Rule2023-20385
Financial Value Transparency and Gainful Employment
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 10, 2023
Effective
July 1, 2024
Issuing agencies
Education Department
Abstract
The Secretary establishes and amends regulations related to gainful employment (GE) to address ongoing concerns about educational programs designed to prepare students for gainful employment in a recognized occupation, but that instead leave them with unaffordable amounts of student loan debt in relation to their earnings, or with no gain in earnings compared to others with no more than a high school education. The Secretary separately seeks to enhance transparency by providing information about financial costs and benefits to students at nearly all academic programs at postsecondary institutions that are eligible to participate in title IV of the Higher Education Act of 1965, as amended (HEA).
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<title>Federal Register, Volume 88 Issue 194 (Tuesday, October 10, 2023)</title>
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[Federal Register Volume 88, Number 194 (Tuesday, October 10, 2023)]
[Rules and Regulations]
[Pages 70004-70193]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-20385]
[[Page 70003]]
Vol. 88
Tuesday,
No. 194
October 10, 2023
Part II
Department of Education
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34 CFR Parts 600 and 668
Financial Value Transparency and Gainful Employment; Final Rule
Federal Register / Vol. 88 , No. 194 / Tuesday, October 10, 2023 /
Rules and Regulations
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DEPARTMENT OF EDUCATION
34 CFR Parts 600 and 668
[Docket ID ED-2023-OPE-0089]
RIN 1840-AD57
Financial Value Transparency and Gainful Employment
AGENCY: Office of Postsecondary Education, Department of Education.
ACTION: Final regulations.
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SUMMARY: The Secretary establishes and amends regulations related to
gainful employment (GE) to address ongoing concerns about educational
programs designed to prepare students for gainful employment in a
recognized occupation, but that instead leave them with unaffordable
amounts of student loan debt in relation to their earnings, or with no
gain in earnings compared to others with no more than a high school
education. The Secretary separately seeks to enhance transparency by
providing information about financial costs and benefits to students at
nearly all academic programs at postsecondary institutions that are
eligible to participate in title IV of the Higher Education Act of
1965, as amended (HEA).
DATES: These regulations are effective July 1, 2024.
FOR FURTHER INFORMATION CONTACT: Joe Massman. Telephone: (202) 453-
7771. Email: <a href="/cdn-cgi/l/email-protection#fcbbb9cec8bc9998d29b938a"><span class="__cf_email__" data-cfemail="084f4d3a3c486d6c266f677e">[email protected]</span></a>.
If you are deaf, hard of hearing, or have a speech disability and
wish to access telecommunications relay services, please dial 7-1-1.
SUPPLEMENTARY INFORMATION:
Executive Summary
Purpose of This Regulatory Action
The Federal Government makes significant annual investments under
title IV of the HEA through programs that provide financial assistance
to help students pay for postsecondary education and training. This
includes both Federal grants and Federal loans, with the largest amount
of such aid flowing through Pell Grants and Direct Loans. These
investments in education amount to well over $100 billion in new Pell
Grants and Direct Loans in total made each year.\1\
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\1\ Note that the dollar figure in the text above refers to the
sum of all Pell Grants and Direct Loans made each year. The cost of
Direct Loans, which is the lion's share of this amount, to the
Federal Government is less than the amount disbursed since borrowers
repay, as expanded on below. This final rule affects a small
fraction of the total amount, as detailed below.
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The Federal Government's commitment to postsecondary education and
training is well-justified. Postsecondary education and training
generate important benefits both to the students pursuing new knowledge
and skills and to the Nation overall. Higher education increases wages
and lowers unemployment risk,\2\ and leads to myriad non-financial
benefits including better health, job satisfaction, and overall
happiness.\3\ In addition, increasing the number of individuals with
postsecondary education creates social benefits, including productivity
spillovers from a better educated and more flexible workforce,\4\
increased civic participation,\5\ improvements in health and well-being
for the next generation,\6\ and innumerable intangible benefits that
elude quantification. In addition, the improvements in productivity and
earnings lead to increases in tax revenues from higher earnings and
lower rates of reliance on social safety net programs. These downstream
increases in net revenue to the Government can be so large that public
investments in higher education, including those that Congress
established in title IV, HEA, more than pay for themselves.\7\
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\2\ Barrow, L. & Malamud, O. (2015). Is College a Worthwhile
Investment? Annual Review of Economics, 7(1), 519-555. Card, D.
(1999). The Causal Effect of Education on Earnings. Handbook of
Labor Economics, 3, 1801-1863.
