 

14 calculated accurately to me is without actually knowing what 

15 the underlying data is, especially on the earnings side, 

16 doesn't add really much of anything. We certainly hope the 

17 Department can divide accurately. And so I'm curious why we're 

18 introducing subpart G, which I've never gone through subpart 

19 G, but I understand it involves a hearing at the Department 

20 through an administrative law judge and does the Department 

21 have the staffing available within these law judges to hear 

22 the cases that may come up through this provision as written?

23 MS. MILLER: Doesn't look like there's a response 

24 from the Department.

25 MR. MARTIN: I don't know if I can speak to the 

26 Department's staffing patterns, but certainly I would say 

27 what's the appeals rights the institutions have under subpart 

28 G, they just have. It's incumbent upon the Department to allow 
Committee Meetings - 03/15/22 38

1 institutions to exercise those whatever the amount of a person 

2 power might be necessary to accomplish that. So I don't know 

3 if I can, you know, it just it and it's not, it's one tool we 

4 have as Steve pointed out that there are, you know there's the 

5 signing of a new participation agreement that does not include 

6 the program. If the institution were to refuse to do that and 

7 pushed it to a proceeding under subpart G then, then yes, they 

8 would have all those, all those appeal provisions would be 

9 there. But I would just say it is, a due process, right, that 

10 the institution has that we would have to adhere to.

11 MR. ADAMS: It just appears to be a pretty burdensome 

12 process when the previous provision that was hashed out over

13 three weeks for GE alone included an earning appeals process. 

14 It seems like we're trying to recreate something that worked 

15 the first time. And also, I'd like to add to Mr. Finley's 

16 point that if there is going to be a Completers List review, I 

17 believe we should add that to the provision. That is good news 

18 and is something we support. But I didn't read that that's an 

19 option within this issue paper. So if that is going to be part 

20 of this process, I think we should add it back in. Or did I 

21 miss it? Is it somewhere else, Mr. Finley?

22 MR. FINLEY: I think that's going to be built into 

23 the systems where schools have access to see the information 

24 and just make ongoing reviews of it on their on their own, 

25 since the schools are the source of a lot of the data anyway.

26 MR. ADAMS: Will that also include system for the 

27 debt in addition to the completers like last time?
Committee Meetings - 03/15/22 39

1 MR. FINLEY: I'm sorry. I don't know the answer to 

2 that.

3 MR. ADAMS: It'd be nice if it did. So then you know 

4 your numbers prior to getting your earnings number. This is 

5 the way it was last time.

6 MS. MILLER: Thank you. Johnson and then Adam.

7 MR. TYLER: Yeah. I may have missed this, but, so, 

8 what happens to the small completers when you can't get 30 

9 over 40, 30 people over 40 years have completed and you're 

10 basically combining different programs? So you do that 

11 combination and you evaluate the earnings and the debt. And 

12 what are the consequences of that? Is it the or do those 

13 programs have to be removed or is it just a publication 

14 consequence?

15 MR. MARTIN: There is no loss of eligibility 

16 associated with a small program.

17 MR. TYLER: There's no loss. Okay. Thank you.

18 MS. MILLER: Thank you, Johnson. Adam.

19 MR. WELLE: Yeah. I just wanted to piggyback off of 

20 Carolyn's question. As I heard her concern is, it's that the 

21 program could be a program could be failing Gainful Employment 

22 standards and would not be supposed to receive funding Title 

23 IV funding, but it could continue indefinitely. So I guess I'm 

24 still unclear about this. Would the Department have discretion 

25 to decline to issue the termination the termination action 

26 that's listed in one romanette two? [Audio] that seems like a 
Committee Meetings - 03/15/22 40

1 concern, that the rule could be undermined. And I guess I'm 

2 wondering, why can't the program become ineligible once it's 

3 determined to be ineligible?

4 MR. MARTIN: I'll probably yield back to Steve on 

5 this. But we point out we under the 2014 rule, we never got to 

6 the point where any programs lost eligibility. So they're 

7 unlike with something which is statutory, such as if you 

8 failed the failures for 90/10 where the institution 

9 automatically loses eligibility and per statute. That's just 

10 what happens. We don't have that here. So these are these what 

11 you see here are the mechanisms that that would be used for 

12 removal of program eligibility. And I don't, I should turn 

13 this over to Steve. I don't think that would have been any 

14 different had the 2014 rule stayed in effect, there would have 

15 been no way for it to be just automatic without the school 

16 being able to if the school had disagreed with that or would 

17 not have consented to having that removed from the from the 

18 PPA, they still would have had recourse to due process if we 

19 had moved into termination action. But I'll take that back to 

20 Steve.

21 MS. MILLER: Steve.

22 MR. FINLEY: Yeah. I mean, Greg's correct there. And 

23 we never reached the stage with the earlier set of GE 

24 regulations but to fully certify an institution, the programs 

25 the programs are ineligible when they are, when they fail the 

26 metrics under the regulations. But you've got to establish the 

27 final agency position on that through a hearing process. And 

28 unless you're doing it, you're doing it through 

29 recertification or you're doing a revocation of the 
Committee Meetings - 03/15/22 41

1 institution's part of the institution's participation under 

2 provisional certification. So they're not self-implementing. 

3 But all you're doing is confirming the status that the program 

4 is becoming ineligible under those measures.

5 MS. MILLER: Thank you, Steve. Emmanual.

6 MR. GUILLORY: Yes. This is the second time that I've 

7 heard that the small program rates don't determine Title IV 

8 eligibility at all. So I am really confused of why small 

9 program rates are included in section 668.13, if that's the 

10 case, because that is tied to Title IV eligibility. So can the 

11 Department answer that question? If the intent is that they 

12 don't have any bearing at all whatsoever on Title IV 

13 eligibility, then then they should not be included in section 

14 668.13. And then also, as it relates to the data appeal, just 

15 we should be mindful of the 2020, 2021 cohort and 2021 2022 

16 cohort and probably 2019 2020 cohort as it relates to the 

17 pandemic and the issues that they face too, and how the data 

18 is going to reflect that. I just want to be mindful of, 

19 because there's going to be some differences in the data there 

20 regarding the appeals process for institutions, too. So first 

21 question, small program rates, do they have Title IV 

22 eligibility bearing at all or no? If the answer is no, then 

23 they should be removed in section 668.13.

24 MR. MARTIN: Well, they have no there's no there's 

25 not an automatic there's no automatic loss of eligibility for 

26 based upon rates, you know. You were I'm sorry, you're 

27 referencing from the other, I'm trying to find that. You, let 

28 me let me let me get, I'll address that further. But I just 

29 want to say that there's no there's no, it's not, the rate has 
Committee Meetings - 03/15/22 42

1 no impact on a loss of eligibility such as the D/E, such as 

2 the D/E threshold rates would for programs that that are not 

3 small programs.

4 MR. GUILLORY: Okay.

5 MS. MILLER: Okay, thank you. I'm not seeing any more 

6 hands. Do we want to move on or take a break?

7 MR. MARTIN: Let's take I'd like to take a short 

8 break, please.

9 MS. MILLER: Okay. How long? Ten?

10 MR. MARTIN: Yeah. Let's call 10 minutes.

11 MS. MILLER: Okay. 

12 MR. MARTIN: Thank you.

13 MS. MILLER: Alright, we'll take a 10-minute break.

14 If we could stop the live, please. Welcome back from break. 

15 Adam, I see your hand up, but I just want to ask Greg if you 

16 want to kick us off or have anything to add.

17 MR. MARTIN: Yeah, I have a couple of comments. I 

18 wanted to address Emmanual's point first. So, he was 

19 referencing, we're not there yet, it's at the end of the 

20 document. But just because he brought the point up, so I do 

21 feel it's necessary to address at this point. So when we 

22 talked about the ramifications of any rates connected with a 

23 small with a small program. If you look and as I said, there's 

24 no threshold, there's no ramifications connected with a 

25 specific threshold for small programs the way that there are 
Committee Meetings - 03/15/22 43

1 for other GE programs. However, in 668.13, which is what he 

2 was referencing is the certification procedures and I can just 

3 address that now. When we talk about supplementary performance 

4 measures, the Secretary assesses and analyzes the following 

5 information, among other information, prior to issuing an 

6 institution, to issuing an institution, a new program 

7 participation agreement, and may consider the information in 

8 determining whether to certify or condition the participation 

9 of an institution under 668.13 and 668.14. So that's the 

10 certification. And then 14 is the program participation 

11 agreement. So one of those, if you look down there, the, the, 

12 the under romanette, in E, romanette three is small gram13 small program rates. I'm still trying to get used to that 

14 word. I keep wanting to say short-term program that's entirely 

15 incorrect. Small program rates. The small program rates under 

16 668.404 G and 405 E if applicable. So yes, it is, it is, while 

17 there's not a specific loss of eligibility associated with the 

18 with a rate, those rates, as I point out here, it's also true 

19 that debt-to-earnings rates and earnings thresh- earnings 

20 threshold measures, irrespective of whether they result in a 

21 loss of program eligibility, can also be considered in the 

22 certification in the certification procedures in this 

23 evaluation of when we look at whether to extend typically this 

24 would happen when we're when the school is up for 

25 recertification. If we were recertifying the institution, 

26 would we limit, sometimes schools are limited in being able to 

27 add new programs. I think there are elements like that in 

28 these that happened with recertification. So, yes, it can be 

29 considered holistically along with these other these other 

30 indicators when the Department is determining whether or not 
Committee Meetings - 03/15/22 44

1 to certify or recertify an institution or condition its 

2 recertification on certain elements. So I did want to point 

3 that out. So it's not, and Emmanual is correct, it's not it 

4 would not be accurate to say that it would never have any 

5 bearing whatsoever. But there's no as you'll know, there's no 

6 specific rate associated with it. It's not as if that rate 

7 wound up being a certain percentage that would result in a 

8 conditioned program participation [inaudible] to clarify that. 

