Two Sessions Down, One More to Go – Can Consensus Be Reached on New BDR Regulations?
And What Else is Happening In Washington That You Should Know About?
IMPORTANT REMINDER – 17 DAYS LEFT TO SUBMIT GE PROGRAM APPEALS
Gainful Employment Reminder: GE Appeals Due On Or Before February 1, 2018
For those within the CSPEN community who filed a Notice of Intent to Appeal one or more GE program Debt-to-Earnings rates by the October 6, 2017 deadline, please be aware that you have until Thursday, February 1, 2018 to submit final appeal documentation to the Department.
Several CSPEN community members have contacted Co-Executive Director Tom Netting regarding specific questions and issues related to the submission deadline and technical issues related to their individual program submissions. While Tom will always try to do his best to assist you, it is highly recommended that you direct your initial inquiries to the U.S. Department of Education’s GE Operations Team at AltEarningsAppeals@ed.gov.
If, following your request for assistance and guidance from the Department staff, you still have questions or the need for further assistance, Tom and CSPEN stand ready to provide you with support in any way that we can.
Federal Negotiated Rulemaking
The temperature in Washington may have been bitterly cold throughout last week’s Committee 1 – Borrower Defenses and Financial Responsibility negotiations; however, the deliberations at the second of three sessions were more than a bit heated at times.
While CSPEN had planned to provide you with daily updates of the proceedings, candidly for the almost the entire first two full days there wasn’t much to report as the Committee once again labored over philosophical views related to Issue Paper 1.
As reported in CSPEN’s summary of the first session, much of the dialogue – and rhetoric – throughout the second session continued to center around whether or not there should be a Borrower Defense standard at all and if so, what process and requirements should form the basis of such claims, their review, and determination by the Department. Should the application, review, and adjudication process be objective or subjective? Must or should “intent” be a part of any such assessment of “misrepresentation”, preventing admittedly very serious consequences possibly related to human error or a mistake – while protecting against willful act of deception and fraud? And, how would a “reasonable person” determine whether or not such actions were intended to mislead or did mislead regardless of intent.
It is not an exaggeration to say that the Committee members were locked in a war of words, supposition, hyperbole, and continued arguments over the circumstances that gave rise to the Obama Administration’s decision to regulate in this area. Polarized positions led to efforts by some to preserve the prior regulatory framework and the harmful directives contained within, and efforts by others to embrace the new proposals presented by the Department and work towards revisions to the new, more limited, but still important and necessary student protection requirements.
Fortunately, midway through day two, several institutional non-federal negotiators – including CSPEN nominee Michale Bottrill, CEO & CFO of SAE Institute North America – made it clear that the continued focus on the past was counterproductive and that he and others at the negotiating table were committed to focusing on the presented proposals and a path forward. Reluctantly, other negotiators seemed to realize that delaying the conversations had them looking like unwilling participants and the negotiations picked up pace and became more productive, and less antagonistic from that point forward.
In the end, the Committee did successfully complete their review of all eight Issue Papers and heard from, and responded to, proposals being developed by the Financial Responsibility Subcommittee.
Several of the proposals, which seemed to gain Committee support, were developed and provided by various representatives from the institutional community, accreditors, financial aid administrators, and attorneys. However, there are still many, many issues where the Committee is split.
To that end, what remained clear at the conclusion of the second session is that the Department has a significant challenge ahead to take all of the recommendation, proposals, and comments/concerns discussed and attempt to come up with a singular, revised set of proposals that the Committee would be willing to adopt following one final round of negotiations and revisions.
Put another way, the likelihood of the Committee achieving consensus prior to the conclusion of their four final days of negotiations, February 12-15, 2018, is remote at best.
A complete summary of Committee 1, Session 2 can be reviewed on CSPEN’s website.
Late next week, or by no later than Monday, January 29, 2018, CSPEN anticipates that the Committee 2 – Gainful Employment negotiators will receive the Department’s initial draft of the latest set of changes to the GE regulations. As soon as we have these proposals we will share them with the community.
