Committee Meetings - 03/15/22 1 

DEPARTMENT OF EDUCATION

OFFICE OF POSTSECONDARY EDUCATION

INSTITUTIONAL AND PROGRAMMATIC

ELIGIBILITY COMMITTEE

SESSION 3, DAY 2, MORNING

March 15, 2022

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

was held virtually, from 10:00 a.m. to 12:00 p.m., before Jamie 

Young, Shorthand Reporter in the state of New Jersey.
Committee Meetings - 03/15/22 2 

PROCEEDINGS 

MR. ROBERTS: Alright. Good morning, everyone. 

Welcome to day number two of week three of the 2022 negotiated 

rulemaking with the Department of Education. I want to jump 

right into the substance of the day. We're going to start with 

a data presentation from the Department on Gainful Employment, 

followed by discussion on that issue paper moving towards a 

consensus check on Gainful Employment. But before that, I want 

to take a brief roll call of our negotiators. So, if folks 

wouldn't mind coming on camera. Representing accrediting 

agencies, we have Jamie Studley.

MS. STUDLEY: Good morning.

MR. ROBERTS: Good morning. Joined by her alternate 

Dr. Laura Rasar King.

DR. KING: Good morning.

MR. ROBERTS: Good morning. Representing civil rights 

organizations and consumer advocacy organizations, we have 

Carolyn fast. We're still waiting for Carolyn, but we were 

joined by her alternate, Mr. Jaylon Herbin.

MR. HERBIN: Good morning.

MR. ROBERTS: Good morning, Jaylon. Representing.

MS. SHAVIT: Sorry.

MR. ROBERTS: Oh, was that Carolyn?

MS. SHAVIT: No, Carolyn was in the waiting room. No 

this is Yael. She is stuck there for a little bit.
Committee Meetings - 03/15/22 3 

MR. ROBERTS: It might be on my end, Yael but I can't 

really hear you right now. I think your audio might be it's a 

little scramble, but, but.

MS. RANUCCI: Yael was just saying that Carolyn was 

stuck in the waiting room.

MS. JEFFRIES: We're not, okay, we're not showing 

Carolyn in the waiting room. We are showing a person that is 

logged in at sixth grade, Daniel tiger. We do not know who 

that is and we cannot let them in until they identify 

themselves.

MS. RANUCCI: I'll let Carolyn know to change her 

name.

MS. JEFFRIES: Okay, thanks.

MR. ROBERTS: We don't want to let any sixth graders 

in and expose them to the horrors of reg neg that early in 

their young lives. But moving on, we'll come back to Carolyn 

when she's able to log in. Representing financial aid 

administrators at postsecondary institutions, we are joined by 

Sam Veeder.

MS. VEEDER: Good morning.

MR. ROBERTS: Morning, Sam. And her alternate, Mr. 

David Peterson.

MR. PETERSON: Good morning.

MR. ROBERTS: Representing four-year public 

institutions of higher education, we have Marvin Smith.
Committee Meetings - 03/15/22 4 

MR. SMITH: Morning.

MR. ROBERTS: And we're joined by his alternate Debra 

Stanley.

MS. STANLEY: Morning.

MR. ROBERTS: Representing legal. We'll get to you 

soon, Barmak. Don't worry. Representing legal aid 

organizations that represent students and/or borrowers, we are 

joined by Johnson Tyler.

MR. TYLER: Good morning.

MR. ROBERTS: Morning, Johnson. And his alternate Ms. 

Jessica Ranucci.

MS. RANUCCI: Morning.

MR. ROBERTS: Representing civil rights 

organizations, we are joined by Amanda Martinez.

MS. AMANDA MARTINEZ: Good morning.

MR. ROBERTS: Morning, Amanda. Representing minority 

serving institutions, we are joined by Dr. Beverly Hogan.

DR. HOGAN: Good morning, everyone.

MR. ROBERTS: And we are joined by her alternate, Ms. 

Ashley Schofield. It looks like Ashley has not joined us yet 

but we'll circle back. Representing private, nonprofit 

institutions of higher education, we are joined by Kelli 

Perry.

MS. PERRY: Morning, everyone.
Committee Meetings - 03/15/22 5 

MR. ROBERTS: Morning. And her alternate Emmanual 

Guillory.

MR. GUILLORY: Good morning.

MR. ROBERTS: Morning. Representing proprietary 

institutions of higher education, we are joined by Bradley 

Adams.

MR. ADAMS: Morning.

MR. ROBERTS: Morning Brad. And we're joined by his 

alternate, Mr. Michael Lanouette.

DR. LANOUETTE: Good morning.

MR. ROBERTS: Morning. Representing state attorneys 

general, we are joined by Adam Welle.

MR. WELLE: Morning.

MR. ROBERTS: Morning, Adam. And we're joined by his 

alternate Yael Savant.

MS. SHAVIT: Good morning.

MR. ROBERTS: Morning. Representing state higher 

education, executive officers, state authorizing agencies 

and/or state regulators of higher education and/or loan 

servicers, we are joined by Debbie Cochrane.

MS. COCHRANE: Good morning.

MR. ROBERTS: And her alternate, David Socolow.

MR. SOCOLOW: Good morning.
Committee Meetings - 03/15/22 6 

MR. ROBERTS: Morning, David. Representing students 

and student loan borrowers, we are joined by Mr. Ernest 

Ezeugo.

MR. EZEUGO: Good morning.

MR. ROBERTS: Morning, Ernest. And we're joined by 

his alternate, Mr. Carney King. Carney's not able to join us 

yet, but we'll circle back to him. Representing two-year 

public institutions of higher education, we are joined by Dr. 

Anne Kress.

DR. KRESS: Good morning.

MR. ROBERTS: Morning, Anne. Hope you are driving 

safely.

DR. KRESS: I am not driving. I want to make that 

clear. I'm riding.

MR. ROBERTS: And we're joined by her alternate, Mr. 

Will Durden.

MR. DURDEN: Good morning.

MR. ROBERTS: Morning. Representing U.S. service, 

U.S. military service members, veterans and/or groups 

representing them, we are joined by Mr. Travis Horr.

MR. HORR: Morning.

MR. ROBERTS: And his alternate, Mr. Barmak Nazarian.

MR. NASSIRIAN: Good morning.
Committee Meetings - 03/15/22 7 

MR. ROBERTS: We are also joined by two advisors who 

provide support to the negotiating committee. First is a 

compliance auditor with experience auditing institutions that 

participate in the Title IV HCA programs, we are joined by Mr. 

David McClintock.

MR. MCCLINTOCK: Morning.

MR. ROBERTS: Morning. And a labor economist with 

experience in policy research, accountability and/or analysis 

of higher education data, Professor Adam Looney. Adam has not 

joined, has not joined us yet. Representing the Department in 

the Office of General Counsel, we are joined by Mr. Steve 

Finley.

MR. FINLEY: Hello.

MR. ROBERTS: And last, we are joined by our Federal 

negotiator, Mr. Gregory Martin.

MR. MARTIN: Morning.

MR. ROBERTS: Alright. Did I miss anyone? Alright, 

thank you. I'm going to turn it over to the Department at this 

time. I just have two quick items to touch on. One, just for 

the members of the public who are watching, I want to just 

reiterate that the Department is not accepting written 

comments at this time. The appropriate time to submit those 

comments is the NPRN period of at least 30 days. Currently, 

the Department is unable to utilize those comments and asks 

that members of the public refrain from submitting them at 

this time. So, Brian, as I turn the floor over to you, I just 

want to run through our morning. We're going to turn it over 
Committee Meetings - 03/15/22 8 

to Brian. He'll run through the data that you've just received 

and take a few questions from them. I'm going to ask the 

negotiators to keep their comments and questions to that same 

three-minute timeline that we've held you to the first two 

weeks. And that your comments express new questions or 

comments for the Department and the committee's consideration. 

So, with that, Brian and Renee, the floor is yours.

MR. FU: Good morning. Thanks for the introduction, 

Brady. The purpose of my presentation today is to describe the 

informational rate information that was shared earlier with 

the negotiators. Please note that a corrected version of the 

data containing this information. And an updated summary memo 

was distributed just before this meeting and I believe is now 

publicly available on the website. The prior version 

misclassified programs with $0 or lower in the discretionary 

income rate denominator as passing instead of failing. The 

corrected version shows 619 failing programs, whereas the 

prior version that was distributed on Sunday showed 435 

failing programs. The largest difference between the versions 

was for private for-profit certificate programs and I'll show 

you a table later that kind of walks through those and the 

differences. I wanted to emphasize a few items in the 

memorandum as stated in the or I guess the overview document. 

Thanks for sharing that, Renee. Yeah. As described here, due 

to limitations and what is available from relevant data 

sources that we have available to us now, there are 

differences between the data construction process of any 

informational rates and the proposed regulations. We know that 

different stakeholders will focus on different the performance 

of different subsets of programs or institutions. So, we've 
Committee Meetings - 03/15/22 9 

provided just the broad summary tables here in the memorandum 

and the overview, and we've also released an accompanying data 

file so that users could take a closer look at the specific 

credentials or sets of institutions that are of particular 

interest to them. That was also updated this morning. The 

informational rates data file includes both GE programs and 

non-GE programs to provide context on the number of programs 

and awards granted by GE programs across different sectors and 

institutions. The data file includes earnings data and loan 

data for GE where there were at least 30 individuals in the 

earnings cohort. The data file includes identifiers for HBCU 

institutions as well as tribal colleges and universities. We 

didn't include the other MSI designations like HSIs, which are 

designations that can vary across years based on enrollment. 

But that information can be added by data users who had access 

to the data file using data available in College Scorecard or 

the OPE website for MSIs. To talk a little bit about the 

earnings data. These data are based on College Scorecard data. 

Yesterday, College Scorecard released a new program level 

earnings data. As mentioned previously, the information rate 

data file includes only earnings data for the GE programs with 

30 or more in the cohort for the data file. Beyond that, there 

are a few differences between the data between what's in the 

data file and College Scorecard. Essentially, the biggest 

difference is that the GE information rate data are inflation 

adjusted to 2019 dollars and the College Scorecard data are 

inflation adjusted to 2020 dollars. For those familiar with 

the methodology used to produce program level median earnings 

under the 2014 regulations, it might be worth highlighting 

three key differences between data produced by the College 
Committee Meetings - 03/15/22 10

Scorecard and data that was produced by the Social Security 

Administration in the 2014 regulation. While the underlying 

data source of earnings is identical, there are several 

differences in how these data are processed. First, the data 

are produced at the four-digit CIP code rather than the sixdigit CIP code. So that's different than 2014. Second, as 

described in this overview and in a figure that was 

distributed earlier, it was kind of a picture that was 

distributed on Sunday. The Scorecard measures earnings with 

longer lag between when students graduate and when their 

earnings are measured. So, on average, this will likely lead 

to median program earnings estimates that can be substantially 

higher than what was calculated in the 2014 calculations. 