9 And also before we get going again here, if we turn to 406. 

10 Yeah, it's 406, 406 D/E, issuing D/E rates and earnings 

11 threshold measures 406A, administrative data. I think it's 

12 important to go back to something, I think we mentioned that 

13 the first during the first session that the Department is 

14 trying to the extent possible to make GE reporting or base GE 

15 calculation of GE rates off of the administrative data as much 

16 as possible in order, and to the extent possible, limit the 

17 amount of information that needs to be provided by schools 

18 under the reporting protocol. So we, our systems, the data 

19 that we now have in in both NSLDS and in COD is much more 

20 complete, robust than it was a number of years ago. We now 

21 have program level data that's much better. So we're trying 

22 to, to the extent possible, use administrative data. And as we 

23 point out in A, we in calculating the rates and earnings 

24 threshold measures for a GE program and the small program 

25 rates, the Secretary uses enrollment disbursement and program 

26 data and other data. The institution is required to report to 

27 the Secretary to support its administration or participation 

28 in the programs in accordance with procedures established by 

29 the Secretary. The institution must update or otherwise 

30 correct any reported data no later than 60 days after the end 
Committee Meetings - 03/15/22 45

1 of the award year. So this goes back to our contention that 

2 the data reported by the institution is expected to be 

3 correct. We believe we have, that we're, we're well with 

4 within what is reasonable to assume that what the institution 

5 reports to us is correct. And I don't think an institution 

6 would want to say to us that, well, we need to look at this 

7 again because the data we reported to you was not we reported 

8 to you in COD and NSLDS is not correct. So all those, debt, 

9 all that is based off of reported disbursements. So we expect 

10 that all that information would be correct. And we are 

11 pointing out that the institution is that that needs to be 

12 corrected no more than 60 days after the end of an award year. 

13 So I just wanted to make those points before we moved on to, I 

14 believe 668.408 if I'm not mistaken. And I'll wait for Renee 

15 to pull that up. Thank you, Renee. Okay, so, in 668.408 

16 consequences, just make sure I'm in the right, yeah, I am in 

17 the right place, just second guessing myself here. So we are 

18 in 668.408, consequences of the D/E rates or earnings thresh19 threshold measures. And here we note that we've updated the 

20 entire section to refer to both the debt-to-earnings rates and 

21 the threshold measure. If we move down to 668.408 A2 romanette 

22 four, for warnings provided to enrolled students. Per 

23 questions from negotiators, we have added B, that we intend 

24 the provision to reflect how institutions expect to respond in 

25 the event that our program loses eligibility. So you can see 

26 here that for the warnings provided to students, in addition 

27 to the what is an A, which we had previously description of 

28 the academic and financial options available to the students, 

29 whether students can transfer credits earned in a program to 

30 another program at the institution and which course credits 
Committee Meetings - 03/15/22 46

1 would transfer. We've added there in B an indication of 

2 whether in the event that the program loses Title IV loses 

3 eligibility for Title IV funds, the institution will continue 

4 to provide instruction in the program to allow students to 

5 complete the program and to refund tuition fees and other 

6 required charges paid to the institution on behalf of students 

7 for enrollment in the program. And here in C, we've added 

8 language to clarify that we intend for this to refer to 

9 institutions' plans if their program does lose eligibility and 

10 address negotiator concerns that transfer promises may not may 

11 not always be realistic. So in C you see an explanation of 

12 whether in the event the program loses eligibility for Title 

13 IV funds, the student could transfer credits earned in the 

14 program to another institution in accordance with an 

15 established articulation agreement or teach out plan or 

16 agreement. And then moving on to A6 and I'll wait for, oh, 

17 Renee is one step ahead of me. That's good. Here, you see the, 

18 at negotiators' suggestions, we have added a disclaimer that 

19 institutions must still provide accurate information to 

20 students and that students' access to relief will not be 

21 limited on the basis of a warning or an attestation. So let's 

22 read what we read the language we've added to A6. The 

23 provision of a student warning and or the completion of an 

24 attestation does not mitigate the institution's responsibility 

25 to provide accurate information to students concerning program 

26 status, nor, nor does not, that should be that's a typo there. 

27 Nor will it be considered as evidence against the student's 

28 claim in applying for a loan discharge. So we did add that 

29 language there will clean up that typo there with does and 
Committee Meetings - 03/15/22 47

1 will. And that is it for section 408. So I'll stop there and 

2 take any comments or any discussion. Thank you.

3 MS. MILLER: Adam. And then Marvin.

4 MR. WELLE: Yeah, I'm sorry. I still had one final 

5 comment from 407 B1, I guess in the I don't mean to harp on 

6 this, but as I heard it, it was stated that there's some sort 

7 of authority that says if there's a condition that is not 

8 statutory for program and eligibility, that there has to be 

9 some sort of additional administrative action that's taken 

10 subsequent to the event to decertify or make the program 

11 ineligible. I guess if that authority could be provided, I'd 

12 appreciate that. I just worry that that provision creates you 

13 know an opportunity for mischief. I feel like if the 

14 Department unreasonably delayed in taking that termination 

15 action, it would result in students enrolling in a program 

16 that, under the rules, is supposed to be not receiving Title 

17 IV aid. I'm worried about how students you know would be how 

18 that fact would be represented to students, and it seems 

19 completely inimical to the rule and the purpose for that event 

20 to be allowed. So if that can be remedied in some way to 

21 prevent that type of delay, we would, I think I'd strongly 

22 support that. Thank you.

23 MR. MARTIN: Thank you.

24 MS. MILLER: Thank you. And Jessica Ranucci is at the 

25 table for legal aid. Marvin and then Jessica.

26 MR. SMITH: Greg, I wanted to go back to small 

27 program rates just a little bit so I understand kind of even 

28 the intent because I think you've assured us from the 
Committee Meetings - 03/15/22 48

1 beginning that it won't impact schools and now it's a 

2 supplementary kind of measure. Again, I feel like GE programs, 

3 you have the data, you can share it with schools. We can make 

4 a determination whether programs are meeting some type of 

5 metric, but we won't have any specific data, if I understand 

6 it to say you know of our 30 small programs, which ones are 

7 meeting some types of metric and which ones aren't? And I 

8 understand I think I understand from a statistical point of 

9 view that the Department can't reveal you know small less than 

10 30 income. But I guess I'm wondering, Greg, have you guys ran 

11 some data? Because I don't think you've shared it with us to 

12 show us what kind of small program rate impacts schools. And 

13 really, I'm just still trying to understand what are schools 

14 supposed to do with the data? Because I think that schools 

15 want to be good partners in this and want to figure out if 

16 there's programs that are not meeting some type of metric. 

17 What are we going to be able to do with that data?

18 MR. MARTIN: I'm not sure I can answer what you do 

19 with the data. It is essentially informational, I think, and 

20 it's there to, it was added to account for the number of 

21 programs that were out there about which there was nothing 

22 reported because they are so, the programs are so small. When 

23 I said I mean, I guess it comes down to a matter of semantics. 

24 I was talking about the ramifications, the program 

25 ramifications for any calculated, small program rate. There 

26 are none specifically for that. But it is true that under 

27 certification procedures, we can use the rates and we say, I 

28 would add that in reading the language, the supplementary 

29 information, the Secretary assesses and analyzes the following 

30 information, among other information. So it's just pointing 
Committee Meetings - 03/15/22 49

1 out that it can be used in an assessment of an institution 

2 prior to our recertifying that institution, which is a process 

3 that takes place now. We use a lot of factors in determining 

4 whether to recertify the institution and whether or not to 

5 condition that in any way. But there's certainly not the case 

6 that that if that if a program had if there were a small 

7 program rate, that a certain rate would trigger the Department 

8 to say you're not you're not certified. So there's no there's 

9 no stated ramification. However, yes, it is included in there 

10 as something that we can look at. But as far as what the 

11 school should do about it, I don't, when they're, when they 

12 receive a certain small program rate, I'm not sure I can 

13 answer that, I can answer that question.

14 MR. SMITH: Have you ran some data to show small 

15 program rates? Is that possible to, I don't know, look at?

16 MR. MARTIN: I will I will ask what data we have are 

17 related to small programs.

18 MR. SMITH: Thank you.

19 MS. MILLER: Thank you, Marvin. And just before we 

20 get to Jessica, I want to make a comment to those in the 

21 public who are coming for public comment at 3:30, if you could 

22 log on just 10 to 20 minutes early so that we can make sure 

23 that we get to you when it's time. Okay, Jessica.

24 MS. RANUCCI: Thanks. We submitted a proposal prior 

25 to this week that would require institutions to give certain 

26 information to their accreditors upon at the same time that 

27 they would be required to give the student warning. I 

28 understand the Department didn't adopt any of that, so you may 
Committee Meetings - 03/15/22 50

1 not agree that all of that information is necessary, but at a 

2 minimum, I think requiring institutions or the Department 

3 directly notifying the accreditors that their whatever program 

4 has failed one year of the metrics really seems like a no 

5 brainer. I don't understand why there would be any opposition 

6 to the accreditors getting that information. I think it's 

7 really at a point where the accreditors can use that 

8 information in the interest of helping students. I think the 

9 more that the accreditors know early about programs that 

10 potentially lose Title IV, the more that the accreditors can 

11 do their job well. So just wondering if the Department will 

12 consider adding that in?

13 MR. MARTIN: Your suggestion being to have the 

14 Department do it or require schools to do it?

15 MS. RANUCCI: I, this is not my area of expertise, so 

16 maybe let Jamie or someone else answer that question. But I 

17 guess I just the idea that someone has to tell the accreditors 

18 that this is happening.

19 MR. MARTIN: Thank you.

20 MS. MILLER: Greg, I'm not seeing any other hands, 

21 can- oh, Emmanual.

22 MR. GUILLORY: I'll just add to Marvin's comments 

23 that we continue to be really, really concerned about the 

24 small program rates, especially since we don't know what a, I 

25 mean, I'm assuming that it would be the same as a debt-to26 earnings rate metric where it's 8 percent annual or 20 percent 

27 discretionary. And if, you know, if you're over that, you 
Committee Meetings - 03/15/22 51

1 fail, if you're below, you pass, I assume that's what it would 

2 be. 

3 MR. MARTIN: But there's no pass or fail associated 

4 with those rates.

5 MR. GUILLORY: So then that's even more concerning 

6 because then institutions don't know what is passing or 

7 failing or good or bad, and won't know how the Department will 

8 make the determination if they use small program rates when 

9 approving their PPA or recertifying or whatnot of how they're 

10 doing it. So, I mean, there's no language here that says in 

11 the Federal Register, we're going to put out how we're going 

12 to do this. Like that's not listed here. So this is just 

13 really up to the Secretary to just pull from these potential 

14 rates and kind of determine whatever they want to determine 

15 based on that. And that's just a real concern. And I think 

16 that is a very, very valid one. And so I would just reiterate 

17 that if it's the intent of the Department to not have a small 

18 program rates determine Title IV eligibility at all, then they 

19 should be removed from that particular section that we haven't 

20 technically gotten to yet, but that we keep talking.