Fiscal 2018 Budget & Appropriations Negotiations
As previously reported, the U.S. House and Senate remain focused on efforts to reach agreement on the federal spending caps for Defense and Non-Defense Domestic spending. These negotiations are important for two reasons.
First, they provide the framework for the House and Senate Appropriations Committees to complete work on the allocation of all federal spending for the fiscal year. Thus, once the budget caps are set, it will enable the Appropriators to move quickly towards final determinations and the allocation of money for the 12 spending bills, final revisions to the previously developed bills, and the introduction of a single FY2018 Omnibus Appropriations bill, including all funding for the current fiscal year (October 1, 2017 – September 30, 2018).
Second, and very important to portions of our community, will be the anticipated inclusion of a provision contained within the Labor, HHS, Education and Related Agencies portion of the Omnibus Appropriations bill extending for an additional 18 months the transitional period for formerly ACICS-accredited institutions, and their new accrediting agencies to have sufficient time to complete the transition to a new recognized accrediting agency.
CSPEN anticipates that the wording of the ACICS-accredited institution transition amendment contained in the current FY18 Senate Labor-HHS Appropriations bill is likely to be modified, placing additional limitations on the policy provision to ensure that only schools moving away from ACICS to another accreditor are preserved.
It is rumored that Democrats are seeking a specific timeframe for institutions that have not already begun the process of seeking alternate accreditation to do so, and are also looking for assurances that these remaining institutions and the accreditors that they seek to pursue will be able to complete the process within the additional 18 month timeframe.
While this is frustrating news for those institutions who have been unable to find a suitable alternative to ACICS, or who have remained focused on the hope that ACICS will be able through either litigation or additional National Advisory Committee review to regain recognized accrediting agency eligibility, thus maintaining their memberships’ FSA eligibility as well. Both the current and prospective language do provide institutions and accrediting agencies that have begun the transition process, but may not be able to complete it by July 1, 2018, the additional time needed to in most cases gain full recognition from their new accrediting agency and preserve their students’ and institutions’ eligibility to participate in the Federal Student Financial Aid programs.
In order for the these important steps to occur, this week, Congress must pass another short-term Continuing Resolution (CR) in order to provide additional time for the completion of these negotiations.
CSPEN anticipates that Congress will pass its fourth CR for this current fiscal year, extending funding at last year’s levels through mid-February and hopefully passage of final legislation – enabling Congress to move on to other important legislation like consideration of H.R. 4508 – The PROSPER Act.
Reauthorization of the Higher Education Act
Speaking of H.R. 4508 – The Promoting Real Opportunity, Success, and Prosperity through Education Reform (PROSPER) Act, CSPEN continues to monitor the efforts of House Committee on Education and the Workforce Committee Chairwoman Virginia Foxx and E&W Committee staff as they prepare for House floor consideration of the PROSPER Act as early as mid-February or March of this year.
CSPEN continues to analyze the House bill and provide the community with information to assist in providing support for provisions which support our students and schools and recommendations regarding provisions included within the legislation we hope can be amended.
Contemporaneous to our work in the House, CSPEN is also continues to monitor the reauthorization efforts of the Senate HELP Committee. Based upon various conversations we shared with many of you previously that we anticipated the announcement of the possibility that three or as many as four more HEA Reauthorization hearings would be held before finalizing their proposals. The first of these hearings entitled, “Reauthorizing the Higher Education Act: Financial Aid Simplification and Transparency” was announced late last week and will take place this Thursday, January 18, 2018 at 10AM ET.
Witnesses presenting at this hearing include:
- Matthew Chingos, director of the Education Policy Program in the Urban Institute
- Joanna Darcus, Massachusetts Legal Assistance Corporation Racial, Justice fellow at the National Consumer Law Center in Boston, Massachusetts
- Susan Dynarski, professor of Public Policy Education and Economics at the University of Michigan in Ann Arbor
- Laura Keane, chief policy officer of UAspire in Philadelphia, Pennsylvania
- Russell Lowery-Hart, president of Amarillo College in Amarillo, Texas
Live streaming of this week’s Senate HELP Committee hearing can be viewed here:
https://www.help.senate.gov/hearings/reauthorizing-the-higher-education-act-financial-aid-simplification-and-transparency
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