\3\ Oreopoulos, P. & Salvanes, K.G. (2011). Priceless: The
Nonpecuniary Benefits of Schooling. Journal of Economic
Perspectives, 25(1), 159-184.
\4\ Moretti, E. (2004). Workers' Education, Spillovers, and
Productivity: Evidence from Plant-Level Production Functions.
American Economic Review, 94(3), 656-690.
\5\ Dee, T.S. (2004). Are There Civic Returns to Education?
Journal of Public Economics, 88(9-10), 1697-1720.
\6\ Currie, J. & Moretti, E. (2003). Mother's Education and the
Intergenerational Transmission of Human Capital: Evidence from
College Openings. The Quarterly Journal of Economics, 118(4), 1495-
1532.
\7\ Hendren, N. & Sprung-Keyser, B. (2020). A Unified Welfare
Analysis of Government Policies. The Quarterly Journal of Economics,
135(3), 1209-1318.
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These benefits are not guaranteed, however. Research has
demonstrated that the returns, especially the gains in earnings
students enjoy as a result of their education, vary dramatically across
institutions and among programs within those institutions.\8\ As we
illustrate in the Regulatory Impact Analysis (RIA) of this final rule,
even among the same types of programs--that is, among programs with
similar academic levels and fields of study--both the costs and the
outcomes for students differ widely. Most postsecondary programs
provide benefits to students in the form of higher wages that help them
repay any loans they may have obtained to attend the program. But too
many programs fail to increase graduates' wages, having little or even
negative effects on graduates' earnings.\9\ At the same time, too many
programs charge much higher tuition than similar programs with
comparable outcomes, leading students to borrow much more than they
would have needed had they chosen a more affordable program.
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\8\ Hoxby, C.M. (2019). The Productivity of U.S. Postsecondary
Institutions. In Productivity in Higher Education, Hoxby, C.M. &
Stange, K.M. (eds). University of Chicago Press. Lovenheim, M. &
Smith, J. (2023). Returns to Different Postsecondary Investments:
Institution Type, Academic Programs, and Credentials. In Handbook of
the Economics of Education Volume 6, Hanushek, E., Woessmann, E. &
Machin, S. (eds). New Holland.
\9\ Cellini, S. & Turner, N. (2018). Gainfully Employed?
Assessing the Employment and Earnings of For-Profit College Students
Using Administrative Data. Journal of Human Resources, 54(2).
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While increased borrowing is indicative of higher education costs-
of-attendance, financing the costs of postsecondary education and
training with Federal student loans creates significant risk for
borrowers and the Federal Government (as well as taxpayers). In
particular, if students' earnings after college are low, then they are
likely to face difficulty in repaying their loans and will be more
likely to default. The associated penalties and delays in repayment
make the student loan more costly to repay, and, by damaging the
borrower's credit, may also increase costs of other borrowing
considerably.\10\ From the Federal Government's perspective, if
borrowers earn less, then they are also entitled to repay less of their
loans under Income-Driven Repayment (IDR) plans and can have their
loans forgiven after preset amounts of time in repayment. And if
borrowers default on a loan, they may end up repaying less than they
borrowed depending on the success of various collections tools
available to the Government. As a result, low labor market earnings and
low earnings relative to debt both drive up the costs, to both the
borrower and taxpayers, of
[[Page 70005]]
postsecondary investments financed with student loans.
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\10\ For example, a 2023 Consumer Financial Protection Bureau
analysis suggests that a default on a borrower's credit record could
lower their credit score by about 50 points, which might result in
an additional cost of $1,700 on a typical auto loan due to less
favorable interest terms. Gibbs, Christa (2023). Initial Fresh Start
Program Changes Followed by Increased Credit Scores for Affected
Student Loan Borrowers. Consumer Financial Protection Bureau
(<a href="https://www.consumerfinance.gov/about-us/blog/initial-fresh-start-program-changes-followed-by-increased-credit-scores-for-affected-borrowers/">https://www.consumerfinance.gov/about-us/blog/initial-fresh-start-program-changes-followed-by-increased-credit-scores-for-affected-borrowers/</a>).
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With college tuition consistently rising faster than inflation, and
given the growing necessity of a postsecondary credential to compete in
today's economy, it is critical for students, families, and taxpayers
alike to have accurate and transparent information about the possible
financial consequences of their postsecondary program options.