21 MR. MARTIN: Thank you.

22 MS. MILLER: Okay. Greg, do you want to move us into 

23 the next section?

24 MR. MARTIN: Sure. I just want to make sure, I 

25 believe that we are going to 668.409 on page 14, which is 

26 reporting requirements for the GE programs. And if we'll move 

27 down to 409 A2 romanette five. We've added a, we've added the 

28 phrase for such expenses simply to clarify the intended 
Committee Meetings - 03/15/22 52

1 reference to expenses for books, supplies and equipment. So 

2 that's in five under reporting requirements, the total amount 

3 of the allowances for books, supplies and equipment included 

4 in the students Title IV cost of attendance or COA for each 

5 award year in which the student was enrolled in the program or 

6 higher amount if assessed the student by the institution for 

7 such expenses, that would be a higher amount than the actual. 

8 Remember that you're reporting the allowance for book supplies 

9 not, which is different from each student's actual costs 

10 unless those and unless the amount assessed the student is 

11 actually higher than what that what that allowance is. And 

12 wait, that is it for 4, that is that's all we have for 409. We 

13 do point out that the supplementary performance measures was 

14 moved to 668.13, which is that's a timely discussion given 

15 the, Emmanual's last comment. So you can see that 409 was 

16 taken out. And that's now that's now 413. So I'll move on, 

17 just basically [inaudible] correction there. So I will move on 

18 to, we'll move on to 668.410, that's certification 

19 requirements for the GE programs. And there is we've added 

20 we've added nothing there. So I'll move on to, there's also 

21 nothing new in 668.411 under severability. So we'll move on to 

22 668.91. Just hold on one second here. And, yeah, okay. So, 

23 here we referenced this earlier with respect to loss of 

24 eligibility. This is under initial and final decisions. And 

25 this section was not previously included in the proposed 

26 language at all. We've added it here so that we can include a 

27 corresponding provision to the ineligibility language included 

28 above related to the grounds for appealing the loss of 

29 eligibility. So here you can see in 91 that termination action 

30 against a program based on the program's failure to meet the 
Committee Meetings - 03/15/22 53

1 requirements in 668.404 and 405, the hearing official must 

2 terminate the program's eligibility unless the hearing 

3 official concludes that the Secretary erred in the applicable 

4 able calculation. So I do want to point out here that since we 

5 had some discussion earlier on these termination actions and 

6 the Department's capacity, that this would be a relatively 

7 limited, limited action. So it would be it would be erroneous 

8 to draw a comparison between this type of action and a, an 

9 overall [inaudible] action where the where the Secretary was 

10 moving to terminate an institution's participation say based 

11 on program compliance is usually something a lot more that 

12 might involve a lot more complexity than this. And you notice 

13 it's limited here and we do state the hearing official must 

14 terminate the eligibility so that would be that would 

15 automatically happen unless that official concludes the 

16 Secretary error in the applicable calculations. So, the only 

17 avenue of appeal really is that the Secretary erred in in 

18 calculating the calculating the rates. But I'll stop and allow 

19 comment there before we move on.

20 MS. MILLER: Okay. Brad and then Carolyn.

21 MR. ADAMS: Yeah. You know, within 668.409, talking 

22 about the cost of attendance and you know I may have missed it 

23 earlier as we were flying through some of these other 

24 sections, but I do think and it's a comment I made in week two 

25 that we need to consider taking tuition down by institutional 

26 grants. Those are not loans. Those are not anything that the 

27 student would ever owe. Those are dollars in which the 

28 institution is taking off this tuition. As you probably know, 

29 we can't differentiate tuition for various things, but 
Committee Meetings - 03/15/22 54

1 students can be eligible for institutional grants for whatever 

2 that grant is driven for. So, example, veterans who have 

3 $1,000 dollars off, first responders, employee dependents, 

4 various things that have specific criteria. So, for example, 

5 tuition is $5,000. A VA student gets a $1,000 dollar 

6 institutional grant. They owe $4,000 dollars. But if they 

7 borrow $5,000 from the Department, the full $5,000 is what's 

8 counted for GE. Just a simple example. So you know my concern 

9 is institutional grant is monies that the student never really 

10 owed in tuitions. And so you know whether it's here or in the 

11 actual calculation of the median debt, I'd like to get the 

12 Department's perspective on why we're not considering reducing 

13 tuition by an institutional grant that is never going to be 

14 owed by that student and all it's doing is reducing tuition.

15 MR. MARTIN: Well, the taking of or the reporting of 

16 this information, specifically the total amount, tuition and 

17 fees assessed the student for the student's entire enrollment 

18 in the program and also the allowance for both the supplies, I 

19 would point out that that's not that's not what the student 

20 owes. The student owes what has been borrowed. And I think 

21 that's an important point to make. So this was just put in 

22 there as a I don't think concession would be the right word, 

23 but as a an acknowledgment of the fact that there are, you 

24 know, that that there is borrowing above tuition and fees that 

25 goes for other things. But I think it's still we're still 

26 concerned about it because it's still debt. This is merely a 

27 cap at what we'll, what portion of that borrowing we are going 

28 to count. So it's a reasonable cap. I do understand that, yes, 

29 if grants if an institution makes grants to a student, that 

30 that that that does not have to be repaid. But the amount the 
Committee Meetings - 03/15/22 55

1 student borrows is still debt owed by the student in a very 

2 real way. And in in actuality, as far as does the student have 

3 the means, does the student make enough money or the means 

4 through which to pay that debt back? It doesn't really change 

5 as a result of what the what the what that debt went for. This 

6 is this was just a cap placed in here as a recognition of 

7 those differences. So we'd be disinclined to count those 

8 grants.

9 MR. ADAMS: Well, in theory, though, that additional 

10 monies they borrow would go back to the student and the 

11 stipend above and beyond books, supplies, and equipment. So it 

12 would be for something other than what we're capping tuition 

13 at. But thank you for the consideration of that.

14 MS. MILLER: Thank you, Brad. Barmak.

15 MR. NASSIRIAN: I just wanted to endorse Greg's 

16 explanation. We are already excluding a significant amount of 

17 the burden that participation in that program is imposing on 

18 the student. The student ends up owing the entirety of the 

19 debt. Furthermore, it's really hard sometimes to disaggregate 

20 what component of a grant was intended for living expenses and 

21 what components should be allocated to tuition. So I feel like 

22 we're already again extending the benefit of a significant 

23 doubt to institutions here and further discounting that cap 

24 just makes it meaningless.

25 MS. MILLER: Thank you, Barmak. Carolyn.

26 MS. FAST: I just wanted to comment on, Adam had 

27 brought up in the chat, which I know is not available to those 

28 watching, a suggestion about addressing concerns that he and I 
Committee Meetings - 03/15/22 56

1 raised about the process by which a Title IV funds would stop 

2 going to a failing program and that there might be they might 

3 address this concern to have a provision clarifying that a 

4 termination action would be commenced right after a program 

5 was determined to be ineligible to address this concern that 

6 we have, that without Department action, there could be no 

7 consequence for a failing program, which is a huge concern for 

8 us. And I don't know how it was supposed to be handled under 

9 the prior version of the rule, but this [inaudible] seems to 

10 be new in this rule.

11 MR. MARTIN: I'll respond to that. But again, I yield 

12 to Steve because his explanations of this are usually better 

13 than mine. But, we never, it wasn't specifically addressed in 

14 the previous rule. That is true. But the mechanisms that are 

15 spelled out here would have been those that would have had to 

16 have been used. We could, we could have the institution sign a 

17 new program participation agreement, as Steve points out at 

18 the time, that the first that the earnings rates come out and 

19 the program would lose eligibility. The institution is still a 

20 fully certified institution. They could sign a new program 

21 participation agreement, which is one of the options indicated 

22 there. In the event the school refused to do that, then we 

23 would be, I believe, faced with having to move ahead with the 

24 subpart G. But Steve, do you want to comment on that again?

25 MR. FINLEY: Could you repeat what the question was? 

26 Because I thought you responded to it.

27 MR. MARTIN: Yeah, I think I did. It was just about 

28 the idea that that I think because we've put this in in this 

29 time, that that it appears to be to be new, which it really 
Committee Meetings - 03/15/22 57

1 isn't. It would have been the same, the same protocol we would 

2 have had to use under the '14 rule. Had that rule remained in 

3 place and that it doesn't mean, and I don't, it doesn't mean 

4 that a program automatically continues to function and we 

5 wouldn't do anything but that if a school I guess, Steve, the 

6 situation would be if we wanted if we were to have a school 

7 sign a new program participation agreement that that 

8 eliminated the program that failed, if the school refused to 

9 do that, where we would how we would proceed.

10 MR. FINLEY: Yeah. I mean, what you're seeing right 

11 now just kind of captures the process the Department has. 

12 There are three options there. It's the same options that are 

13 there for institutions that fail financial responsibility 

14 based on whether they're fully certified or not. So this is 

15 just actually highlighting what that procedure would be here. 

16 And we never did reach it in the earlier GE regulations, but 

17 it's exactly the same choice as we were faced with.

18 MS. FAST: Thank you for clarifying. I guess one 

19 reason I was confused was that my understanding was that the 

20 200, the 2014 rule had some sort of mechanisms for appeal and 

21 that this termination process also provides a mechanism for 

22 appeal. So would people be able to appeal twice? That was why 

23 I was confused. I thought that this was a was a new a new and 

24 different way. But if you're saying this is the same, then 

25 that's that helps to clarify that this is not a new problem. 

26 But it does seem to be a concern that the Department chose to 

27 not take action or didn't get around to taking action, 

28 students would continue to be harmed for a long period of 

29 time.
Committee Meetings - 03/15/22 58

1 MR. MARTIN: Well, I pointed out about the previous 

2 rule. The only the only really stated appeal in there was, was 

3 earnings appeal, which we don't which we've eliminated this 

4 time. So that was an earnings appeal based on whether or not a 

5 reported earnings, Social Security earnings were actually 

6 indicative of real earnings, if like for tipped employees or 

7 something. That was the only that was the only appeal that was 

8 stated in the regulations. These appeals the appeal that 

9 Steve's talking about with respect to subpart G still existed. 

10 It wasn't it wasn't spelled out in that regulation. But I 

11 guess the point here is that nothing is different here with 

12 respect to that. We just have put it in the regulation.