Finally, if you look at the College Scorecard documentation, 

the median earnings estimates are perturbed by IRS to protect 

privacy of individuals. In other words, a small amount is 

either added or subtracted from the median estimated earnings 

using the raw data before it is published and even disclosed 

to us. As a brief summary of how the perturb calculations 

differ from the actual medians. About 80 percent of the 

medians in College Scorecard are within 3 percent of the 

published medians, and over half are within 1 percent. The 

statistics describing perturbation represent kind of an upper 

bound on differences when we when we're thinking about GE 

because in Scorecard, they're based on sort of an N15 

calculations rather than N30 calculations. There's more 

information about the perturbation and the privacy protection 

that IRS describes in the College Scorecard documentation. I'm 

happy to share a link for those that are interested in that. 

Let's talk a little bit about debt now. In terms of debt that 
Committee Meetings - 03/15/22 11

the Department has proposed, including institution and private 

loan debt in calculating median debt levels and capping 

calculations by tuition and fees. However, annual loan 

payments and debt include only Federal loans without capping 

by tuition and fees. That's the only data we have available to 

us now. Further, other factors will impact make things 

difference. For example, we rounded the aggregate cumulative 

debt to the nearest hundred, which will also just make things 

kind of slightly different. I'm going to turn your, direct 

your attention to kind of what's on the screen. And just note 

that the first table of the memorandum shows the number of GE 

programs in each category, as well as the proportion of 

programs and awards conferred in each category. Further, table 

one shows the number of GE programs with information or rate 

data. While the majority of awards conferred are represented 

in GE programs with informational rate data in private forprofit institutions. A smaller percentage of awards conferred 

are represented in GE programs in the in the other control 

categories. So. And again, this is the same table that was 

distributed on Sunday. Let's go to the next table. It's going 

to be a little bit of a split screen because there's a page 

break. But I can say that the second table shows the number of 

GE programs and their passing and failing frequencies for 

categories of credential levels by control categories for the 

debt and earnings metric. The table shows that, for example, 

private for-profit institutions have higher proportions of 

their awards conferred and failing categories. As I mentioned 

before, this table has been updated this morning, the 

corrected version. The biggest difference in this table is 

that first row, the failing DTE number jumped from I think it 
Committee Meetings - 03/15/22 12

was 59 or 60 up to 210. The other numbers, if you kind of 

scroll below, none of those numbers I think changed by more 

than ten. But the difference between the corrected version and 

this version is the more substantial one was that first row. 

Let's go to the last table and the third table of the 

memorandum or I guess it's an overview document shows that the 

number of GE programs, the number of GE programs and their 

passing and failing frequencies for the earnings threshold 

metric. Excuse me. If you kind of scroll down, again, we have 

unfortunate pagination here, but you'll see the breakdowns 

again by credential level with the certificate programs broken 

out by control categories. So that's a gist of what was 

provided and happy to take any questions about that at this 

point.

MR. ROBERTS: Okay. Any questions for the Department? 

I guess just a few brief announcements in terms of who's at 

the table. We have David in for financial aid administrators. 

Emmanual in for private nonprofits. Yael in for state AGs. 

Barmak in for veterans and service groups. And then Carney, we 

are joined by Mr. Carney King. So good morning and welcome to 

everyone. Emmanual, please take us away.

MR. GUILLORY: Sorry, experiencing some issues. So, 

with the debt data that you included here, that's the debt 

data that's from the College Scorecard, correct?

MR. FU: No. That is different from the College 

Scorecard. The College Scorecard publishes debt for borrowers 

only. And so for the data and these data file, they include 

non-borrowers. 
Committee Meetings - 03/15/22 13

MR. GUILLORY: Do they also include Parent PLUS 

Loans?

MR. FU: They do.

MR. GUILLORY: In the file that you gave us?

MR. FU: In the file that they gave us. In the file 

that was circulated, yes.

MR. GUILLORY: Okay. Thank you.

MR. ROBERTS: Okay, thank you. Brad, I see you're 

here next.

MR. ADAMS: First, I'd like to thank Brian for the 

presentation and for the Department to producing some data. 

Unfortunately, the timing of the data we've been requesting 

since January was given it to us Sunday night at 5:00 pm and 

then revised by 9:45. And frankly, I think it's in these 

comments are not directed to the folks that compiled the data, 

but your own memo on page two lists six different bullets of 

why the data is not accurate. And to present this data to this 

committee and then use that data to make a decision on our 

Gainful Employment issue paper is a problem. It's not accurate 

compared to the definition of the Gainful Employment statute 

we're reviewing. And the spreadsheet has 165,000 lines within 

it and just the timing of it, and we haven't had a chance to 

really go through it. But I do want to point out two things of 

note. I think it's important for this committee. It is on one, 

on page three, it talks about the overall program size of 

Gainful Employment. It does validate that 75 percent of the

programs are not subject to GE. And so we'll discuss that 
Committee Meetings - 03/15/22 14

later on the issue paper. But that's that is helpful. I do 

want to ask a question on the second piece of information I 

find interesting, is that private nonprofits and publics they 

owe Gainful Employment as called out and several tables in 

this report. And if the failure rate was applied on a pro rata 

basis to degree programs at the associate doctoral level, the 

vast majority of failing programs would be outside of the 

proprietary industry. You know, unfortunately, the Department 

has this data and could have applied the same metrics to all 

the other institutions at the same credential levels, and they 

chose not to do so, even though we've requested that 

information. But the Texas Public Policy Research issued a 

report in February 2022, that states that 89 percent of all 

failing programs would be at publics and nonprofits. And 

that's unfortunate. We're not doing anything to protect those 

students from failing Gainful Employment programs. The last 

thing I want to mention is just on the earnings calculation. I 

want to know, and frankly I've been unable to determine, what 

is the dollar amount being used in that earnings threshold in 

the very last table? Can the Department disclose what that 

number is and assuming it's 2019 calendar year, but what is 

the overall number that we're using?

MR. FU: The number that we are, the threshold 

number?

MR. ADAMS: Yeah, the median high school earner from 

national earner 25 to 34, I believe is the methodology. What 

is the number?

MR. FU: It's adjusted for state. So, it's a 

different number for each one. So, if you look at the Excel 
Committee Meetings - 03/15/22 15

spreadsheet, I think the last column or it's one of the last 

two columns, you'll see the specific number that's being 

compared against.

MR. ADAMS: And given that, I'm not going to be able 

to pull that off on the fly, can you just state the national 

median number without going into all the different state 

numbers?

MR. FU: I don't have that at the top of my head. I 

will, I can, I can try to find that quickly, though.

MR. ADAMS: That's going to be an important number 

for us as we go through this negotiation. And when you pull 

it, will you let me know if it includes $0 earners that are 

high school graduates or if it excludes $0 earners?

MR. FU: So, there's two versions in the data set. 

What we provided in the summary table is only the positive 

earners.

MR. ADAMS: So, we're excluding $0 earners from this 

file we're reviewing. Which is different than what we're doing 

in Gainful Employment for graduates of programs.

MR. FU: So, for graduates of programs, right, we 

include zeros in the proposed regulation and then suffer the 

comparison.

MR. ADAMS: So, the Department is admitting that 

they're not consistent on how they apply annual earnings for 

Gainful Employment. Interesting. Yeah. If you could let us 
Committee Meetings - 03/15/22 16

know that number and I'll hold off the additional comments 

until we get that number, because that is very important.

MR. ROBERTS: Johnson, I see your hand next.

MR. TYLER: Thank you. Thanks, Brian, for the 

presentation here. I have a very specific question that I just 

can't get my head around. So, if we look at page four of what 

was released today, the first table there at the bottom, it 

says programs passing DTE without published DTE metrics. I 

don't understand what that means.

MR. FU: That means they would not fail essentially, 

because we would not have data for them.

MR. TYLER: In other words, there's no, in other 

words, there's just no data on these on these programs? No, 

no, earnings data.

MR. FU: No debt and earnings data together.

MR. TYLER: Okay. And the other question is, are 

there earnings that are being captured, are they from, what 

year are they from?

MR. FU: They're the combined 2018, 2019 calendar 

year tax earnings.

MR. TYLER: Okay. Thank you.

MR. ROBERTS: Thank you. Brad, you're up next.

MR. ADAMS: Thank you. While Brian's looking for that 

number of national media number, I'd like to remind the 

Department that the fact that we've been asking for this data 
Committee Meetings - 03/15/22 17

and it was obviously inaccurate what we've received Sunday and 

all reviewed and now got a new file on Tuesday morning that 

this entire rulemaking has just been around Gainful employment 

has been an absolute disaster. And I think the administration 

is just forcing GE through as quickly as possible and not 

following through its standard negotiated rulemaking kind of 

procedures here. So, I'd like to ask the Department one last 

time to consider either pulling GE from this rulemaking to 

give it the consideration it needs as a standalone rulemaking 

like it's done in the past. Or consider adding at least one 

additional session in April that we devote to GE. There's a 

precedent for adding a fourth session and the Department can 

agree to this today. So, Greg, I'd like you to take that 

request back to your leadership, if you would, please.

MR. MARTIN: I will.

MR. ROBERTS: Thank you. Emmanual.

MR. GUILLORY: Okay. I'm just trying to make sure I 

understand the data accurately because we did just get it this 

morning. So, I want to make sure comparing contrast on what we 

had before and what we have now. So, with the total programs 

for private nonprofit institutions on page three, which this 

document has 53,000 total programs. Are you saying and I see 

above. Okay, basically the question is there are GE published 

programs, so there's qualifying GE programs and GE published 

programs. So, the total GE programs, that's the 4,908 number. 

Those are published GE programs, correct? Just confirming.

MR. FU: So those programs are any sort of the 

legislative definition of GE that had at least one reporter, 
Committee Meetings - 03/15/22 18

one excuse me, one award confirmed reported in their IPEDS 

data collection. So, it's anybody with in the GE program that 

had at least one completer.

MR. GUILLORY: At least one completer. So. Okay. So, 

if it's at least one completer then that means that, so 

basically, I'd be a cohort of one?

MR. FU: At least. At least.

MR. GUILLORY: So, then this number would be all of 

the qualifying GE programs?

MR. FU: What do you mean by qualifying?