Providing information on the typical earnings outcomes, borrowing
amounts, costs of attendance, and sources of financial aid--and
providing it directly to prospective students in a salient way at a key
moment in their decision-making process--would help students make more
informed choices. The same information will also allow taxpayers and
college stakeholders to better assess whether public and private
resources are being effectively used. For many students, and for many
stakeholders, these financial considerations would, appropriately, be
just one of many factors used in deciding whether and where to enroll.
But as noted throughout this final rule including the RIA, it is clear
that both prospective students and the population in general consider
these financial factors as among the most important in assessing
postsecondary education performance.
For programs that consistently produce graduates with very low
earnings, or with earnings that are too low to repay the amount the
typical graduate borrows to complete a credential, additional measures
are needed to protect students from financial harm. Making information
available has been shown to improve consequential financial choices
across a variety of settings. But it has also been shown to be a
limited remedy, especially for more vulnerable populations who may
struggle to access the information, or who have less support in
interpreting and acting upon the relevant information.\11\
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\11\ Baker, Dominique J., Cellini, Stephanie Riegg, Scott-
Clayton, Judith & Turner, Lesley J. (2021). Why Information Alone Is
Not Enough to Improve Higher Education Outcomes. The Brookings
Institution (<a href="http://www.brookings.edu/blog/brown-center-chalkboard/2021/12/14/why-information-alone-is-not-enough-to-improve-higher-education-outcomes/">www.brookings.edu/blog/brown-center-chalkboard/2021/12/14/why-information-alone-is-not-enough-to-improve-higher-education-outcomes/</a>). Steffel, Mary, Kramer II, Dennis A., McHugh, Walter &
Ducoff, Nick (2019). Information Disclosure and College Choice. The
Brookings Institution (<a href="http://www.brookings.edu/wp-content/uploads/2020/11/ES-11.23.20-Steffel-et-al-1.pdf">www.brookings.edu/wp-content/uploads/2020/11/ES-11.23.20-Steffel-et-al-1.pdf</a>).
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To address these issues, the Department establishes subparts Q and
S of part 668, and makes supporting amendments to Sec. Sec. 600.10,
600.21, 668.2, 668.13, 668.43, and 668.91.
(1) In subpart Q, we establish a financial value transparency
framework. That framework will increase the quality and availability of
information provided directly to students about the costs, sources of
financial aid, and outcomes of students enrolled in all eligible
programs. In part, the transparency framework establishes measures of
enhanced earnings and affordable debt--more specifically, the earnings
premium (EP measure) that typical program graduates experience relative
to the earnings of typical high school graduates, as well as the debt
service burden (debt-to-earnings ratio or D/E rates measure) for
typical graduates. It further establishes performance benchmarks for
each measure, denoting a threshold level of performance below which the
program may have adverse financial consequences to students. This
information will be made available to all students via a program
information website maintained by the Department and described in
amended Sec. 668.43. For programs that do not meet the performance
benchmarks for the D/E rates measure, prospective students will be
required to acknowledge having viewed these disclosures before entering
into enrollment agreements with an institution. Further, the
Department's program information website will provide the public,
taxpayers, and the Government with relevant information with which they
may act to better safeguard the Federal investment in these programs.
The transparency framework will also provide institutions with
meaningful information that they can use to compare their performance
to other institutions and improve student outcomes in these programs.
(2) In subpart S, we establish an accountability and eligibility
framework for gainful employment programs. This GE program
accountability framework is specific to educational programs that, as a
statutory condition of eligibility to participate in title IV, HEA, are
required to provide training that prepares students for gainful
employment in a recognized occupation or profession (GE programs). GE
programs include nearly all educational programs at for-profit
institutions of higher education, as well as non-degree programs at
public and private nonprofit institutions such as community colleges.
The GE program eligibility framework will use the same earnings premium
and debt-burden measures from the transparency framework to determine
whether a GE program remains eligible for title IV, HEA participation.
The GE eligibility criteria define what it means to prepare students
for gainful employment in a recognized occupation, and they tie program
eligibility to whether GE programs provide education and training to
their title IV, HEA students that lead to earnings beyond those of high
school graduates and sufficient to allow students to repay their
student loans. GE programs that fail the same measure in any two out of
three consecutive years for which the measure is calculated will not be
eligible to participate in title IV, HEA programs.
The Department has previously issued regulations on these issues
three times. We refer to those regulatory actions as the 2011 Prior
Rule (76 FR 34385), the 2014 Prior Rule (79 FR 64889), and the 2019
Prior Rule (84 FR 31392), which rescinded the 2014 Prior Rule. For a
detailed discussion of the history of these regulations, please see the
Background section of the notice of proposed rulemaking that was
published in the Federal Register on May 19, 2023 (88 FR 32300) (NPRM).