13 MS. MILLER: Thank you. Barmak.

14 MR. NASSIRIAN: Yes. I'd like to go to a 668.91 on 

15 page 17, the new language that the Department has added. And 

16 I've mentioned this before, and this is only a very meek 

17 suggestion that the Department can take under advisement. I'm 

18 not asking for any amendatory of the text today, but in the 

19 highly improbable event that we may not arrive at consensus, 

20 the Department may decide to contemplate some modification. I 

21 had initially mentioned the waiver that obviously didn't take. 

22 So I'm thinking that maybe in this romanette six, you may want 

23 to give yourself a little bit of leeway, I think Anne had 

24 previously mentioned the disparities that you sometimes see 

25 between county level macroeconomic conditions and state level 

26 conditions, and it may help the Department diffuse some of the 

27 pressure that may come from those kinds of concerns, as well 

28 as the concern I have that there may well be specific programs 

29 that are devised to address specific populations with 
Committee Meetings - 03/15/22 59

1 particular issues. I'm thinking of people with disabilities, 

2 for example, where you may have a program that enables them to 

3 earn some wages. It may fall short for various reasons of a 

4 high school threshold, but may still represent a net gain. So 

5 it may be helpful to the Department in this section to give 

6 itself a little more leeway by acknowledging at least a couple 

7 of potential rounds. And it has to be very carefully worded 

8 obviously where the where the hearing official may, in fact, 

9 reverse the automatic output of the algorithm. This is just a 

10 suggestion. I don't insist on it. It's not going to be 

11 determinative of the way I'm going to vote today. But I just 

12 think in case there is no consensus, this could be an 

13 additional improvement the Department could make. Thank you.

14 MR. MARTIN: Thanks, Barmak. I'll take that back.

15 MS. MILLER: Thank you. Okay, Greg, we're almost 

16 there, I think. Take us into the next section.

17 MR. MARTIN: Yes, we are at 668.43. And that is 

18 institutional and programmatic information. So again, the, and 

19 it's there already. So we'll start in D, which is we've 

20 clarified some we've just clarified some, items in this 

21 section, made some, did some clean-up here as you can see. 

22 Nothing really, changed. We have left the language open-ended 

23 here to allow the Secretary to use the best available 

24 information, which in some cases may be a programmatic 

25 calculation and others may include institutional information. 

26 So just wanted to point that out. And that is and then if we 

27 move over to D, D2, program web pages. At the suggestion of 

28 negotiators, we have emphasized that this link must be 

29 prominent to ensure institutions cannot evade the 
Committee Meetings - 03/15/22 60

1 requirements. So under the program web page disclosure, the 

2 institution must provide a prominent link to and any other 

3 needed information to access the website maintained by the 

4 Secretary or any web page containing academic cause, financial 

5 aid or admissions information about the program or the 

6 institution. The Secretary may require the institution to 

7 modify the web page if the information is not sufficiently 

8 prominent, readily accessible, clear, conspicuous or direct. 

9 And that is the last change for 43. And I think just because 

10 they're so different, even though there wasn't much in 43, I 

11 will ask if there's any comments there before I move to 

12 668.13.

13 MS. MILLER: Thank you. Anne. 

14 DR. KRESS: I have a question about the change from 

15 will to may in user testing. One of the things we found is 

16 that having input from students on disclosures has been 

17 incredibly important in making sure that the folks for whom 

18 that information is being gathered and promulgated actually 

19 understand it. And is there a reason why the Department has 

20 moved away from requiring it to saying that it may require?

21 MR. MARTIN: One moment, please. Yeah, so, you're 

22 talking about in 1, right? D1 disclosure?

23 DR. KRESS: Correct. Where it used to say the 

24 Secretary will, and now it says the Secretary may.

25 MR. MARTIN: It's just to provide to provide us 

26 flexibility on the use of the consumer testing to inform, and 

27 it's as opposed to obligating the Secretary through regulation 

28 or regulating ourselves to have to do it. We do, we do, we do 
Committee Meetings - 03/15/22 61

1 regularly conduct consumer testing and do put a lot of stock 

2 in it. So not to suggest we're disinclined to do it, but this 

3 just gives us flex- this gives us flexibility. I'm guessing 

4 you would prefer will, right?

5 DR. KRESS: Yeah, I would just say, you know, 

6 especially as somebody who works at a two-year institution 

7 where a strong percentage of our students are first 

8 generation, in some cases, they're not just first generation 

9 college students, the first generation high school graduates 

10 in their family. And a lot of the information that we're being 

11 asked to disclose by the Department is incredibly complicated. 

12 And you know there's a purpose for that disclosure. And the 

13 purpose is lost if the way the information is presented is 

14 makes it illegible effectively, it might as well be invisible 

15 to the folks who really need to use it.

16 MR. MARTIN: Yeah. I mean, I think that I can say 

17 that we are committed to doing you know consumer testing. As I 

18 said, this does give us, intended to give us more flexibility 

19 as opposed to locking us in. But I will I'll take back the 

20 comment.

21 MS. MILLER: We have a little less than 15 minutes 

22 before public comments. So we'll go to Jamie.

23 MS. STUDLEY: Thank you very much. I think the 

24 changes about prominent in two is a good one to make clear 

25 what that purpose is. And as I understand it, that two and 

26 three are really the heart of this in terms of the added 

27 requirements under these regulations. That's where the 

28 Department is requiring institutions to do something that they 
Committee Meetings - 03/15/22 62

1 have not done before and that the Department expects them to 

2 do. You've heard my concerns about D1 romanette I. The primary 

3 occupations issue. And one way to solve the fact that this is 

4 not a good match for some programs but is directly related to 

5 some others would be to narrow the effect of little I, the 

6 primary occupations to it, to programs for which an actual 

7 connection to a primary occupation or preparation for Gainful 

8 Employment in a recognized occupation would be to align it 

9 with the other provisions where there are identifiable 

10 occupations related to that program. History does not have a 

11 primary occupation. It's not proclaiming to prepare people to 

12 be historians. If, so, there is a policy suggestion for 

13 narrowing the scope of that. If what you're saying, 

14 Department, is that this is not a requirement, these are 

15 examples of items that the Secretary might consider as the 

16 Secretary conducts further analysis of these possible data 

17 points and consults and conducts consumer testing, then I 

18 would take your suggestion that the how of those elements or 

19 whether particular elements are useful will happen at another 

20 time and place. That would be fine. If these are requirements 

21 here, I feel very strongly about the fact that I is not 

22 applicable and should be different.

23 MR. MARTIN: Yeah. Going back to the root there in 

24 one, an institution must provide such information as the 

25 Secretary prescribes. That's a must. In a Federal, and we will 

26 publish that the Federal Register notice, which we did with 

27 the previous regulation as well, though, and we are 

28 introducing the website established by the Secretary, which is 

29 also new, and I'm actually pretty excited about that prospect. 

30 The Secretary may conduct consumer testing and the Secretary 
Committee Meetings - 03/15/22 63

1 may include on the website the following information, among 

2 other items. So this is not this is not an exhaustive list of 

3 what can be required, nor is it indicative of our intention to 

4 require all of it every year. And certainly take your take 

5 your point about the SOC, the SOC codes and certain types of 

6 programs that may not match exactly, but it is not intended to 

7 be a list of this list is what schools must report every year 

8 or disclose every year.

9 MS. STUDLEY: Okay.

10 MR. MARTIN: So we just want to I want to point that 

11 out, but I still will take back your suggestion for changes to 

12 that language in the event that we would be requiring 

13 something like that for the Federal Registers.

14 MS. STUDLEY: Okay. I appreciate that. So two and 

15 three are requirements. And the first sentence is at the time 

16 that the Secretary does publish such a notice, you must do 

17 what the Secretary then tells you to do.

18 MR. MARTIN: Yeah. If you'll remember back to the 

19 previous, the previous rule that we, we published the 

20 registers and we never, to my knowledge, never included 

21 everything that we that we had on the ones [inaudible] 

22 disclosed.

23 MS. STUDLEY: I appreciate that clarification.

24 MR. MARTIN: Sure, my pleasure. 

25 MS. MILLER: Thank you, Jamie. Brad.
Committee Meetings - 03/15/22 64

1 MR. ADAMS: I just had a quick question in 668.483 D1 

2 romanette eight and nine. And just you know given the fact 

3 that all programs within the proprietary sector are pretty 

4 much subject to the GE rule, is there anything else in eight 

5 and nine that would be expected for us to provide? And is this 

6 a, you know, this median debt and median earnings, is that a 

7 CIP, a four-digit CIP at the program as described here? Do you 

8 know exactly what you're asking for here?

9 MR. MARTIN: Yeah. This would be at the four-digit 

10 CIP and it would be we would it would be as calculated by the 

11 Secretary. So we would, there would be no, the only thing that 

12 would be incumbent on the institution is to provide the link 

13 to the Secretary's website where we would be disclosing all 

14 this information15 MR. ADAMS: Okay. Thank you. 

16 MR. MARTIN: -for your institution's programs.

17 MS. MILLER: Emmanual.

18 MR. GUILLORY: I wanted to make a comment regarding 

19 the appeals process before, but I can do that later. I just 

20 want to do it before the day is over.

21 MR. MARTIN: Go ahead, Emmanual.

22 MR. GUILLORY: Okay. So your response to our concern 

23 with the appeals process is that the in the administrative 

24 data piece, that they need to report data accurately to the 

25 COD system, NSLDS, and then there are 60 days at the end of, 

26 there are 60 days that they can ensure that the data they 
Committee Meetings - 03/15/22 65

1 reported is accurate. So therefore, there doesn't need to be 

2 any sort of review of the debt-to-earnings, failed rates if 

3 they fail because the data they report should be accurate. And 

4 I don't, that response really troubles me for those that I'm 

5 obviously representing. And one of the big reasons is because 

6 even like, for example, with the cohort default rate process, 

7 which is what we kind of modeled our proposed appeals process 

8 off of, even that process allows for institutions through an 

9 incorrect data challenge to challenge the draft CDR rates with 

10 the data manager that is reviewing and an institution that has 

11 the ability to just ensure, it literally says the data manager 

12 should agree with the school if the if the data manager's 

13 documentation supports the school's claim or if the school has 

14 demonstrated that the data manager has failed to take into 

15 account correct information the school sent to the data 

16 manager or the National Student Loan Data System. So even 

17 though an institution is putting you know reporting data to 

18 NSLDS or you know, the COD system, IPEDS, however it's being 

19 reported if there is a metric that's being used from the 

20 reported data to make a determination, especially one that 

21 results in loss of Title IV eligibility, the ability of the 

22 institution to say, ho, wait a minute, you know, we report it 

23 this way, but we see that you calculated another way or you 

24 didn't quite get the right something about that was not 

25 accurate in how you captured our data, we just want to make 

26 sure there's you know two eyes on this before we lose Title IV 

27 eligibility, and our students can't use their loans to go to 

28 this particular program. So I just felt you know as everyone's 

29 been talking and we've been moving along, I've been 

30 researching, going back through documents because it just 
Committee Meetings - 03/15/22 66

1 doesn't seem right or seem fair. But once again, I want to 

2 make sure the bad actors are taken care of for sure. I just 

3 want to make sure that before we take any firm, hardcore 

4 action on these programs that are serving, that are you know 

5 are good, good acting programs at good institutions, you know, 

6 they're not out to defraud or do anything like that, that the 

7 data truly is accurate. So I just wanted to- we still think 

8 that it should, the institution should be allowed to appeal a 

9 failed rate.