MR. GUILLORY: So, what I mean by that is there are 

programs on campuses that are GE programs, but they are not 

published because they're under 30 students in the cohort. So,

the Department previously only released data on the published 

GE programs. So that's the data we've been operating on since 

the 2014 rule. Which we've been using and talking about and 

reviewing. This data, this informational rate data is 

something new that the Department has done based on current 

data. And you're showing us giving us an example of how our 

programs would fare under this new rule. So, with this new 

data, I'm trying to make sure I understand and make sure it's 

clear for my fellow negotiators, too, as well, that the 

numbers we're looking at are either all of the GE programs on 

the campuses that qualify regardless of cohort size, because 

we're going to look at small program rates later on, or talk 

about those later on. Right. Or just only the published GE 

programs with 30 or more in the cohort?
Committee Meetings - 03/15/22 19

MR. FU: So that number the like the 4,908 number 

represents all of the GE programs, regardless of cell size. 

It's between it's between one and a million. It's not zero. 

So, we do cut it off at zero, but it's at least one completer 

in the cohort. So, it exists as a as a GE program with that 

definition. Does that help you?

MR. GUILLORY: Yes, thank you. And then the total 

program column, that's just literally all of the programs on 

our campuses? Not their GE programs or not just all the 

programs.

MR. FU: Correct.

MR. GUILLORY: Okay. And that that, then I mean, this 

number if you combine the publics and the private nonprofits, 

that's more than 18,000 qualifying GE programs, which we were 

looking at previous data. So that aligns. Thank you. I 

appreciate that.

MR. ROBERTS: Thank you. Anne, I see your hand next.

DR. KRESS: Sure. I just want to follow up on a 

question that Brad asked to make sure I completely understand 

this. And I also want to indicate my frustration that this 

session began at 10:00, and we got this data, I think, at 9:56 

this morning. So, this is a lot to try to process. But my 

question is, when we're looking at the earnings threshold for 

high school graduates with no GE completion. So, what I heard 

was that if those high school graduates have no income, that 

they're excluded from the tabulation of the median. But all GE 

completers are in the tabulation, even if they have zero 

income. Is that correct?
Committee Meetings - 03/15/22 20

MR. FU: So that sounds right to me that when we do 

the median earnings calculation for a specific program, zeros 

are included. Yes. And then for I think this is exactly what 

you said, the comparison point, which is based on census 

sample data, those we have two columns in the data file. What 

you see in the overview, it's limited to the high school, the 

typical high school earners that were working at positive 

earnings only. So, there is a difference.

DR. KRESS: So, I guess I want to indicate an 

objection in the way that we're looking at this data because 

there are lots of reasons why folks may not be employed, even 

if they went through and got a certificate or a degree that 

qualifies for Gainful Employment. Could be all sorts of 

personal choices that are in there. And to my mind, if we're 

going to include the zeros for one group, we really got to 

include the zeros for the other group. Otherwise, you're not 

really doing, I think, an accurate comparison of sort of a 

vision of the labor market. And I think someone's [inaudible] 

is not muted in the background.

MR. ROBERTS: If folks don't mind going on mute just 

eliminate some of the background noise. But I see Beverly, 

your hand is up next.

DR. HOGAN: Yes, I'd like to make a brief comment 

that I have to agree that this is a lot of information to 

absorb and analyzed in a short period of time to help us make 

clear and inform our decisions. But let me ask a couple of 

questions here following up on what Emmanual said, are HBCUs 

data included in the private nonprofit institutions?
Committee Meetings - 03/15/22 21

MR. FU: So, I mean, we, yes.

DR. HOGAN: To the extent that there are.

MR. FU: To the extent that the HBCU flag is in the 

data file regardless of control category.

DR. HOGAN: And the tribal control colleges and 

universities just have not published any information on their 

rates, on the rates data, and you don't have anything on them? 

How is that handled?

MR. FU: Correct. So, for example, because they have 

small programs, for example, we wouldn't have information on 

small programs.

DR. HOGAN: And in this analysis and I'm having 

difficulty going between the document I printed and in the 

document that you all sent this morning because of some visual 

challenges that I have, I'm not really able to read the new 

document on my screen. You have you had a footnote in this 

analysis, HBCU status is defined based on an institution sixdigit OPEID. Can you tell me can you explain that a little bit 

more to make me so I can understand it?

MR. FU: Yes. So, the HBCU designation, there are 

some HBCUs, I think there's one in particular where I think 

the law school branch is not considered HBCU. But the if you 

were to kind of consider the whole main campus that includes 

kind of this separate branch campus which is separately not 

considered HBCU as long as it's kind of one entity within 

multiple branch campuses were considered an HBCU, we would 

mark that as an HBCU.
Committee Meetings - 03/15/22 22

DR. HOGAN: Okay. Thank you.

MR. ROBERTS: Thank you. Brad, your hand's up next.

MR. ADAMS: Thank you. Brian, I'm curious, do you 

have any of this data broken out by gender, age or race or 

rural other than state, I guess location other than state, 

does the Department have access to that information?

MR. FU: So, the College Scorecard produced earnings 

by gender, and that was released yesterday. We don't have 

race. Or what was the other category you mentioned?

MR. ADAMS: Or location other than state.

MR. FU: No. And I do have an answer for you on your 

prior question. The national figure was, hang on a second, 

25,400.

MR. ADAMS: Did you get the number of what it would 

be without the, I mean, including the zero earners.

MR. FU: I don't have that one yet. Sorry.

MR. ADAMS: That's okay. I'm curious if they've at

least got it by gender, if we could get the male female 

breakdown. And really, what I'm looking for is what percentage 

of the high school median earnings are white males. I'd like 

to get that information from the Department. If you can get 

that, or at least get it by gender. If not.

MR. FU: You're saying with the census data? See if 

the sample size is. We can look into getting that. I'm not 
Committee Meetings - 03/15/22 23

sure if we'll be able to at what timetable we'll be able to 

get that, but we'll.

MR. ADAMS: As you probably are aware, that most of 

the programs that are considered failing within the private 

for-profit certificates are cosmetology programs. Those tend 

to be a higher percentage of female graduates within those 

numbers, in some instances significantly different. And, you 

know, as you know, there's all kinds of earnings issues in 

that industry. And so, to show 51 percent of those programs 

are failing and earnings threshold, we need to take into 

consideration some of the other demographic information that 

may be available to us in that area. But I would like to ask 

the Department one additional question. And it's on, it was on 

a file that was sent on Sunday. I liked this file. It was the 

timeline file. But there was a comment in this file and I 

didn't know what it meant. I don't know if you could share 

that for the public because the one page or earnings metric on 

a timeline, if that's okay. But either way, there was a 

comment that says calendar year 18 earnings are inflated to 

2019 dollars and then median of the earnings from both cohort 

years combined is computed. I was not sure if you could 

explain what that means.

MR. FU: So. To the extent that the median earnings 

is across, hang out a second let me think about this. So, the 

2018 reported dollars are adjusted to 2019 dollars. And then 

the median is taken across the two cohorts. Does that make 

sense?

MR. ADAMS: So, is it a two-year median average? I'm 

not following. I'm sorry, Brian.
Committee Meetings - 03/15/22 24

MR. FU: I might, we might have to check how this 

works, but I believe how it works is that you basically, let's 

say you and I had different I had like $10,000 earnings and 

you had $20,000 earnings. We would adjust, I had I had mine a 

year prior to yours, we would adjust mine to, let's say, 

$15,000 and then we'd reg order like you, me, and everybody 

else in the cohort. And then we would see who's in the middle 

to draw the median. Does that make sense?

MR. ADAMS: So, you would inflate the 2018 annual 

earnings up and then take the median of the entire population, 

said another way.

MR. FU: Yes. So, we are comparing apples to apples, 

essentially.

MR. ADAMS: Are we using some sort of government 

produced CPI for the for the increase from 18 to 19?

MR. FU: Yes. The BLS data.

MR. ADAMS: That is a helpful answer. Thank you.

MR. ROBERTS: Okay. Thank you. Johnson, I see your 

hand next.

MR. TYLER: Thanks. So, I'm going to follow up with 

Emmanual's questions on today's release of information and go 

back to the table and page three. So, the private nonprofit 

that has this percentage of total completions in GE program, 

it's 5.7. So, does that mean out of the 4,900 GE programs, 

only 5.7 are having enough completers to be counted for the GE 

analysis?
Committee Meetings - 03/15/22 25

MR. FU: So, the 5.7 the is more about individuals or 

what we call kind of awards completed sort of completion 

events. So, it's weighted. It's not the number of programs, 

it's actually the number of people that are completing.

MR. TYLER: Okay. So. In essence, though, when you 

when you look at the 4,908 GE programs, only 222 or 240 or 

scorable for purposes of GE? Is that what the next column is 

saying?

MR. FU: Correct.

MR. TYLER: And that's because there's not enough 

completers or that's because there's not enough data to do the 

analysis once you've identified the people?

MR. FU: So, I think that's the same thing. If 

there's not enough completers, that means there's not enough 

data.

MR. TYLER: Okay. So, in other words the end number 

is too small. These are small programs. Okay. And so, this 

last column, I'm just getting my, I'm having a hard time 

understanding what it means. Percentage of GE credentials 

awarded with published DTE earnings. So that means 60 or 59.5 

percent of GEDs [ph] GE credentials are being awarded private 

nonprofits that don't have a large enough number of completers 

or data to be scored. Is that right?

MR. FU: Again, this is this is the proportion of 

people completing. And so, what like this first column is 

saying is that, you know, this this 2799 number, that's all, 

that's the number of programs we have. So how many, this this 
Committee Meetings - 03/15/22 26

87.9 percent is the number of people that are completing 

that's represented in that 2799. Because some programs are 

bigger and smaller. So, you could have like almost all of your 

students represented in a smaller number of programs. So 

that's what that means.

MR. TYLER: Okay. Thank you. That's helpful.

MR. ROBERTS: Thank you. Emmanual, please.

MR. GUILLORY: Well, I think I think that by looking 

at this further, I may have answered my own questions. 

Obviously, understanding the data is very important and just 

want to make sure I think we all get a good grasp on what 

we're looking at here once again, because we got it not too 

long ago, but it's not much different than what was in before. 

And I apologize for asking about the Parent PLUS thing because 

I do see you still kept that in here, literally says it in the 

first line. But I think just having time to read through it 

was challenging. As it relates to, I know one of my colleagues 

asked for the HSI data, you weren't able to provide that. And 

in looking at the HBCU data, the tribal college and university 

data, just not really seeing that kind of spelled out. I know 

you say that only three programs for HBCU fail out of 332 GE 

programs at HBCUs. And then further down, you say there's a 

total of 332 GE programs out of the 3,654 programs offered by 

HBCUs. But it would be helpful to see a breakdown of and I 

know it's harder for the minority serving institutions because 

they do vary based on the metrics to meet it in Title III and 

V. But for those that are statutorily defined, like HBCUs and 

TCUs, it would be nice to see a breakdown of that. And I will 

say that in looking at this, going back to what my colleague 
Committee Meetings - 03/15/22 27

Johnson, when he was going through the private nonprofit 

numbers on page three, in this particular table here, 222 of 

our programs out of the 4,908 total GE programs are literally 

just published GE programs. So those are the ones that have 30 

or more in our cohort. Right?