This final rule departs from the 2019 Prior Rule and partly reinstates
provisions of the 2014 Prior Rule, but this final rule also departs in
certain respects from the 2014 Prior Rule to improve the regulations in
light of new data and current circumstances, as discussed in the
NPRM.\12\
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\12\ 88 FR 32300, 32306 (May 19, 2023).
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The financial value transparency framework covers all programs that
participate in the title IV, HEA programs, and it will dramatically
enhance the quality of information available to all students so that
they may better assess the financial consequences of their education
choices. As explained in the NPRM and elaborated below, the framework
will improve on the information currently available to students by
generating program-level information on cost of attendance and
available aid for all types of students and by ensuring the information
is delivered to students. The acknowledgment requirements ensure this
information is viewed before students enroll when performance measures
indicate a heightened risk of adverse borrowing outcomes for students.
With respect to GE programs, the Department remains concerned about
the same problems that motivated our 2011 and 2014 Prior Rules. These
included the growth in student loan debt generally, and especially
increased borrowing at private for-profit colleges, increasingly high
rates of default, higher costs, and lawsuits and investigations into
the deceptive practices of many institutions.
[[Page 70006]]
Overall, the amount of outstanding student loan debt is even higher
than it was at the time of the 2014 Prior Rule. Then we cited a total
portfolio of $1,096.5 billion. It is now 49 percent larger--at $1,634
billion outstanding. The number of individuals with outstanding student
loans is also 3.5 million higher.\13\
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\13\ U.S. Department of Education, Federal Student Aid (2023).
Federal Student Aid Portfolio Summary (data set). National Student
Loan Data System (NSLDS) (<a href="https://studentaid.gov/sites/default/files/fsawg/datacenter/library/PortfolioSummary.xls">https://studentaid.gov/sites/default/files/fsawg/datacenter/library/PortfolioSummary.xls</a>).
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The 2011 and 2014 rules were issued during a time of growth at
private for-profit colleges when the Department was concerned about the
effects of such growth. While the sector is not currently growing at
the rates it did at that time, its 12-month full-time-equivalent
enrollment in 2020-21 was above its levels in 2017-18.\14\ During those
years, enrollment in private for-profit colleges grew 5 percent even as
public and private nonprofit institutions saw a 7 percent decline.
Similarly, the share of title IV, HEA funds going to private for-profit
colleges in 2020-21 was at the same level as in 2016-17.\15\
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\14\ See U.S. Department of Education, National Center for
Education Statistics (2021). Table 8. Twelve-month full-time-
equivalent enrollment at Title IV institutions, by student level,
level and control of institution: United States, 2020-21. IPEDS Data
Explorer (<a href="https://nces.ed.gov/ipeds/Search?query=&query2=&resultType=all&page=1&sortBy=date_desc&overlayTableId=32468">https://nces.ed.gov/ipeds/Search?query=&query2=&resultType=all&page=1&sortBy=date_desc&overlayTableId=32468</a>). U.S. Department of Education, National Center for
Education Statistics (2018). Table 8. Twelve-month full-time-
equivalent enrollment at Title IV institutions, by student level,
level and control of institution: United States, 2017-18. IPEDS Data
Explorer (<a href="https://nces.ed.gov/ipeds/Search?query=&query2=&resultType=all&page=1&sortBy=date_desc&overlayTableId=25212">https://nces.ed.gov/ipeds/Search?query=&query2=&resultType=all&page=1&sortBy=date_desc&overlayTableId=25212</a>).
\15\ U.S. Department of Education, Federal Student Aid (2023).
2022-2023 Grant and Loan Volume by School Type (data set). FSA Data
Center (<a href="https://studentaid.gov/sites/default/files/fsawg/datacenter/library/SummarybySchoolType.xls">https://studentaid.gov/sites/default/files/fsawg/datacenter/library/SummarybySchoolType.xls</a>).