10 MR. MARTIN: You're talking about more or less a data 

11 challenge. We're talking about before there's any action by 

12 the Department to take away eligibility, to challenge the 

13 challenge the data such as a Completer List, right?

14 MR. GUILLORY: Well, yes, such as a Completer List 

15 or, you know, the items that you have listed in 404 and 405. 

16 MR. MARTIN: Right.

17 MR. GUILLORY: Before they become eligible.

18 MR. MARTIN: Alright. Thank you. I'll take the back.

19 MR. GUILLORY: Thank you, Greg. 

20 MS. MILLER: Greg, we have about three minutes till 

21 public comment. Did you want to move into the next section?

22 MR. MARTIN: Yeah, I guess we could briefly. I think 

23 we'll postpone any consensus vote until tomorrow, if that's 

24 okay with everybody. Give everybody a chance to sleep on it, 

25 have a few drinks, whatever is necessary. So, you know, but if 

26 we have, yeah, let's pull it up. And we've already gone 
Committee Meetings - 03/15/22 67

1 through a lot of this already. So as Emmanual joked before, 

2 we've kind of been coming back to this this section 

3 throughout. So this is the certification procedures. It's 

4 about the supplementary performance measures. I think I 

5 already described it. We, I'll just say here that at the 

6 negotiators' suggestion, we have moved the supplementary 

7 performance measures to a new subsection in the certification 

8 procedures and but we've left them in the issue paper for 

9 convenience and consideration and we've also put down here and 

10 I want to point out in six, the licensure pass rate, which is 

11 a this is a new additional item to the supplementary 

12 performance measure. So I think the other ones I already 

13 walked through in when I was addressing Emmanual's comment 

14 before. So I don't know that we really have, we're at three 

15 minutes. I think I'll leave it to the facilitators how much 

16 time we have for comments.

17 MS. MILLER: It looks like Debbie has a comment and 

18 then we'll move to public comment. So, Debbie, please.

19 MS. COCHRANE: Thank you. My comment was just to 

20 follow up on the comment I had made earlier, the suggestion 

21 around the consideration of a transition period or some sort 

22 of way that would allow kind of the theory of change for all 

23 the various actors, students, institutions, states to kind of 

24 to make the adjustments they need to make with regard to a 

25 rule. So I would love to have a response to that before 

26 there's a vote taken.

27 MR. MARTIN: Okay.
Committee Meetings - 03/15/22 68

1 MS. MILLER: Emmanual, your right under the wire, so, 

2 please.

3 MR. GUILLORY: Just one quick technical correction. I 

4 think that under the small program rates, that should be four, 

5 romanette four, and then five, six and seven. It says three 

6 twice, so I just, just a small technical.

7 MR. MARTIN: It's something new we're introducing. 

8 It's called the double three. Obviously you haven't heard. No, 

9 I'm just kidding. That is [inaudible]

10 MS. MILLER: Okay. Thank you all, everyone. And we 

11 will delay the consensus vote until tomorrow. Now is the time 

12 for public comment. So, Brady, do we have. Who do we have up 

13 first?

14 MR. ROBERTS: I'm admitting our first speaker, Kristy 

15 Aviles, who's representing themselves.

16 MS. MILLER: Kristy, are you with us?

17 MR. ROBERTS: She should be able to hear us. Kristy, 

18 can you hear us? I can admit the next speaker and message her.

19 MS. MILLER: Okay.

20 MR. ROBERTS: So, the next speaker is Jason 

21 Beardsley, who's here representing the Association of the 

22 United States Navy.

23 MS. MILLER: Jason, are you with us? Hello?

24 MR. BEARDSLEY: Hi. How are you?
Committee Meetings - 03/15/22 69

1 MS. MILLER: I'm well. How are you?

2 MR. BEARDSLEY: Excellent, thank you.

3 MS. MILLER: Okay, so you have three minutes for 

4 comment, beginning when you're ready.

5 MR. BEARDSLEY: Thank you. Well, my name is Jason 

6 Beardsley. I am the executive director of the Association of 

7 the United States Navy. And I want to thank you first for the 

8 opportunity to speak today. Last year, as you know, Congress 

9 amended the 90/10 rule. We believe that's in a way that will 

10 actually hurt veterans. And while the change was championed by 

11 certain groups that propose to support veterans, we think it's 

12 actually going to damage them and ripple through the community 

13 in ways that we advise some opportunities for flexibility. A 

14 couple of ways we think it'll hurt. One, it's going to shut 

15 down programs that are currently close to the 90/10 threshold, 

16 and that's going to force the displaced veterans into programs 

17 that actually have less federal oversight. The protections or 

18 as they're called, protections, we don't think they're needed 

19 right now. The Federal Government as-is currently has the 

20 authority to crack down on institutions where it's appropriate 

21 and where we've seen organizations that are looking to fleece 

22 veterans of their benefits or out of the parts of their 

23 dollars that they have earned. This, to us, is critical 

24 because, of course, we've actually watched organizations that 

25 have been put out of business, rightly so. So you already have 

26 the authority. When you create these additional hurdles for 

27 the remaining institutions, it effectively acts as shutting 

28 the door for profit sources of education. And that, of course 

29 robs veterans of their choice on education dollars. We do 
Committee Meetings - 03/15/22 70

1 understand that Congress has spoken on this. We know this 

2 issue from the Department of Education, though, we think the 

3 flexibility is there to provide veterans protection in a way 

4 that we believe you intended. So first, we're asking for rule 

5 makers to create a waiver, a waiver that would be against the 

6 90/10 rule for institutions, for example, that demonstrate 

7 good performance or a waiver that could apply to schools that 

8 have a standard like those schools that are consistently 

9 helping graduates land great paying or good paying jobs. Or 

10 maybe look at schools that are producing graduates with 

11 manageable levels of student debt. This waiver system, if you 

12 implemented, works with the Congress's intent about the GI 

13 Bill, which we believe is to ensure that it's the most 

14 efficient and effective use of GI Bill funding. Secondly, 

15 we're also calling on the Department of Education and another 

16 way to push for something very meaningful, which is the 

17 publication of Gainful Employment data. We think that this is 

18 the way that every student and every veteran can make19 MS. JEFFRIES: 30 seconds, Jason.

20 MR. BEARDSLEY: Thank you. Every veteran can make an 

21 informed choice with their education dollars in mind. And I 

22 believe that access to that kind of data is going to clarify 

23 more than any federal rule, regulation or law which programs 

24 are worthwhile and which are not. So I want to thank you again 

25 for the opportunity to testify. We hope you consider these 

26 modifications as you implement this law.

27 MS. MILLER: Thank you so much, Jason. Brady, who do 

28 we have next?
Committee Meetings - 03/15/22 71

1 MR. ROBERTS: I'm going to give Kristy another try. 

2 They exited the meeting but then reentered so we can see, 

3 Kristy, are you able to hear us? I can keep working with them. 

4 Let me admit the next speaker. So the next speaker is Mark 

5 Dreyfus, who's representing ECPI University. 

6 MS. MILLER: Thank you. Mark, are you with us?

7 MS. JEFFRIES: Rozmyn, as Mark is connecting, I just 

8 want to reach out again to the people who register for public 

9 comment that now is the time you need to be logging in so that 

10 you know we can call on you in accordance with the registry 

11 that we have. So please, we encourage you to log into the 

12 meeting as soon as you possibly can. Thank you.

13 MR. ROBERTS: And Mark, it looks like is in the 

14 meeting. Mark, can you hear us?

15 MR. DREYFUS: I can. I can.

16 MS. MILLER: Welcome, Mark. So you have three minutes 

17 for comments beginning when you're ready.

18 MR. DREYFUS: Great. Good afternoon. I'm Mark 

19 Dreyfus, President of ECPI University. For over 56 years, our 

20 institution has served the densest military community in the 

21 country. And because of our success, 4,000 veterans enroll 

22 annually with 1,100 graduates, 72 percent from STEM and 

23 nursing programs. While 60 percent of our students did not 

24 find success at other colleges, our outcomes with veterans 

25 exceed local public colleges, often by shocking margins. 

26 Obviously, we have followed the history of the 90/10 laws and 

27 have listened closely to concerns expressed by Congress and 
Committee Meetings - 03/15/22 72

1 advocates about closing the loophole. The issue from all 

2 veterans and advocacy groups was to eliminate the incentive to 

3 aggressively recruit veterans. Also, many stated that a 

4 quality institution would need to have students or third 

5 parties willing to pay out of pocket for education. It is 

6 clear this rulemaking process, by restricting and reducing 

7 what is counted in the 10, is going beyond the recently 

8 revised law by Congress and not consistent with other 

9 bipartisan proposals by Congress to clarify its intent. 

10 Congress has now provided Pell Grants for short-term programs, 

11 recognizing the change in workforce development to more micro 

12 credentials and apprenticeships. The Department's proposed 

13 language, conversely, narrows what counts in the 10 by not 

14 giving proper consideration to the present state of workforce 

15 development, custom training, nor employer partnerships. 

16 Congress was clear that non-Title IV education can be included 

17 in the formula in a number of circumstances. The recent 

18 Affordability Act, passed by the House with full Democrat 

19 support, included language to clarify most education 

20 contracted or sponsored by employers is to be included. My 

21 institution contracts with many companies and organizations, 

22 including the Department of Defense and the US Department of 

23 Education, most of it on the employer's site or some hybrid. 

24 For example, Volvo Manufacturing in South Carolina contracted 

25 to provide a portion of our eligible electronics program as an 

26 apprenticeship at their facility. Incredibly, the Department 

27 of Education proposals would not count that in the formula for 

28 multiple reasons. A dual enrollment program provided for 

29 underserved high school students paid by a local school board 

30 also would not count. Customized programs we provide for 
Committee Meetings - 03/15/22 73

1 Boeing's employees at their site would not count. Perversely, 

2 increasing tuition causing students to incur more debt would 

3 improve our 90/10 compliance, all of which goes against our 

4 institutional goal of keeping tuition [30 seconds] by 

5 averaging less than 2 percent increases for a very long time. 