MR. FU: Yes.

MR. GUILLORY: Okay. So, when we do the small program 

rates, is it true that we're now going to capture more than 

222 programs and their rates? Okay. Would potentially capture 

all 4,908 of those programs. I mean, as long as their fouryear cohort combined is 30 or more students, we would more 

than likely capture a large majority of that 4,000 number, 

right?

MR. FU: Yeah, we might, I'm not sure. I mean, 

there's ways to kind of estimate that by, for example, see how 

many there are in 15 and multiplying by two. So those are 

things that you could try to do with the IPEDS data.

MR. GUILLORY: Yeah, well, I would say just based on 

the definition of small program rates the Department is using 

and then how that calculation will actually take place, we 

will capture obviously way more than 222 programs. We'll 

probably capture a majority of the 4,900 here. But that would 

be the same too, though, for the public institutions as well. 

Right? Because according to your data, they have 968 programs 

that are published. They'd be published GE programs, but then 

they have 28,000 that are total GE program. So, the small 

program rates would capture a large number of that 28,000.

MR. FU: Yes, it would capture more.
Committee Meetings - 03/15/22 28

MR. GUILLORY: Okay. Thank you.

MR. ROBERTS: Okay. Adam, our advisor, I see your 

hand.

DR. LOONEY: So I guess watching this dialog, my 

first observation is that that I thought the data looked quite 

similar to what you'd get from the 2015 data and from what I 

showed a couple of weeks ago, in the sense that if you look at 

that table on page three of the document that has the first 

row with the total number of programs, the second row says 

among all the programs at those universities, which ones are 

GE programs? The third the third column there is the fraction 

of students in those programs who are at those universities 

who are in GE programs. The fourth column is the number of 

programs that actually have a published metric, has 30 or more 

students. And then to your, to that comment about 

informational rates or the programs that have less than 30 

students, obviously that number 222 for private nonprofits, 

that will go up in a sense that they'll be more informational 

rates. But correct me if I'm wrong, I thought that there was 

no sanction associated with those and that they'd be purely 

informational so that they're not a high stakes, so to speak, 

element. And then just for completeness, the fifth column is 

the is the fraction of total students in GE programs that have 

published rates that would be effectively subject to a penalty 

or sanction under this regime. And so, I guess my broad my 

broad observation is that it looks quite similar to the data 

that you've seen before. And if you're familiar with the 2015 

data, I don't think you should think that this is a big change 

in terms of the content in the broad the broad message.
Committee Meetings - 03/15/22 29

MR. ROBERTS: Okay. Thank you, Adam. Debbie, I see 

your hand.

MS. COCHRANE: Thank you. I had a couple of questions 

related also to the issue of the median earnings data and the 

inclusion or exclusion of the $0 earners. One very specific 

question is that looking in the file and comparing those two 

figures, it looks like the territories don't seem to have a 

difference where the states do. Is there some sort of data 

difference there?

MR. FU: You mean the comparison? How are the 

territories the territories used the national comparison 

rather than state adjusted one?

MS. COCHRANE: So, the kind of for American, I think 

the column AD is all earners, whereas AE is the positive 

earners.

MR. FU: Correct.

MS. COCHRANE: And so, for America, American Samoa, 

they're both 18, 7 and 35, whereas those figures are different 

from the states.

MR. FU: The states are adjusted and the territories 

are not. States are adjusted for sort of regional differences.

MS. COCHRANE: But it looks like, I guess there's 

some $0. It seems like there might be a difference in terms of 

whether there's a positive earnings filter placed on them.

MR. FU: Okay. So, the AD and AE are different 

because based on sort of census data, there's kind of a high 
Committee Meetings - 03/15/22 30

school, national high school earnings level sort of for sort 

of just the workers or for everybody. And so that's the 

difference you're seeing between the two.

MS. COCHRANE: Okay. Let me, so just in terms of the 

other my other questions, I just, is there anything you can 

say about the extent of the difference that a couple of folks 

have asked about in terms of the how many people in either 

cohort are $0 earners or just kind of what the Department is 

thinking was in terms of that comparison?

MR. FU: I'll defer to my colleagues on sort of the 

rationale for including or not including the zeros. The 

difference, we're still I think Brad asked for kind of both 

numbers and we only have one at this point and we'll work on 

the other to understand the difference at a national level. 

The difference between high school workers and high school, 

high schoolers.

MR. ROBERTS: Deb, anything else?

MS. COCHRANE: No, I'll leave it there.

MR. ROBERTS: Okay. Alright, Anne.

DR. KRESS: Sure. I just want to go back to a point 

that Adam Looney just made. And I want us to be really careful 

because it reflects on something that Emmanual was talking 

about that, yes, these are similar tables. But the reality is 

what they're telling us is that the results in those tables 

will be dramatically different if we go forward with these 

changes. And so that, I think, is what's causing a lot of the 

questions this morning, is that we're proposing and that's the 
Committee Meetings - 03/15/22 31

whole point of negotiated rulemaking, we're proposing at the 

Department level to make some significant changes. And setting 

aside the merit of those changes, that would change 

significantly what you see in those tables and how those 

programs are counted, how those graduates are counted. And I 

also want to go back to something about the small program 

size. GE programs by nature are often very small. They're not 

going to draw thousands of students. So how you treat the 

small number of students who have come to those programs, how 

you provide them that access to the financial aid that many of 

them count on to participate in these programs is going to be 

incredibly important. So just for anyone watching, I think 

that's a lot of what you're seeing in this discussion is that 

the tables may look similar, but what's going to be inside of 

them going forward is very, very different. And that will have 

real world impact on the lives of our students.

MR. ROBERTS: Thank you. Brad, your hand is up next.

MR. ADAMS: I just want to second Anne's point here 

that, you know, the final two charts in this presentation is 

completely, completely compiled with inaccurate data as 

currently described in the 2022 GE issue paper. So just want 

the public to realize that we are reviewing data that the 

Department describes to six different bullet points how it is 

inaccurate. But I do want to point out on table three, which I 

think is the probably the only thing that's using accurate 

data and that's the percentage of GE programs. And I just want 

to call out that's interesting, in only 3 percent of public 

institutions certificate programs have more than 30 completers 

in a four-year period. And of that only it's only 1 percent of 
Committee Meetings - 03/15/22 32

all programs at public institutions. So once again, 99 percent 

of programs at public institutions are not subject to Gainful 

Employment. Maybe that's why they have such low failing 

thresholds, because the other 99 percent are not even looked 

at. It's interesting to me that of everything in this 

information, this table or this table on page three shows the 

full picture of how many students aren't protected from this 

GE regulation. And it's just really unfortunate that the 

Department and the committee just looks right past the fact 

that so many students attend institutions that have programs 

that are not covered by GE. And we're basically saying to 

them, we don't care if you're gainfully employed or not, you 

can go pay as much as you want for that education. And that's 

unfortunate that this committee feels that way. Thank you.

MR. ROBERTS: Alright. Emmanual.

MR. GUILLORY: I just wanted to quickly add that in 

response to comments that Adam had made, one of the reasons 

why I was going through the table on page three, the way that 

I did is because we do have people watching that may not 

necessarily understand what all the numbers mean, per se. So, 

I just want to make sure it's clear that we all know what 

we're looking at and people we all understand that. But 

another thing is, too, with the small program rates, the 

reason why I brought that issue up is because even though, 

Adam, you had mentioned that the Department is not using the 

small program rates to determine Title IV eligibility, 

basically to make it simplify it. There's concern within the 

proposed rule on page 18 as it relates to certification 

procedures, section 668.13, with the usage of small program 
Committee Meetings - 03/15/22 33

rates as it relates to program participation agreements. And 

approving those or recertifying those or putting them on 

provisional status. And so, it is listed that small program 

rates would be something Department could look at and take 

into consideration. And so that brings us pause a little bit. 

So that's why I was wanting to just make sure that the small 

program rate capturing additional programs beyond the 

published 222 programs that we're seeing here in this chart.

MR. ROBERTS: Okay. Thank you. Not seeing any other 

hands. First, I just want to thank Brian for the data 

presentation that was very helpful. And just in terms of I 

think some of the outstanding requests, just per the 

protocols, the Department will either respond or provide a 

rationale as to as to why they cannot, whether it's time 

constraints or availability of data or whatever. But I just 

want to remind folks of their protocols as we return to 

discussion. But first, I do see Jamie, your hand. Right. I 

think you're.

MS. STUDLEY: The cursor disappears when you need it 

the most. It would be helpful to me to have a sense of how the 

Department plans to move through GE and these complicated 

issues. I, for one, would welcome the Departments linking the 

data to the rule that's been proposed so that we can 

understand how they believe it supports the very specific 

regulatory provisions that we are going to be asked to support 

or decline to support. And I don't know if that. I appreciate 

Brian's description of the data, but could the Department give 

us a sense of how they see the flow so that we can do the work 
Committee Meetings - 03/15/22 34

with the data to try and understand how they relate to the 

particular provisions, the changes from 2014 and so on.

MR. FU: So, I think what we've provided sort of is 

the best available information. A lot of the data elements 

that are noted the limitations include the fact that we don't 

include private loans and institutional loans, and we 

essentially don't have that unless we implement the rule set. 

Are those the specific things you're talking about, those the 

methodologies are you're talking kind of broader than that?

MS. STUDLEY: I think I'm talking more broadly than 

that. You've done the best you can with what's available to 

provide us with the data. The Department has made a proposal. 

I'm wondering if the Department will help us say here's how 

this supports the key provisions. So, Brian, it's probably not 

your job, but I say that with tremendous respect. You've 

brought this forward. And my question is, how are we going to 

look at what we interleave as we go through the provisions of 

the section how's the data supported. That's what I'm looking 

for from the policy recommendation side of the Department. The 

2014 rule has been through that kind of analysis. We have some 

significant decisions that we'll have to make. And I just 

wonder so that we know when where to put our comments and what 

work we can be brought to us to support those recommendations. 

Whether we're expected now to totally leave the data, whether 

the Department will help us weave it together with the 

sections. And we're looking at what the numbers are. How do 

the numbers relate to the policy recommendations? So, it's not 

a question for you, Brian. It's really a question for the I 

think probably the head negotiator and Dr. Looney. It's not 
Committee Meetings - 03/15/22 35

that I need an answer right now. Maybe I can put it another 

way. I am feeling a need to crosswalk the data and what it 

tells us about why these are the best, why these are the 

proposals the Department thinks we should make. I saw real 

power in the 2014 rules in what it did in terms of effects. 

And I'd like to end up having to vote on something that I can 

understand in terms of whether it will be positive as well.