6 We should be encouraging and rewarding institutions that win 

7 competitive educational partnerships with employers and 

8 recognize that employers are very good at identifying quality 

9 and value. I urge the Department and the Committee to redirect 

10 its focus on the recent change by Congress and the overarching 

11 intent of this rule so we can agree and be done with this 

12 regulation once and for all. Recognize you have many other 

13 measures of quality being promulgated as well. My institution 

14 can15 MS. JEFFRIES: Your time is up, Mark. Thank you.

16 MS. MILLER: Brady. And I believe Kristy is with us 

17 now. Hello, Kristy.

18 MS. AVILES: Hi.

19 MS. MILLER: Hi. So you have three minutes to 

20 comment, beginning when you're ready.

21 MS. AVILES: Okay. Hello. Thank you to the Negotiated 

22 Rulemaking Committee for having me today. My name is Kristy 

23 Aviles, and my story illustrates why the Department of 

24 Education should use its authority to encourage institutions 

25 to end transcript withholding practices that lock aspiring 

26 students out of higher education and hold their credits 

27 degrees ransom. My experience took place in 2015. I lived with 

28 my parents at the time. We were a lower middle class family 
Committee Meetings - 03/15/22 74

1 and I was working as an administrative assistant, making $12 

2 an hour helping my family get by. I was on my way to my second 

3 year in community college and had attempted to transfer to a 

4 different school to continue my education and obtain my 

5 associate's degree. It was at this point in my life when I 

6 learned through the Community College Finance Department that 

7 there was an internal misunderstanding between the Finance 

8 Department and Federal Student Aid. The amounts I received in 

9 Federal Student Aid didn't cover my tuition balance. 

10 Therefore, my transcripts were withheld. In consequence to 

11 this withholding, I was unable to finish my education journey 

12 and was set back years of progress. This setback was and still 

13 is detrimental to my success in society and my personal gain. 

14 After being laid off from my job, I was unable to make 

15 payments for the following eight months and took an extra six 

16 to eight months of financing to pay off all debt, while only 

17 making $13 an hour as a part-time cashier at a local grocery 

18 store. Transcript withholding delayed my education, and 

19 because of this withholding, I missed out on opportunities 

20 that would have been presented to me had I remained tracked 

21 towards my higher education goals. I should have been on my 

22 master's program by now, but I will need to pursue other 

23 endeavors in the meantime. Today, I have yet to acquire my 

24 associates because transcript withholding made that very 

25 impossible for me to achieve this, I am unable to finish my 

26 associates now due to the pandemic and misaligned schedules. 

27 Yet, this all could have been prevented had my transcripts not 

28 been withheld from me. This is an experience no one should 

29 ever encounter in their educational journey. It is ridiculous 

30 to have something as simple as transcripts held hostage due to 
Committee Meetings - 03/15/22 75

1 one's inability to pay their remaining debts, especially for 

2 those who can barely make ends meet. Families and persons like 

3 myself who are attempting to set themselves up and the youth 

4 for success who come from communities where it is difficult 

5 and challenging to get by with little education should be free 

6 for all and not an economic disadvantage. I am urging you to 

7 please stop withholding our transcripts. Let us move onward 

8 with our education so that we may have a chance to be 

9 somebody. Many citizens in America already live in a society 

10 that influences them to believe that the [30 seconds]. Please 

11 don't make education and schooling one of those odds. Thank 

12 you.

13 MS. JEFFRIES: Thank you, Kristy. Brady, who do we 

14 have next?

15 MR. ROBERTS: I'm now admitting Jessica Gill, who's 

16 here representing the European Wax Center.

17 MS. JEFFRIES: Jessica. Jessica, are you with us?

18 MR. ROBERTS: I think Jessica is able to hear us now.

19 MS. JEFFRIES: Jessica, can you hear me?

20 MS. GILL: Yes, I can hear you. Can you hear me?

21 MS. JEFFRIES: Yes, we can. It's up to you if you 

22 want to come on camera or not. You will have three minutes for 

23 your public comment, and that three minutes can begin as soon 

24 as you begin speaking, whenever you're ready.

25 MS. GILL: Awesome. Thank you. So my name is Jessica 

26 Gill. I am the Director of Industry Relations and Engagement 
Committee Meetings - 03/15/22 76

1 at European Wax Center. Thank you guys for the opportunity to 

2 provide my views to the Department of Education. So the voice 

3 of employers and small businesses has been notably absent from 

4 this rulemaking, which is troubling. European Wax Center is a 

5 national franchise, we're over 800 locations across 42 states. 

6 These independently owned and operated locations employ 

7 approximately 10 to 15 employees per center. This equates to 

8 about 10,000 franchise employers or employees across the US. 

9 So we hire directly from cosmetology schools, and without 

10 these schools, our franchise network would not be able to meet 

11 their employment needs and serve their customers. Nor could we 

12 as a brand execute on our growth plans. This year alone, we 

13 plan to open more than 60 locations or 60 more locations. Each 

14 of our centers are small businesses that provide individuals 

15 with an opportunity to provide in-demand consumer services and 

16 establish a successful business. Consumer demand for skin care 

17 and waxing is growing rapidly. So again, many of our centers 

18 and franchisees work directly with the schools in their area 

19 to employ the students that come from proprietary cosmetology 

20 schools. So the Department must be cognizant that it does not 

21 broadcast regulations that put these schools out of business 

22 when they meet a strong workforce demand. Our franchisees 

23 again have strong established relationships with cosmetology 

24 schools, and they provide them with trained graduates ready to 

25 be employed right out of school. And they're essential to our 

26 success. The demand for skin care specialists is projected to 

27 grow about 29 percent through 2030, and these positions are 

28 often part-time and flexible that meet the needs of women with 

29 young families. So it's essential that the Department 

30 considers the needs of employers and small businesses when 
Committee Meetings - 03/15/22 77

1 finalizing these regulations. Thank you for the time and have 

2 a great afternoon.

3 MS. JEFFRIES: Thank you, Jessica. Brady, who are you 

4 admitting next?

5 MR. ROBERTS: I just admitted Bernard Hilton, who is 

6 a veteran representing themselves.

7 MS. JEFFRIES: Bernard, can you hear me?

8 MR. HILTON: Yes. Can you hear me?

9 MS. JEFFRIES: Yes. You have three minutes to speak 

10 and you can begin now.

11 MR. HILTON: Okay. Thank you. Good afternoon. My name 

12 is Bernard Hilton. I'm a Marine Corps veteran, having served 

13 22 years. I enrolled in a two-year program at Le Cordon Bleu 

14 culinary college in Scottsdale, Arizona. One year into the 

15 program, I was granted a medical leave of absence. While on 

16 medical leave, 11 Le Cordon Bleu schools across the United 

17 States closed before I could return and complete my education. 

18 When I enrolled, I was told that the school had a job 

19 placement program where recruiters will come to campus and 

20 hire the students. The school touted top level chef training 

21 and alumni who went to the set up their own restaurants. I was 

22 also told that graduates make 60 to $70,000 per year after 

23 graduation. After enrollment, I started going to the job fairs 

24 held on campus, speaking with speaking with and handing out 

25 resumes to potential employers. Rarely did I get a response. 

26 When I did hear back, I was told that I would need to start 

27 out as a dishwasher or prep cook. After hearing the same 
Committee Meetings - 03/15/22 78

1 answer several times, I complained to the school. I was told 

2 to continue applying to different places, but kept getting the 

3 same answer from employers. I received, I realized that the 

4 schools didn't have and value the education of Le Cordon Bleu, 

5 the employers. Each restaurant has their own way of preparing 

6 meals and they prefer to hire new people that start at the 

7 bottom and move their way up. This means I would have to wash 

8 dishes and prepare ingredients for months or even years before 

9 I could minimally be involved with cooking. When I ran out of 

10 the VA benefits, the school told me to sign a few forms. The 

11 process was so streamlined and automated that I didn't realize 

12 I was taking out Federal Student Loans. I knew very little 

13 about student loans and received no explanation from the 

14 school about what was going what I was getting myself into. 

15 When the school closed, the administrators told us that our 

16 student loans would be forgiven because of the closure. I 

17 thought that would be automatic. Years later, I have realized 

18 that I still have these loans and the loans have accrued to 

19 close to $40,000 and sent to collections. I applied for a 

20 closed school discharge but my application was denied by the 

21 collection department. I requested in writing reasons for the 

22 decision. They sent me only copies of loan documents as 

23 justification for the denial. My request is that I-. 

24 MR. ROBERTS: 30 seconds, Bernard.

25 MR. HILTON: Excuse me? 

26 MR. ROBERTS: 30 seconds remaining in your public 

27 comment.
Committee Meetings - 03/15/22 79

1 MR. HILTON: Okay, I hope that you develop rules to 

2 restrict the school's ability to lie to students. In addition 

3 to hope you consider mandating that collection agents provide 

4 real proof and evidence when requested by the student. This 

5 activity is on my credit report and is affecting my family 

6 tremendously. Thank you for your time.

7 MS. JEFFRIES: Thank you, Brendan [ph]. Brady, who's 

8 next?

9 MR. ROBERTS: I just admitted David Cohen, who's here 

10 representing Five Towns College. Looks like they are11 MS. JEFFRIES: He's connecting [inaudible]. Welcome, 

12 David. Can you hear me?

13 MR. COHEN: Yes, I can.

14 MS. JEFFRIES: Wonderful. Well, welcome to public 

15 comment. You have three minutes for your comment, and you're 

16 free to take that away anytime you're ready.