MR. ROBERTS: Greg, I do see your hand up.

MR. MARTIN: Yeah, I certainly understand the desire 

for more data or more analysis. I can say at this point that 

we've given we've provided all we feel we can provide at this 

point. I don't intend to do any more cross walking of data;

we'll walk through the we'll walk through the issue paper as 

it is. Where you have specific questions that involve data 

that that I can't answer, I will try to get an answer today 

for that. I do want to point out that fully being fully aware 

and respectful of where everybody is and always the desire to 

have more information that we are charged with getting through 

getting through this this week, we will take a vote on 

consensus today and everybody will have to act in accordance 

with their conscience, their own beliefs and what we have in 

front of them, which is not to say that I don't want to 

address concerns. I will make every attempt to address the 

questions and concerns where they come. But what we will not 

be able to provide any additional data were at day two of five 

days in the last in the last session. So, at this point I 

would ask people to consider how they will look at this based 

on what we what we have which again, if you have specific 

questions related to specific areas we walk through as it 
Committee Meetings - 03/15/22 36

concerns to the data, I will make every effort to try to get 

an answer for that.

MR. ROBERTS: Thank you. Barmak.

MR. NASSIRIAN: I want to thank the Department for 

providing what it has. I've realized how difficult the task 

they've been assigned with is. So, I want that as the context 

for my comments. I have to tell you; I don't find the data 

particularly enlightening here. They add some insights but the 

variances in the inputs are so complicated and they work in 

such mysterious, potentially mysterious, interactive ways that 

I really cannot draw any conclusions on the basis of these 

data about the likely impact of what we're doing. But having 

said that, I should also point out that that from a strictly 

scientific point of view, we are attempting to look at a 

phenomenon with that instrument. And if the phenomenon is 

unknown, the best you can do is attempt to construct a 

reliable instrument. That reliable instrument is consists of 

the normative decisions we make about the rule. I really want 

to caution people from drawing glib conclusions from any of 

the facts that may be available to them from these data. 

Because the fact that X percent of programs may fail be that a 

low number or a high number does not in itself mean anything. 

It only means something if you start with some assumption that 

these programs are all great programs, and the fact that that 

many of them fail indicates that the calibration device you're 

measuring stuff with is wrong. That is not a correct 

conclusion. It may well be that the programs are really 

garbage and the instrument you've constructed is actually 

accurately reflecting the goals that the normative judgments 
Committee Meetings - 03/15/22 37

you made in constructing that instrument was intended to 

accomplish. So, I appreciate the need for data. I realize we 

need to know what the impact of regulations are, but in 

general, government is not omniscient. You can't expect every 

public policy decision to give you absolute precision in terms 

of impact. You should have a sense of that impact. Given the 

fact that we're not likely to have consensus here. The 

Department will have additional months to hone its methodology 

and address any concerns. I have some concerns I'd like to 

address. But this notion that this is data driven is just it's 

just erroneous. We're looking at a at a at a very indistinct 

landscape here with an instrument that we can only devise on 

the basis of our judgment, not on the basis of what it 

measures, because we don't know what it's measuring.

MR. ROBERTS: Thank you, Barmak. Jamie, please.

MS. STUDLEY: In the words of one of the Department's 

wisest data people many years ago, you need to have the data, 

but the data will not make the decision for you. I absolutely 

agree, Barmak. What I what I was responding to was the hunger 

that people have to try to understand what the data do reveal 

to us and through. And what support we can get from it. But I 

absolutely agree that the decision about whether this appears 

to be wise policy to address serious areas of concern remains. 

Not to try and ask you to answer it right now. But one 

possibility, especially with this fresh data is to go as far 

as we can with GE today, but decide whether it would be more 

prudent to allow us to return to it later in the week. But I 

leave that to the Department and the facilitators and look 

forward to getting into the substance of the sections.
Committee Meetings - 03/15/22 38

MR. ROBERTS: I appreciate the transition. Right now, 

I will just say from the perspective of the facilitation team, 

it is our intent to pick up discussion on the issue paper for 

Gainful Employment this morning through the afternoon and then 

take a consensus check this afternoon. That is the intention. 

But with that, I do want to turn it back over to the 

Department to key up discussion to return to Gainful 

Employment with again reiterating my thanks to Brian and the 

Department's data team.

MR. MARTIN: Thanks, Brady. We have, that will, I'll 

have Renee cue up the text. And yesterday we finished and 

before we start, I definitely want to add my, thanks to Brian 

Fu for his excellent presentation and for being able to be 

with us and not only presenting but fielding all of your 

questions. So, in subpart Q in 668.402, we were looking at we 

were looking at definitions. And when we left off yesterday, 

we had discussed through the definition of cohort period. So 

today we'll take up with the definition of an earnings 

threshold. So, we'll go through these definitions and then 

we'll stop at the end of the definitions and have an 

opportunity for discussion at that point. So, I'd like to 

start today with earnings with the earnings thresholds. So, 

this introduces something new over what you saw in session in 

session two, the introduction of the earnings threshold. So, 

we'll just walk through this, based on data from the Census 

Bureau, the median earnings for all for a working adult aged 

25 through 34 with only a high school diploma or GED, in the 

state in which the institution is located or nationally if 

fewer than 50 percent of the students in the institution are 

located in the state where the institution is located. And 
Committee Meetings - 03/15/22 39

we've added this definition for the earnings threshold, which 

is the median earnings for again, for the working adult aged

25 to 34 with only a high school diploma. And again, this is 

derived from the Census Bureau. Under a below that under 

Federal agency with earnings data, we are you see here the 

inclusion of the earnings the earnings threshold. So, this is 

a Federal agency with which the Department enters into an 

agreement to access earnings data for the D/E rates and 

earnings threshold measures. And that concludes the changes 

for definition. So, I'll stop there and entertain any comments 

on what is in proposed 668.402 definitions.

MR. ROBERTS: Alright. Thank you, Greg. Brad, your 

hand is up first.

MR. ADAMS: Thank you. I'd like to propose to the 

committee, I mean, definitions are five pages of this 19-page

document that we stick at least by page, to have some sort of 

order to this analysis. I'm open if you don't want to do that, 

Greg. But I do think it would help.

MR. MARTIN: I do want to point, I mean, I take your 

point, Brad, but I'm not I'm not going to walk through the 

entire document just where we've made changes over the 

previous week.

MR. ADAMS: Well, Greg, if you don't mind, I'd like 

to just ask a couple of questions here of the Department. But 

I'd like to just confirm that the Gainful Employment 

definition under statute in the Higher Education Act does not 

specifically reference any debt-to-earning metric or any 

earnings metric or really any metric in particular on just the 
Committee Meetings - 03/15/22 40

gainful the definition of what is a Gainful Employment 

program. Can you just confirm if that's accurate?

MR. MARTIN: I'll ask Steve to add to that. But the 

definition, the statutory definition, you're correct, is not 

reference metrics. It simply defines a it defines a Gainful 

Employment program. But the Department does consider, and it 

has been sustained legally that we do have the authority to 

regulate in that area. Steve, do you want to add to that?

MR. FINLEY: That's a correct statement. And Brad's 

statement is correct. There's no reference to debt-to-earnings 

metrics. It's for programs that prepare students for Gainful 

Employment in a recognized occupation.

MR. ADAMS: Just a follow up question to that then, 

Greg, does the does the Department have the ability to 

calculate a debt-to-earning metric comparable to the debt-toearning metric for a Gainful Employment program in section 

668.43 or a separate subpart? Does it have the legal statutory 

authority to basically request that all other programs 

calculate a disclosure?

MR. MARTIN: I'll ask Steve to address that. That's a 

legal question.

MR. FINLEY: I'll make sure I'm not muted. There's 

certainly broad authority to the Department to provide 

information to students, prospective students, and families 

about educational programs.

MR. ADAMS: It could be calculated in a similar 

format as what's being proposed in this issue paper?
Committee Meetings - 03/15/22 41

MR. MARTIN: Yes, we could, yes. Are we capable of 

calculating rates for those programs? Is that what you're 

asking?

MR. ADAMS: Yes, sir.

MR. MARTIN: Yes.

MR. ADAMS: So, I spent a considerable amount of time 

in order to meet the deadline that was one week after our last 

session ended, proposing a separate subpart for that 

calculation. And we're not subject these programs to the 

actual losing Title IV eligibility as a Gainful Employment 

program would. It was just a simple calculation, and as I read 

in 668.43, there is a request for earnings information as well 

as debt information. So, I'm just curious if the Department 

could answer why they chose not to include any of my proposed 

language on a disclosure for the programs not subject to GE 

understanding that that disclosure would not impact the 

program's ability to retain their Title IV aid based on the 

results of the metrics. Can you just answer why we're choosing 

not to disclose that key information that 75 percent of 

programs we just reviewed that aren't subject to GE?

MR. MARTIN: Well, I don't want to preclude the 

Department's ever looking at, I mean, certainly there 

certainly is a lot of information on the Scorecard about all 

the programs you're talking about applying the metrics that we 

have here for Gainful Employment programs to all programs and 

publishing and publishing data on that. I can only say, 

Bradly, that currently the Department has no intention of 

doing that. We did we did consider your request. Right now, 
Committee Meetings - 03/15/22 42

we're limiting it to just gainful those programs that are 

affected, whose eligibility is affected under Gainful 

Employment. And I don't I don't have anything else to say on 

that matter now. That's about all I can, unless Steve wants to 

add something.

MR. ROBERTS: Steve, go ahead. This time you're 

muted, unfortunately.

MR. ADAMS: It happens. Thank you. I think there's a 

lot of better information about a lot of programs that are 

evidenced in the proposals here, whether it creates what 

you're suggesting, which would seem to be a directly 

comparable metric, you know, I don't see that there. But there 

is a desire to improve the information about the programs that 

shows up in a lot of the discussions this week. And your 

proposal was noted and we're moving forward to continue the 

discussions that have already been started.

MR. ADAMS: Well, thank you for your response. I do 

want the committee to understand what was just stated on the 

record as the Department could, if they chose to do so, 

calculate a debt-to-earning rate for all programs at all 

institutions. And so, by voting for this Gainful Employment 

issue paper as currently written, would basically not protect 

75 percent of programs when we could easily do that. So, a no 

vote to me is a vote against protecting students at all 

institutions and all programs. But I do have a specific 

question on page two. I'll go into next and it's on the CIP 

code and the four-digit versus six. And I don't think we ever 

got a good explanation in round one other than we wanted more 

insight on subject two. But I'm struggling. I did some CIP 
Committee Meetings - 03/15/22 43

code research this morning and 5109 zip code, which is called, 

let me pull it right back up here, the Allied Health 

Diagnostic Intervention and Treatment Professions. Physician 

assistant, which is a master's level program accredited by 

ARC, is in the same category as surgical technology, which is 

it used to be a certificate program. Now is an associate 

program under a different accreditor, very different terms, 

very different outcomes, very different pay rates. So why if a 

surgical tech program failed this as written, we would not be 

allowed to open up a new physician assistant program. We're 

talking like four- or five-times different salary. Can the 

Department just address why they didn't look at 5108 and 5109 

and lumped all these things together? I mean, 5108 has a 

medical assistant.

MS. MILLER: Brad, your time is up.

MR. ADAMS: I'll let the Department answer. Thank 

you.

MR. MARTIN: In constructing the rule, we didn't look 

at specific we didn't look at specific programs. I, I take 

your point. I think that that the rule has been written in 

consideration of a, you know, of issues more broad than that. 

And we did, as I said before in the previous sessions, want to 

include a broader scope of programs so that there would be 

rates for more programs. There is a there is a, you know, in 

any in any regulatory activity, there is a there is a you 

can't hit everything exactly the way you want it. There is a 

give and take. By and large, you know, and it is true that 

when you go to a four-to-four-digit SIP, it does lump more of 
Committee Meetings - 03/15/22 44

those programs together. On balance, we still believe this is 

the right way to go.

MR. ROBERTS: Thank you. And I just want to remind 

the committee that folks are always welcome to recue if they 

hit that three-minute timeline. We know it goes fast, but 

you're always welcome to recue for new comments and questions 

for the Department. But Emmanual, please go ahead.

MR. GUILLORY: I just had a question regarding the 

definition of a two-year and four-year cohort. I noticed the 

Department made some changes there, and I wanted to make sure 

that I understood because based on the two-year cohort, for 

example, it starts off with the third and fourth award years. 

But when I do my calculations and looking at the actual award 

years listed, it seems to be the fifth and the sixth award 

years from 2021, at least based on how this is worded. So, I 

just want to get clarification on that. And then I also wanted 

to ask when it relates to the earnings data years that that 

would be used. So, it has 2018 and 2019. How does the 

Department envision using both of those years? I noticed the 

median of the earnings, but are you looking at earnings in 

2018 and 2019 and doing a median of the earnings across both 

years? Because it seems like it would be easier to pick a 

year, you know, pick 2019 and just do the earnings from that 

year and do the median. But I just wanted to make sure I 

understood what the Department was doing in both the two-year 

and four-year cohort regarding those things.

MR. MARTIN: Let me get a clarification for that. So 

just to go back, Emmanual, to your first concern about the 

years specifically as you're looking at for the two-year 
Committee Meetings - 03/15/22 45

cohort, the third and fourth year is prior to the year for 

which the most recent data are available. That's where you are 

and so just to be clear, so that we can answer this for you to 

assess programmatic eligibility in the award year 22-23 would 

be calculated in 2021. The two-year cohort period being 2014, 

2015 and 2015 and 2016, right?

MR. GUILLORY: Mm hmm.

MR. MARTIN: So, you're concerned there is that.

MR. GUILLORY: Yeah. I mean, it's not really a 

concern. It could be whatever the years are, I don't really 

care what the year are. I just wanted to make sure that, you 

know, this says third and fourth years and that seems to be 

the fifth and the sixth award years. And I just wanted to see 

where my what am I missing with that? And then. So, let's just 

stop there. So yeah.

MR. MARTIN: Okay, let me, I'll get a clarification 

on that for you and also and also the earnings.

MR. GUILLORY: Yeah. And then the earnings over the 

two years, why does the Department choose one year and look at 

the earnings, in my opinion, from 2019 to 2019, why not look 

at 2019 earnings in that year for all the students in that 

cohort, compare them for that year and do the median that way. 

What's the point of the two years and how that work together 

is really what I'm just trying to better understand.

MR. MARTIN: Okay. Thank you.

MR. GUILLORY: Thanks.
Committee Meetings - 03/15/22 46

MR. ROBERTS: Cindy, I think I hear you. For some 

reason, I'm not getting sound from your end.

MS. JEFFRIES: I just want to pick up on something, 

Brady said in an effort to help the committee navigate their 

way through this document and to help the Department better 

understand your concerns and to hear any proposed changes to 

what they've put out there for their consideration during this 

discussion. We ask that you limit your 3 minutes to things 

that have not previously been stated and are clarifying 

questions or a new concern and offer any suggestions that you 

have to the changes you see before them. GE is a topic that is 

going to move forward. And so, we want to try to make the most 

productive use of the time for you to get the information and 

the Department to get the information they need.

MR. ROBERTS: Thank you. With that, Brad, I see your 

hand up next.

MR. ADAMS: Thank you, Cindy. And in all due respect, 

every one of my comments was tied to a comment in my issue 

paper that I responded with. And so, I would like to make sure 

that this committee is only reviewed this for a second time. 

And there's a brand-new metric that causes GE programs to fail 

is considered and we have the right amount of time. So, I do 

think we need to make sure we're spending our time on this. I 

would like to ask the Department, and now I'm on page three in 

the two-year cohort period where Emmanual was just 

referencing. So, if I'm reading this right, we roll it forward 

one year, we're rolling right into the COVID 2020 year in this 

proposal. Has the Department considered that impact that it's 

the biggest pandemic and unemployment rates reaching 30 
Committee Meetings - 03/15/22 47

percent at certain points since the Great Depression? Is that 

really what we want to do as a committee is roll right into a 

COVID year on the first year out of the gate on this, just 

what's the Department's thoughts on 2020 as a salary year?

MR. MARTIN: Thus far, I mean, you know, it's 

included. We haven't we haven't proposed to exempt that year 

for in consideration of COVID. I'll take the concern I'll take 

the concern back.

MR. ADAMS: My proposal suggested that we start 

earnings in 2022 forward so that we would start in 2024 or I 

guess it'd be 2024 or 2025. I'd have to do the timeline math 

here. But to start right in the worst pandemic of all of our 

lifetimes would be not an appropriate thing to do. Let me ask 

on the on the residence programs, why are we limiting it to 

just medical and dental, which is romanette two? Because there 

are many other programs, doctoral level or even master's level 

that have residency programs. Some are required, some or not. 

And why are we limiting it to just basically DO and DDS 

programs in romanette two?

MR. MARTIN: Yeah, we certainly, I do understand that 

there are other programs besides the medical and dental 

internships and residency. One, and this pretty much mirrors 

the previous regulations. And when we think of a residence 

[inaudible] residence, you know, this is what normally comes 

to mind dental and medical. And there is and the huge 

differences in income that accrue to those graduates as you as 

you as you look over that period. If there is if you're making 

a suggestion to include other types of and I think also when 

you move beyond when you move beyond medical and dental, you 
Committee Meetings - 03/15/22 48

start to get into any number of programs that could have 

something that they that they call a residence or a or an 

internship. And the I think the potential for it to include 

just an unlimited number of programs starts to emerge.

MR. ADAMS: Thank you, Greg. I did include that 

proposed language in my submission. So, I do think we need to 

include others. But maybe this is a good time. It's either 

here or on page four. But talking about credential levels. I 

proposed where graduate programs would be excluded from the 

actual not from the D/E calculation, but from losing Title IV 

eligibility. And there's various reasons for that. Since that 

proposal, there's been some talk on this committee around 

excluding programmatically accredited programs that lead to 

licensure.

MS. MILLER: 30 seconds, Brad.

MR. ADAMS: And did not know if the Department has 

thought about a program like we'll just say Doctor of Physical 

Therapy where it has a license requirement, a programmatic 

requirement to then take and then essentially thus meeting a 

Gainful Employment criteria of passing licensure. Has the 

Department thought about that and some of the comments that 

have been brought up?

MR. MARTIN: We have given consideration to 

everything submitted to us. With respect to graduate programs, 

we do have concerns about the debt levels which are being 

taken on for a lot of graduate programs and especially related 

to the earnings potential out there for them. With medical and 

dental there is obviously a once you have once you have a 
Committee Meetings - 03/15/22 49

medical degree or a dental degree and an earnings potential, 

that that far exceeds many other programs. So that's going 

back to the exclusion of the residents of the extension to the 

extension of the 6th and 7th award years for medical and 

dental residence. I don't, with respect to excluding graduate 

programs altogether, the Department is not going to go in that 

direction.

MR. ADAMS: Well, again, there are other programs 

with salary outcomes like dentists and doctors and CRNAs.

MS. MILLER: Brad, your time is up.

MR. ADAMS: So, I'd like the Department to consider.

MR. MARTIN: I'll take back the suggestion for about 

the residence and internship programs. As far as the excluding 

graduate programs go, I can say now that that's not something 

which is on the table.

MR. ROBERTS: Anne.

DR. KRESS: Sure. So, my question is on page five, 

it's at the very bottom of the page, it's (c)(1), romanette 

three. And so, the Department has a change here that the 

denominator median annual or discretionary earnings of either 

rate is zero and the numerator median debt payments is zero. 

So, can you explain why it's not sufficient alone that the 

numerator is zero, why it has to be and rather than just the 

numerator being zero?

MR. MARTIN: You're talking about in 403?
Committee Meetings - 03/15/22 50

DR. KRESS: Yep. I'm in 403 at the very bottom of the 

page.

MR. MARTIN: Yeah, we, we, let's wait until we get 

there because we didn't get there yet.

DR. KRESS: Oh, you're not there yet?

MR. MARTIN: No, we just finished, we just went 

through the definitions for the table.

DR. HOGAN: Okay. So, I'm going to come back in the 

queue when we get there.

MR. MARTIN: Okay.

MR. ROBERTS: Anything else on the changes for week 

three definitions, Brad?

MR. ADAMS: Yes, let's see here. So, I'm curious on 

the earnings threshold, what the driver was in choosing the 

threshold that the Department chose? We reviewed four for 

about a total of 10 minutes in week two. And the Department 

has obviously chosen a threshold based on median earnings age 

25 to 35 with a high school diploma GED. I'm just curious why 

we landed on that?

MR. MARTIN: I mean, obviously, there are there are 

very there are various options. So, we're looking but we are 

looking at doing, you know, a reasonable comparison with the 

threshold and what is it reasonable to assess these programs 

against and a high school graduate at that level. We 

determined that would be the that would be a reasonable a 

reasonable place to be and assess these programs. But I can 
Committee Meetings - 03/15/22 51

try to get more details as to the thinking behind it. But do 

you have anything to add to that, Steve?

MR. FINLEY: No.

MR. ADAMS: You know, it's just the frustration is I 

mean, this is now a threshold upon which a program would lose 

its Title IV eligibility. And we spent more time talking about 

transcript withholding that wasn't even an issue paper then we 

spent talking about this threshold. And I'm just surprised 

that the Department has not produced any data whatsoever to 

say why we picked this option versus the other three. We all 

requested it in last session to get data on this.