17 MR. COHEN: Oh, okay, great. Thank you very much. 

18 Thank you. My name is David Cohen, and I'm the president of 

19 Five Towns College, a doctoral granting proprietary 

20 institution chartered by the New York State Board of Regents 

21 over 50 years ago. Five Towns focuses on music, teach- music, 

22 teacher education, media, and the performing arts. Five Towns 

23 College has strong outcomes and has earned accreditation from 

24 Middle States, Cape, NAST, and NASM. Indeed, Five Towns is the 

25 only NASM-accredited doctoral granting music college on Long 

26 Island. According to data published by the Department, Five 

27 Towns has the lowest net average tuition of all schools with 
Committee Meetings - 03/15/22 80

1 whom it competes. At $18,000 dollars per year, our net average 

2 tuition is half to two-thirds less than all of the private 

3 colleges in downstate New York. And so today, I'm here to urge 

4 you not to remake the GE rule. How GE affects the Five Towns 

5 College Music Program illustrates the irrationality of the 

6 rule. Of the music programs for which the Department has 

7 usable data, only 23 institutions in the entire nation would 

8 pass and fully 68 would fail to fail the GE rule, including 

9 Five Towns. Fully three times as many institutions fail than 

10 pass. Of the 11 Department recognized music programs in New 

11 York, nine fail and two land in the zone. None passed. Zero. 

12 And so the rule is irrational because in New York State, only 

13 the most affordable music college, only the college that does 

14 doctoral granting and has earned national accreditation, only 

15 Five Towns College will lose Title IV eligibility. For the 

16 rest of the unaccredited, higher-priced music schools, there 

17 is no penalty. None. As a practical matter, not only would the 

18 GE outcomes of New York schools fail to improve as a result of 

19 remaking the rule, but also our students would be forced to 

20 spend twice as much money on tuition and to increase their 

21 student debt load, all for the privilege of attending another 

22 school with a failing GE ratio. The result is simply 

23 irrational. If the rule is to be remade, we offer the 

24 following suggestions. Make consumer disclosure the penalty 

25 for failing ratios and apply the rule26 MR. ROBERTS: 30 seconds remaining, David.

27 MR. COHEN: -to all schools in America. Instead of 

28 removing Title IV eligibility, work to enhance institutions by 

29 requiring programmatic accreditation. Three, decouple Pell 
Committee Meetings - 03/15/22 81

1 from loans. The penalty for failing GE ratios should be 

2 limited to the loss of loan eligibility. By allowing students 

3 to retain Pell Grant eligibility, the GE ratios will correct 

4 themselves over time. If you- four, if you must remake GE, 

5 student debt should first be counted towards residential 

6 charges and not7 MR. ROBERTS: Three minutes, David, I'm sorry.

8 MR. COHEN: -towards tuition. Am I done?

9 MR. ROBERTS: You are. Thank you.

10 MS. JEFFRIES: Thank you, David. Okay, Brady, who is 

11 next?

12 MR. ROBERTS: Cindy, I just submitted Brendan 

13 Mullican, who is a veteran representing themselves.

14 MS. JEFFRIES: Good afternoon, Brendan. Can you hear 

15 me? Good afternoon, Brendan. Can you hear me?

16 MR. MULLICAN: Yes, ma'am.

17 MS. JEFFRIES: Wonderful. Perfect. Well, welcome to 

18 public comment. You have three minutes for your public 

19 comment, and that begins whenever you're ready to take it 

20 away.

21 MR. MULLICAN: Thank you. Good afternoon. My name is 

22 Brendan Mullican and I'm a veteran of the US Navy and served 

23 in the Iraq War. I decided to use my GI Bill benefits to earn 

24 a bachelor's degree from Sam Houston State, a school that's 

25 supposedly veteran friendly. When I received my degree in 
Committee Meetings - 03/15/22 82

1 2013, it was a point of pride for me as I was the first person 

2 in my family to go to college. I was fortunate to get a job 

3 right after college, but was told in order to move up in the 

4 company and receive a higher paycheck, I would need to go back 

5 to school and take some accounting classes. I decided to learn 

6 my job for a while but hope to eventually take some classes 

7 down the road as I continued to work, but I never got the 

8 chance. During my final semester at Sam Houston State, I had 

9 been told my account had a zero balance. A year later, I was 

10 sent a bill for nearly $10,000 dollars, claiming my GI 

11 benefits had run out and then I had to pay out of pocket. This 

12 baffled me and I had emails from the school informing me my 

13 balance was in fact zero, as well as my own receipts keeping 

14 track of the tuition bills. I disputed the bill with my 

15 information, but nothing came from it. I've been trying to 

16 pursue my state CPA exam and master's degree for more than 

17 four years, but I'm unable to because Sam Houston refuses to 

18 release my transcript because of the debt they say I owe. At 

19 this point, it is affecting both my career and my income 

20 because I can't pursue further education. I do not understand 

21 how they can come after me for this debt when I have 

22 documented proof that I don't. Sam Houston went as far as to 

23 completely edit and change my invoice dates for tuition 

24 billing in order to try to collect the money. Adding insult to 

25 injury, the school then sent the debts to a collection agency 

26 without any knowledge, and I received a bill from that agency 

27 for $12,689 in 2017. I can't afford to pay this ridiculous 

28 amount. I have contacted the VA, the veterans advocacy 

29 organizations on campus, and my Congressman and senator, but I 

30 have received no help or advocacy from anyone. It seems 
Committee Meetings - 03/15/22 83

1 unethical. I regret going back to college. I can't believe 

2 they would treat me this way. They say they do things to help 

3 vets, but it's just a lie. I am I'm hoping by sharing my story 

4 with you today, will help prevent other veterans from going 

5 through what I did. Thank you for your time.

6 MS. JEFFRIES: Thank you, Brendan. Brady, who do we 

7 have next?

8 MR. ROBERTS: I just submitted Jason Altmire, who's 

9 here representing the Career Education Colleges and 

10 Universities.

11 MS. JEFFRIES: Okay. Jason, can you hear me?

12 MR. ROBERTS: It looks like he's still joining maybe 

13 [interposing]

14 MS. JEFFRIES: Okay. Jason, can you hear me?

15 MR. ROBERTS: Why don't I admit the next16 MS. JEFFRIES: Yeah, please do.

17 MR. ROBERTS: Okay. I just submitted Jordan Wicker, 

18 who is the executive director of the Invest in Student 

19 Advancement Alliance.

20 MS. JEFFRIES: Jordan, can you hear me? Good 

21 afternoon. Good afternoon, Jordan, can you hear me?

22 MR. WICKER: Yeah. I can hear you. Thank you. I 

23 thought you were talking to Jason. 
Committee Meetings - 03/15/22 84

1 MS. JEFFRIES: Okay, Jordan, do you have the live 

2 stream on in the background?

3 MR. WICKER: I do.

4 MS. JEFFRIES: Okay. You would be best served if you 

5 would shut that, shut the volume down on that.

6 MR. WICKER: Sorry about that. Can you hear me?

7 MS. JEFFRIES: No worries. Yes, we can. So, Jordan, 

8 you will have three minutes to, for your public comment, and 

9 that begins as soon as you take it away.

10 MR. WICKER: Thank you. My name is Jordan Wicker. I'm 

11 the executive director of the Invest in Student Advancement, 

12 or ISA Alliance, a membership organization of education ISA 

13 community, which believes in the positive potential of income 

14 dependent financing to improve access and affordability to 

15 high quality education. I'm speaking to the issue paper 

16 published last week on 90/10 under 34 CFR 668.28. The 

17 Department of Education's proposal for the Treatment of 

18 Education ISAs under the 90/10 rule exhibits a fundamental 

19 misunderstanding of the nature of ISAs. Unlike loans, ISAs do 

20 not have principal balance and do not charge interest. ISAs 

21 provide an alternative financing tool to private and PLUS 

22 Loans that shift the paradigm of education investment away 

23 from debt to income contingent obligations. Student payment 

24 obligations in an ISA are entirely dependent on future earned 

25 income. The Department's proposal would require ISAs to 

26 provide providers to impute an implied interest rate that may 

27 not have any relationship to the amount paid by the student 

28 and would mislead students in their choices on education 
Committee Meetings - 03/15/22 85

1 finance. Education ISAs are a fixed percentage of future 

2 income. This is a feature of ISAs. Those who earn less after 

3 school, pay less, while those who earn more, pay more. This 

4 feature allows the Education ISA providers to provide a 

5 downside protection and a minimum income threshold to students 

6 so that when students are earning less than the threshold, the 

7 student pays nothing. Education ISAs are capped as a fixed 

8 percentage of income above the minimum income threshold, a 

9 more meaningful measure of affordability than the imputed 

10 interest rate or actual interest rate, for that matter, on a 

11 private education loan. The number of ISA payments are 

12 contractually capped. If in those payments, a student pays 

13 less than the amount financed, the difference is effective 

14 effectively an outcome-based grant. Depending on the ISA 

15 program and the institution, some earners will pay more than 

16 the amount financed subject to a payment cap, which is the 

17 most a student would pay or could ever pay, potentially under 

18 the income dependent obligation. ISAs are also limited in 

19 duration. This is a calendar based limit regardless of the 

20 amount paid or the number of payments made. This protection 

21 guarantees a student, a former student's obligation will end 

22 in a predetermined amount of time and certainly not exist 

23 indefinitely, a protection that does not exist for private 

24 education loans. ISA should be regulated by the features they 

25 have [30 seconds] imputed. The Department seeks to impose a 

26 rate limit on ISAs for the purposes of the 90/10 rule that 

27 caps the imputed interest rate charged under the ISA to the 

28 interest rate under an unsubsidized Stafford Direct Loan. The 

29 Higher Education Act does not give the Department the 

30 authority to impose rate limits on ISAs, and the 
Committee Meetings - 03/15/22 86

1 Administrative Procedure Act prohibits it from making 

2 arbitrary decisions, like selecting an interest rate that is 

3 below that of what the Department charges for PLUS Loan 

4 borrowers. 

5 MR. ROBERTS: That's three minutes. I'm sorry.

6 MR. WICKER: This proposal is misguided and should be 

7 revised to prevent confusion among students and disrupt8 MS. JEFFRIES: Okay, Brady. 

9 MR. ROBERTS: Our final speaker for today is Kristina 

10 Pusok, who is representing the American Consumer Institute.

11 MS. MILLER: Kristina, can you hear me?

12 MS. PUSOK: Yes. I can hear you. Can you hear me?

13 MS. JEFFRIES: Yes, we can, and welcome to public 

14 comment. You have three minutes. You have 3 minutes for your 

15 public comment and that three minutes begins whenever you 

16 start speaking.