MR. MARTIN: Your concerns are noted, Brad. I don't 

have anything else I can say about that now.

MR. ADAMS: Just to mention one other thing on the 

calculation. So, this 50 percent of the students at the 

institution are located in the state where the institution is 

located did not use a national average. So, I'm in six states 

in the Southeast with Federal minimum wages of $7.50 but now 

I'm compared against wages in California and New York because 

I don't have 50 percent or more in one state. And so, I'm 

curious why, for example, you pick the program, but a surgical 

tech in Tennessee is being compared with a high school earner 

from New York City?

MR. ROBERTS: Okay. It looks like the, there's no 

immediate response. So, moving to Barmak next. But did you 

have more, Brad? I apologize.
Committee Meetings - 03/15/22 52

MR. ADAMS: I just, I'm curious. So, we're not going 

to state why we think it's okay to compare, especially 

programs in the southeast to the nation where we know based on 

where you're located, wages are less? I just would like an 

answer to that.

MR. ROBERTS: The only thing that I would say is I 

think the Department has noted the objection. They might not 

have a response immediately prepared at this time.

MR. MARTIN: I'll get I'll get a response for you for 

you.

MR. ROBERTS: Barmak.

MR. NASSIRIAN: Yeah, I'd like to speak in strong 

defense of the language that the Department has here. To me, 

the choice of alternative thresholds, like what, poverty line 

people, people paying money, the Department of Education 

spending money, people wasting their time so that they can 

live at poverty or 150 percent of poverty or earn minimum 

wage. I mean, those are laughable propositions. These are 

postsecondary programs intended to place people in jobs. And 

if those jobs end up earning less than they would have before 

they went in. That is that is the hill I would die on. That is 

just a ridiculous proposition to suggest that the feds need to 

invest money. People need to spend time so that they can make 

less than they would have as a high school graduate. So, this 

is the correct index, in my opinion, is the correct threshold. 

I also want to commend the Department for the distinction it 

has made a very rational one in choosing working high school 

students and all GE graduates. The rationale for that is we 
Committee Meetings - 03/15/22 53

don't know somebody, lots of people graduate from high school 

who voluntarily opt out of the labor force. It strains 

credulity to think somebody who doesn't intend to participate 

in the labor force will go through the effort of actually 

enrolling in a postsecondary program that is designed to place 

them in the labor force. So as sometimes things look like 

they're not perilous. This is the right perilous. It has to be 

working high school students and everybody who goes through 

the gainful programs. And in response to Brad's concern, I 

appreciate what he's saying, but consider the alternative. The 

alternative would be that online programs would get ensconced 

in in low waged states and then reach out and touch people in 

California and New York. So, I think that 50 percent threshold 

is a very reasonable prudent metric to ensure that we don't 

end up with online predatory programs dominating the field. 

So, this provision, unlike a lot of other things I've said 

about this provision, is configured just right, and I would 

not alter any of it. Thank you.

MR. MARTIN: Thanks, Barmak. Yeah, I do want to say, 

when we look at the earnings threshold, you know, building on 

the low wage state issue there. So, if the earnings threshold 

is based on the state, in the state in which the institution 

is located, if it's a brick-and-mortar institution, if we're 

going to use the example of a lower wage state, then that will 

be --those students-- the earnings against which it will be 

measured will be from that state. And I would say in in the 

instance where a school chooses to be involved in distance 

education and you have fewer than 50 percent of the students 

at that institution located in that state, it doesn't pass the 

reasonable test to say at that point that you would use the 
Committee Meetings - 03/15/22 54

earnings in that state anymore, because a program like that is 

likely to not always, but likely to be a distance in the 

distance environment. And even if it isn't, then the people 

attending that school are not from that state. So, it doesn't 

make any sense at that point to use e the earnings just for 

people in that particular state if the students at the school 

are predominantly not from that state. So, I don't think that 

prejudices the program.

MR. ROBERTS: Thank you. Johnson, I see your hand 

next.

MR. TYLER: Yeah. I just want to say, I think there 

was a discussion where we wanted if there was going to be a 

threshold, that it would be easily understandable. And this 

does make sense. You know, people understand what a high 

school diploma is worth, and they go to college or continue 

their education after high school to increase their earnings. 

So, I think it's completely justifiable here, and it certainly 

is something my clients would appreciate having not gone to 

some schools --that did not increase their earning power at 

all. I just left them with that.

MR. ROBERTS: Thank you. Debbie.

MS. COCHRANE: Thank you. I wanted to touch base on 

the cohort points and the two years of work in the third and 

fourth years for most programs, and then the sixth and seventh 

for the medical and dental programs, given the residencies and 

I know that this is something that's been in the rules since 

2011, we went back and looked at the rationale for that 

relating to the residencies between three and eight years for 
Committee Meetings - 03/15/22 55

those types of programs and the need to kind of push out. I 

would just say I don't have suggestion language, but if there 

was another approach for certain programs, if there's the same 

kind of rationale applies, I would be in support of having 

such programs can appeal to the Department to basically allow 

for an extra year or so in the cohort period if there's also 

similar licensure requirements that that necessitate that.

MR. MARTIN: Thank you.

MR. ROBERTS: Thank you, Brad.

MR. ADAMS: I just want to be clear for the record 

that the request that I have here is not challenging the 

metric. It's just getting an understanding from the Department 

so that this committee can vote on something they're seeing 

for the first time today. Really, we just found out the rate 

the Department even know what the average national rate was 

until 15 minutes ago. And so, it's just about the clarity and 

making sure we get a justification for why we're choosing what

we're choosing. Remember, we are only applying this to a small 

percentage of programs. So, we're basically saying the other 

75 percent of students out there that attend these 

institutions outside of Gainful Employment, we don't care if 

you make more than a high school earner. And so, it's to me, 

the unreasonableness is not the metric as much as the way it's 

been delivered to us. The timing, we've had to review it. And 

we just heard from Cindy earlier today that we're going to be 

taking a consistent check on this later today. And we just 

found out what the number was. And that's unfortunate. It's 

really unfortunate that we were not taking this more seriously
Committee Meetings - 03/15/22 56

and we're rushing it just to hit a November 1st deadline for 

this. Thank you.

MR. MARTIN: Thank you.

MR. ROBERTS: Greg, I'm not seeing any additional 

hands on the definition section. Do you want to pick us back 

up?

MR. MARTIN: Sure. So, we'll move on to section four 

668.403 on page five. What is Gainful Employment framework. 

Thank you, Renee. So our first under A, a program a Gainful 

Employment framework general program that provides training 

that prepares students for Gainful Employment in a recognized 

in a recognized occupation if the program or I should say a 

program provides training that that prepares students for 

Gainful Employment in a recognized occupation if the program 

satisfies the applicable certification requirements in 668.404 

and is not an ineligible program under the D/E rates. And you 

see the addition here of is not an ineligible program under 

the newly added earnings threshold measures. Just making that 

clarification. Going down to C. Outcomes of the D/E rates. A 

D/E program passes the D/E rates if its discretionary earnings 

rate is less than or equal to 20 percent, or its annual 

earnings rate is less than or equal to 8 percent, or the 

denominator that's the median annual or discretionary earnings 

of either rate is zero and the numerator median debt, median 

debt payments is zero. And then in two, a GE program fails the 

D/E rate if it's discretionary earnings rate is greater than 

20 percent or the income for the denominator of the rate 

median discretionary earnings is negative or zero and the 

numerator is positive and the annual earnings rate is greater 
Committee Meetings - 03/15/22 57

than 8 percent, or the denominator of the rate, which is the 

median annual earnings is zero and the numerator median debt 

or medium debt payments is positive. Here this is this this 

change doesn't change anything over the way we produced the 

2014 rates so that the way we produce those rates is 

consistent with these edits. If both the debt and earnings are 

zero, the program passed. If the debt is nonzero and the 

earnings are zero, the program is failing. And so, we've 

clarified that point throughout the section. And so, I'll move 

on to (c)(4). I'm sorry. I'll move on to D rather we move on 

to D, which is on page six and that's the earnings threshold 

measures. This is new. This section walks through the 

framework for the earnings threshold measure for each award 

year the Department will assess the rate. The rate is passing 

if the median earnings exceed the threshold as defined in 

668.402, which we just went through, or it is failing if the 

median earnings is equal to or less than the earnings 

threshold. The program becomes ineligible if it fails the 

earnings threshold measured in two out of any three 

consecutive years. So, I'll walk through that with you since 

it is new. This is in D and E, so earnings threshold measure 

under D. For each award year, the Secretary assesses the GE 

program under the earnings threshold measure using the 

procedures in 668.405. And then looking at the earnings, the 

outcomes of the earnings threshold measure, a GE program 

passes the earnings threshold measure if the median annual 

earnings of the students who completed the program exceed the 

earnings threshold. A GE program fails the earnings threshold 

measure if the median annual earnings of the students who 

completed the program are equal to or less than the earnings 
Committee Meetings - 03/15/22 58

threshold. A GE program becomes ineligible subject to 

paragraph (d)(4) of this section if it fails the earnings 

threshold measure in two of only three consecutive award years 

for which the program's median earnings threshold measure is 

calculated, except that failing the small program rate does 

not make those programs ineligible. If the Secretary does not 

calculate or issue earnings threshold measures for a program 

for an award year or calculates only a small program measure 

with respect to that program, the program receives no results 

under the earnings threshold measure for that award year and 

remains the same in the same status under the earnings 

threshold measure as the previous award year. So that is the 

entirety of 668.403, the Gainful Employment framework. So, 

I'll open it up for discussions and comments on that section.

MR. ROBERTS: Feedback for the Department on the 

modifications to 403? Anne.

DR. KRESS: So, thank you first for answering my 

initial question that you're just clarifying the language that 

was in the 2014 standard. But I have another question. Just if 

we've discussed this, I apologize, I missed it. In the data, 

when you're looking at the earnings threshold, are you 

considering only full-time employees or are you considering 

full and part time in both categories, the GE earners and then 

also the high school graduates?

MR. MARTIN: Let me, I just want to request a 

clarification on that for my group before I answer that 

question. So, I should be getting that posthaste.

DR. KRESS: Okay. Thank you.
Committee Meetings - 03/15/22 59

MR. MARTIN: Steve, can you answer that off the top 

of your head? Or I'll wait, I'm going to wait for 

confirmation. I don't want to say.

MR. FINLEY: Yeah, let's get clarification.

MR. ROBERTS: Thank you. Brad, I see your hand next.

MR. ADAMS: Yes, we requested this data previously. 

The Department (I do not believe)has answered the question. 

But on the thresholds of 8 and 20 now being the fail baseline 

for the two-year losing your program versus the previous 

methodology of the zone and the 30 and 12 as the previous 

metrics to be the failing stick for the two of the three years 

versus the zone was I believe four years. Can the Department 

describe why they eliminated the zone and why we believe eight 

in 20 is appropriate metrics to determine Gainful Employment?

MR. MARTIN: The 8 and 20 rates are what we used in 

the previous rule 14 rule. Of course, you're [inaudible] this 

rule, but we have eliminated the zone alternative. With the 

elimination of the zone, the rates, or rather the measure, 

will be more effective and more timely, you know, addressing 

those programs where students’ earnings don't allow those 

students to repay the debt they’ve taken on for those 

programs. So, there is a desire here for the effect of the 

race to be timely. And the elimination of the zone 

accomplishes that.

MR. ROBERTS: Go ahead. Sorry.

MR. ADAMS: I have an additional question for this 

for this section. So, Greg, I understand that there was a 
Committee Meetings - 03/15/22 60

College Scorecard technical review panel meeting that convened 

last week to discuss the potential of adding this earnings 

threshold metric to the public facing website. And I believe 

from what I understand, there were several researchers who 

participated and were concerned that using an earnings special 

measure, even for transparency, would be problematic. So, 

could you give, or the Department give us a brief summary of 

that meeting and how those concerns relate to what we're 

considering here for accountability purposes?

MR. MARTIN: I was not at that meeting? And I'm not 

certain as to what occurred. I can certainly ask for an 

account of what happened there, but I me addressing that right 

now would just be pure speculation. So, I would wait to hear 

from somebody who was actually at the meeting.

MR. ADAMS: Okay. Again, my concern more so than the 

actual thresholds, is the time frame for loss eligibility. I 

mean, there's no appeals process. There's no transitional 

rates. If there is inaccurate earnings information being 

provided from wherever it's going to come from. If you fail 

one year based on the disclosure requirements in this 

pronouncement, your program is gone. And that is a significant 

in this economy for certain programs like nursing and other 

health care and really a majority of all programs. That would 

be a very unfortunate thing to be implementing at this point 

in time. And so, the two of the three years failing is my 

biggest concern that we're addressing here. And I'd like the 

Department to consider going back to the four-year metric that 

we had previously under the zone. Thank you.

MR. MARTIN: Thank you.
Committee Meetings - 03/15/22 61

MR. ROBERTS: Thank you. Barmak.

MR. NASSIRIAN: I have raised this issue before, but 

I will raise it again in connection with the new language 

under outcomes subsection (e)(3), the introduction of a two 

out of three do over. I have concerns about the construct to 

begin with. I'm not sure why we need to give people two out of 

three in a row. But that notwithstanding, my greater concern 

is about the fact that the Department does not seem to be 

making any provisions for what happens to the students. 

Particularly when the program does end up basically failing 

GE. If failure to generate wages above high school graduates 

earnings represent a dashboard indicator of inadequacy of a 

program, why should the students that that were allowed to go 

through that program candidly recklessly because the 

Department didn't do a good enough job on the front end, why 

should those people not be awarded some kind of relief from

the burden that that was imposed on them so that the 

Department could make its determination that the program was 

not good enough? This is literally experimenting on live 

subjects. Their lives are going to be altered by the fact of 

that debt, and particularly, again, when the program does 

fail. So, I would really encourage the Department to 

contemplate some remedy for these for these victims, because a 

more prudent approach would have been to prevent such programs 

from accessing Federal aid in the first place. But now that 

they have access to it and that you use the students as the 

device by which you're going to determine program quality, at 

least in those cases where the program fails that quality 

assessment, student should receive some kind of consideration 
Committee Meetings - 03/15/22 62

here. That's just as a moral proposition, if nothing else. 

Thank you.

MR. MARTIN: Thank you, Barmak. So, I just want to 

clarify something with you. What you're suggesting then that 

whether we're a program failed the earnings threshold, that 

there would be some type of relief for those students in that 

particular program. Based on the fact that we're not talking 

about based on the on the fact that the program was forced to 

cease.

MR. NASSIRIAN: The Department is extending some 

consideration, and I understand that the attempt for soft 

landings and gradual sort of transitions. So, if the 

Department wants to extend and the Department has always 

extended the benefit of every doubt to schools, but in this 

case, if it wants to extend further benefits of the doubt, 

then at least cover the students that are being used as the as 

the instrumentation by which you measure quality. So, yes, 

when programs fail metrics but are not rendered ineligible, 

and certainly when they are rendered ineligible, students 

should be somehow cured of that, at least the debt that they 

took on.

MR. MARTIN: Thank you.

MR. ROBERTS: Okay. Ernest.

MR. EZEUGO: Yeah. I just honestly want to dido what 

Barmak is saying here, and I want to acknowledge that I 

appreciate the Department's reasoning, especially on getting 

rid of the zone, on wanting to kind of resolve these things 

quickly. Barmak is 100 percent right, though. I don't know. 
Committee Meetings - 03/15/22 63

I'm trying to be measured in saying this. The bar is the 

floor. I feel like the research when the original 2014 rule to 

the zone pointed to the 8 and 20 metrics as well. And the zone 

was kind of this measure of, well, I think it's appropriately 

giving the institutions the benefit of the doubt. I think 

that's fine. And I understand and even sympathize with some 

concerns of wanting to make sure that the data is correct, 

institutions are being treated fairly, etc., etc. But I would 

be remiss not to reup again, especially in my seat, the impact 

that this has on real lives, real families. And to that end, I 

would strongly second and support some kind of my colleague 

Amanda mentioned in the chat victim’s compensation or find 

something that considers the impact of students who attend 

these programs. You know, I just don't, I think it is it is a 

moral consideration here, but also pointing to a grand scheme 

of things real quick. It's also consideration of the potency 

of not just these programs, but all of higher education. I 

mean, regularly higher education deals with the question of

worth is worth it, etc., etc. And I would point super quickly 

to the fact that, you know, wherever we're not taking 

advantage of quickly attempting to make students whole in this 

way adds to that kind of plethora of considerations that 

individuals make when they ask those questions. So, thank you. 

And just want to reiterate, I'm appreciative that concerns 

were heard here about wanting to kind of cut the damage that's 

done under this.

MR. MARTIN: Thank you.
Committee Meetings - 03/15/22 64

MR. ROBERTS: I'll come off mute. So, I'm saying that 

it is noon. So, I think with that. Anne are you okay to hold 

this off till after lunch or is it a brief comment?

DR. KRESS: Oh, I was just wondering if Greg had a 

response to my initial question.

MR. MARTIN: I do not yet, but I'm breaking for 

lunch, and I'll be in a Department chat. So, I will definitely 

have it for you after lunch. So, if I neglect or forget, 

please raise it again. Okay?

DR. KRESS: Thank you.

MR. ROBERTS: We'll pick back up with, I think, the 

changes that are in section 668.404, right, Greg?

MR. MARTIN: Yes.

MR. ROBERTS: Okay, great. We will see everyone at 

1:00. And again, thank you for the discussion today.
Committee Meetings - 03/15/22 65

Department of Education, Office of Postsecondary Education

Zoom Chat Transcript

Institutional and Programmatic Eligibility Committee

Session 3, Day 2, Morning, March 15, 2022

From Sam Veeder (she/her/hers) to Everyone:

David Peterson will be at the table for FA Administrators 

for the GE topic.

From Adam Welle, State AGs (P) to Everyone:

Yael Shavit will be at the table for state AGs starting 

this morning.

From Kelli Perry - (P) Private Non-Profits to Everyone:

Emmanual will be at the table for Private Non-Profits for 

the GE conversation.

From Travis Horr (P) Servicemembers & Vets to Everyone:

Barmak will be at the table for GE

From Beverly Hogan Primary/MSI to Everyone:

=1 to Emmanual's comments on the breakdown of data for 

MSIs, especially HBCUs.

From Bradley Adams (P - Proprietary Institutions) to Everyone:

+1 to Anne

From Bradley Adams (P - Proprietary Institutions) to Everyone:

+1 to Emmanual's comments
Committee Meetings - 03/15/22 66

From Adam Looney (Advisor) to Everyone:

Brad, what was the question? What is the median of high 

school graduates who are working versus all high school 

graduates (working and not working)?

From Emmanual Guillory-(A) PNPs to Everyone:

Thank you to the Department for pulling this data 

together for us today

From Ernest Ezeugo (P) Students and Student Loan Borrowers to

Everyone:

+1 Barmak

From Jamienne Studley to Everyone:

Yes, thank you Brian and the data team!!

From Bradley Adams (P - Proprietary Institutions) to Everyone:

As requested yesterday can we please take the GE issue 

paper in smaller chunks of information

From Bradley Adams (P - Proprietary Institutions) to Everyone:

maybe by page?

From Jamienne Studley to Everyone:

+ 1 to Brad -- I understand that mental health and 

clinical programs have internship and residencies. The 

defining criterion to meet Greg's concern could be STATE 

REQUIRED clinical programs that are requirements for licensure
Committee Meetings - 03/15/22 67

From Laura Rasar King (A) Accrediting Agencies to Everyone:

+1 Brad

From Ernest Ezeugo (P) Students and Student Loan Borrowers to

Everyone:

+1 Barmak

From Bradley Adams (P - Proprietary Institutions) to Everyone:

+1 Debbie

From Bradley Adams (P - Proprietary Institutions) to Everyone:

My revised graduate exclusion proposal I presented and 

Debbie supported would be to let licensure pass rate 

administered by programmatic accreditor thresholds be the 

gainful employment hurdle for graduate and thus it would 

exclude the healthcare based graduate programs from the D/E 

metric if it leads to licensure and the obtains required or 

higher pass rates as the GE measurement.

From Laura Rasar King (A) Accrediting Agencies to Everyone:

+1 Brad

From Debbie Cochrane (P), State Agencies to Everyone:

I want to clarify my last comment which may not have been 

clear. My suggestion was to allow ED the discretion to accept 

slightly longer cohort periods for programs that have extended 

pre-licensure requirements. So, if a program required a year 

of internship pre-licensure, their cohort could be years 4-5 

instead of 3-4.
Committee Meetings - 03/15/22 68

From Jamienne Studley to Everyone:

+1 to Debbie re extending cohort period for programs with 

required pre-licensure reqts

From Bradley Adams (P - Proprietary Institutions) to Everyone:

I am okay with the proposed change being supported by 

Debbie and Jamie. Thank you for clarifying

From Amanda Martinez (P) Civil Rights to Everyone:

+1 Barmak

From Ernest Ezeugo (P) Students and Student Loan Borrowers to

Everyone:

+1 Barmak

From Amanda Martinez (P) Civil Rights to Everyone:

A victims compensation or fund

From Yael Shavit State AGs (A) to Everyone:

+1 Barmak and Ernest

From Jaylon Herbin- (A) Consumer Advocate & Civil Rights to

Everyone:

+1 to Barmak and Ernest