17 MS. PUSOK: Alright. Thank you. My name is Kristina 

18 Pusok, and I'm the director of policy and research at the 

19 American Consumer Institute. And on behalf of the institute, I 

20 want to express my concern with the proposed changes to the 

21 90/10 rule governing the share of revenue that a career 

22 colleges can receive from the Federal Government. At the 

23 Institute, we analyzed the role of proprietary institutions in 

24 higher education back in October. Our research shows that 

25 proprietary and career colleges provide a real value, offering 

26 educational and vocational opportunities to the sort of 
Committee Meetings - 03/15/22 87

1 students that the Department of Education should prioritize. 

2 Those are the nontraditional learners who might otherwise fall 

3 through the cracks. Through measures like open enrollment, 

4 flexible scheduling and career-oriented curriculum, those 

5 schools provide pathways to success for students who lack the 

6 academic credentials required by traditional state and 

7 nonprofit schools. And as the more traditional schools have 

8 avoided vocational training, for-profit career institutions 

9 have filled the gap, training students in fields that are in 

10 high demand, including home healthcare workers and auto 

11 mechanics. Transparency and accountability are necessary to 

12 reform education, but by focusing regulatory efforts solely on 

13 proprietary schools, the Department ensures that students at 

14 high performing for-profit schools will suffer while the 

15 failures of state and nonprofit schools remain unaccountable. 

16 These failures must be also must also be addressed. For 

17 example, research by the Independent Women's Forum notes that 

18 most four-year nonprofit schools would have to close their 

19 doors if subjected to the same Gainful Employment requirements 

20 the committee intends to restore in on for-profit colleges. 

21 Meanwhile, the successes of proprietary institutions are often 

22 overlooked. A recent Georgetown University study focused on 

23 return on investment for low income students found that when 

24 accounting for graduation rates and earnings of Pell Grant 

25 students, the bachelor level colleges with the best return on 

26 investment for low income students are two for-profit 

27 colleges, the Newman College of Art and Design and the SAE 

28 Expression College. The same study found that when ratings are 

29 designed to reflect graduation, graduation rates and long-term 

30 earnings, six of the top ten associate's level colleges were 
Committee Meetings - 03/15/22 88

1 private, for-profit institutions. If the Department truly 

2 wants to help students, then the best course of action would 

3 be [30 seconds] transparency and accountability measures to 

4 ensure that every student can get the quality education they 

5 need. For that to happen, these students need a fair hearing. 

6 With that in mind, we would request that these hearings be 

7 extended so that those who will be most adversely impacted by 

8 this proposed rulemaking get a fair and thorough hearing. 

9 Thank you.

10 MS. JEFFRIES: Thank you, Kristina. So that concludes 

11 our public comment for today. I just want to state one last 

12 time before we leave today, the plan for tomorrow is to finish 

13 up with the Gainful Employment document, including [audio] and 

14 then move into financial responsibilities. In addition to 

15 that, I do want to remind the public that the Department is 

16 unable to accept written comments during this period of time. 

17 You will have at least 30 days during the NPRM period to 

18 submit those comments for their consideration. So with that, I 

19 bid you all a good night and we will see you in the morning.

20 STATE OF NEW JERSEY

21 I, Jamie Young, Shorthand Reporter in and for the 

22 State of New Jersey, do hereby certify that the above and 

23 foregoing contains a true and correct transcription of the 

24 public hearing that was held by the Department of Education 

25 virtually, on March 15, 2022.

26 Certified by me this 20th day of March, 2022.
Committee Meetings - 03/15/22 89

1 JAMIE YOUNG

2 Precise Transcripts

3 45 North Broad St.

4 Ridgewood, NJ 07450

5 (201) 677-8496 

6 Department of Education, Office of Postsecondary 

7 Education

8 Zoom Chat Transcript

9 Institutional and Programmatic Eligibility Committee

10 Session 3, Day 2, Afternoon, March 15, 2022

11 From Sam Veeder (she/her/hers) to Everyone:

12 David is remaining in for FA through GE.

13 From Bradley Adams (P - Proprietary Institutions) to

14 Everyone:

15 Maybe states need to work on changing the hour 

16 thresholds so that it is not so expensive to get a cosmo 

17 degree.

18 From Anne Kress (P) Comm College to Everyone:

19 +1 Jamie

20 From Barmak Nassirian (A) Servicemembers & Vets to

21 Everyone:

22 +1 on Jamie's comments
Committee Meetings - 03/15/22 90

1 From Bradley Adams (P - Proprietary Institutions) to

2 Everyone:

3 https://twitter.com/gatesus/status/15020038810894172

4 24?s=21

5 From Bradley Adams (P - Proprietary Institutions) to

6 Everyone:

7 +1 Barmak

8 From Ernest Ezeugo (P) Students and Student Loan 

9 Borrowers to Everyone:

10 +1 Barmak

11 From Bradley Adams (P - Proprietary Institutions) to

12 Everyone:

13 earnings has nothing to do with school debt (meaning 

14 not charging as much in tuition does not change the programs 

15 earnings).

16 From Bradley Adams (P - Proprietary Institutions) to

17 Everyone:

18 I agree with Amanda and will say so publicly

19 From Carolyn Fast (P) Consumer/Civil Rights to

20 Everyone:

21 +1 Amanda

22 From Amanda Martinez (P) Civil Rights to Everyone:

23 Thank you Brad, appreciate it!
Committee Meetings - 03/15/22 91

1 From Johnson Tyler (P) Legal Aid to Everyone:

2 +1 barmak and Amanda and Ernest

3 From Ernest Ezeugo (P) Students and Student Loan 

4 Borrowers to Everyone:

5 +1 Jamie

6 From Jamienne Studley to Everyone:

7 + Barmak and Brad re potential for repayment 

8 alternative

9 From Beverly Hogan Primary/MSI to Everyone:

10 =1 to Barmak. There are multiple issues here. Some 

11 of these programs appear to intentionally target low income 

12 communities of color and compound the inequities in earnings 

13 and other societal inequities. They do not create real and 

14 sustainable opportunities. Far too many students are debt 

15 ridden, with low earning capacity, which is just as crippling 

16 as the earnings inequities. +1 to Amanda, Ernest and Jamienne.

17 From Anne Kress (P) Comm College to Everyone:

18 +1 on that “safe harbor”

19 From Anne Kress (P) Comm College to Everyone:

20 In part bc the earnings threshold calculations seem 

21 to be a work in process

22 From Ernest Ezeugo (P) Students and Student Loan 

23 Borrowers to Everyone:
Committee Meetings - 03/15/22 92

1 +1 Johnson

2 From Bradley Adams (P - Proprietary Institutions) to

3 Everyone:

4 I am good with principal being the driver in the 

5 rate

6 From Bradley Adams (P - Proprietary Institutions) to

7 Everyone:

8 +1 to transition period

9 From Debbie Cochrane (P), State Agencies to

10 Everyone:

11 Apologies, I do not recall discussion of the 

12 transition period -- when did that occur? That is different 

13 from the zone.

14 From Anne Kress (P) Comm College to Everyone:

15 +1 Debbie I also do not recall this.

16 From Barmak Nassirian (A) Servicemembers & Vets to

17 Everyone:

18 I would suggest a safe-harbor provision that would 

19 exempt programs from the application of the earnings metric if 

20 at least 80% of their borrowers are amortizing their debt in 

21 accordance with the applicable repayment terms in 

22 668.404(b)(2)

23 From Yael Shavit to Everyone:

24 Adam is swapping in for State AGs
Committee Meetings - 03/15/22 93

1 From Beverly Hogan Primary/MSI to Everyone:

2 There should be a clear procedural guide and a 

3 process to be able to validate data accuracy. +1 to Emmanual.

4 From Bradley Adams (P - Proprietary Institutions) to

5 Everyone:

6 +1 Beverly

7 From Beverly Hogan Primary/MSI to Everyone:

8 I am on - listening. My video s off for right now

9 From Yael Shavit to Everyone:

10 There are comments left on the previous sections

11 From Jessica Ranucci (A)- Legal Aid to Everyone:

12 I’m coming to the table to make a comment for legal 

13 aids

14 From Johnson Tyler (P) Legal Aid to Everyone:

15 Jessica is going to step in for Legal Aid

16 From Carolyn Fast (P) Consumer/Civil Rights to

17 Everyone:

18 +1 to Adam.

19 From Jessica Ranucci (A)- Legal Aid to Everyone:

20 Johnson is coming back to the table for legal aids

21 From Jamienne Studley to Everyone:
Committee Meetings - 03/15/22 94

1 I heard Jessica’s comment about schools telling 

2 their accreditor about year 1 GE failures. I am consulting 

3 with my alternate about programmatic accreditors. My agency 

4 would find it relevant to know; I would want to understand 

5 other agencies' reactions to that and can advise ED.

6 From Jessica Ranucci (A)- Legal Aid to Everyone:

7 Thanks Jamie

8 From Adam Welle, State AGs (P) to Everyone:

9 My concern is about unreasonable delay in bringing 

10 the termination action. While I believe that a bad faith delay 

11 may likely be unlawful, I think it would be helpful to have a 

12 provision clarifying that a termination action be commenced 

13 promptly after a program is determined to be ineligible.

14 From Adam Welle, State AGs (P) to Everyone:

15 +! to Carolyn's concern

16 From Bradley Adams (P - Proprietary Institutions) to

17 Everyone:

18 I want to go on the record that we support the small 

19 program rate proposal as written

20 From Anne Kress (P) Comm College to Everyone:

21 +1 Barmak

22 From Laura Rasar King (A) Accrediting Agencies to

23 Everyone:

24 +1 Anne
Committee Meetings - 03/15/22 95

1 From Marvin Smith (P) 4 Year Publics to Everyone:

2 +1 Jamie

3 From David Socolow (A) State Agencies to Everyone:

4 +1 to Jamie's point about 668.43(d)(1)(I) applying 

5 to all programs, not only GE programs -- and that not every 

6 program has a 1-to-1 correspondence with a "primary 

7 occupation" that the program "prepares students to enter" 

8 (e.g., institutions don't hold out a history bachelor's degree 

9 as preparing students for "historian" as a primary 

10 occupation).

11 From Bradley Adams (P - Proprietary Institutions) to

12 Everyone:

13 +1 to Emmanual on the appeals comment

14 From Anne Kress (P) Comm College to Everyone:

15 +1 Debbie

16 From Jamienne Studley to Everyone:

17 it would help if ED could explain the availability 

18 or potential burden of the edus spending requirement in Cert

19 From Bradley Adams (P - Proprietary Institutions) to

20 Everyone:

21 +1 Debbie. There are several items where there were 

22 multiple people on the committee that proposed a change to 

23 language including transition rates. Could we summarize those 

24 items and get the departments thoughts before a vote