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Loan usage at private for-profit colleges also remains high. In the
2014 Prior Rule we noted concerns that the borrowing rate in 2011-12
among less-than-two-year institutions was 60 percent at private for-
profit institutions versus 10 percent at public institutions.\16\ Data
from 2019-20 show that 63 percent of students in less-than-two-year
private for-profit institutions took out loans compared to 18 percent
of those at public colleges, though the estimate for public colleges
has a high standard error.\17\ In fact, the borrowing rate at two-year
and less-than-two-year private for-profit colleges in 2019-20 was
higher than in 2015-2016. And among two-year for-profit colleges it
even exceeds the rates in 2011-12.\18\
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\16\ U.S. Department of Education (2014). Program Integrity:
Gainful Employment. 79 FR 65033, October 31, 2014. Federal Register,
34 CFR parts 600 and 668 (Docket ID ED-2014-OPE-0039) (<a href="https://www.federalregister.gov/d/2014-25594/p-2324">https://www.federalregister.gov/d/2014-25594/p-2324</a>).
\17\ Cameron, M., Johnson, R., Lacy, T.A., Wu, J., Siegel, P.,
Holley, J., Wine, J. & RTI International (2023). Table A-1. Selected
financial aid receipt: Percentage of undergraduates receiving
selected types of financial aid. In 2019-20 National Postsecondary
Student Aid Study (NPSAS:20) First Look at Student Financial Aid
Estimates for 2019-20 (NCES 2023-466). U.S. Department of Education
(<a href="https://nces.ed.gov/pubs2023/2023466.pdf">https://nces.ed.gov/pubs2023/2023466.pdf</a>).
\18\ Compare the previous citation with Radwin, D., Wine, J.,
Siegel, P., Bryan, M. & RTI International (2013). Table 1.
Percentage of undergraduates receiving selected types of financial
aid, by type of institution, attendance pattern, dependency status,
and income level: 2011-12. In 2011-12 National Postsecondary Student
Aid Study (NPSAS:12) Student Financial Aid Estimates for 2011-12
(NCES 2013-165). U.S. Department of Education (<a href="https://nces.ed.gov/pubs2013/2013165.pdf">https://nces.ed.gov/pubs2013/2013165.pdf</a>). Radwin, D., Conzelmann, J. G., Nunnery, A.,
Lacy, T. A., Wu, J., Lew, S., Wine, J., Siegel, P. & RTI
International (2018). Table 1. Percentage of undergraduates
receiving selected types of financial aid, by control and level of
institution, attendance pattern, dependency status, and income
level: 2015-16. In 2015-16 National Postsecondary Student Aid Study
(NPSAS:16) Student Financial Aid Estimates for 2015-16 First Look
(NCES 2018466). National Center for Education Statistics (<a href="https://nces.ed.gov/pubs2018/2018466.pdf">https://nces.ed.gov/pubs2018/2018466.pdf</a>).
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Issues with default rates also did not abate between 2014 and the
national pause on student loan payments and interest in 2020 due to the
COVID-19 national emergency. From 2015 to 2019 there were still more
than 1 million new Direct Loan defaults a year. And the number of new
Direct Loan defaults in the 2019 fiscal year was higher than in
2015.\19\ The official cohort default rates did see slight declines
from fiscal year 2012 to fiscal year 2017 (the last cohort before the
pause would affect results). But the decline in the overall rate was
nearly double what it was at private for-profit colleges (a reduction
of 2.1 percentage points versus 1.1 percentage points).\20\ And this is
despite the closure of large for-profit colleges with poor track
records, such as ITT Technical Institute and Corinthian Colleges.
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\19\ U.S. Department of Education (Sept. 14, 2023). Direct Loans
Entering Default. National Student Loan Data System (NSLDS) (<a href="https://studentaid.gov/sites/default/files/DLEnteringDefaults.xls">https://studentaid.gov/sites/default/files/DLEnteringDefaults.xls</a>).
\20\ Federal Student Aid Office, U.S. Department of Education
(2016). National Student Loan Default Rates from its 2016 Official
FY2013 Cohort Default Rate Briefing (<a href="https://fsapartners.ed.gov/sites/default/files/attachments/eannouncements/2016OfficialFY2013CDRBriefing.pdf">https://fsapartners.ed.gov/sites/default/files/attachments/eannouncements/2016OfficialFY2013CDRBriefing.pdf</a>). Federal Student Aid Office, U.S.
Department of Education (2020). FY 2017 Official National Cohort
Default Rates with Prior Year Comparison and Total Dollars as of the
Date of Default and Repayment. In 2020 Cohort Default Rate National
Briefing for FY2017 (<a href="https://fsapartners.ed.gov/sites/default/files/attachments/2020-09/093020CDRNationalBriefingFY17Attach_0.pdf">https://fsapartners.ed.gov/sites/default/files/attachments/2020-09/093020CDRNationalBriefingFY17Attach_0.pdf</a>).
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Regarding lawsuits and investigations, the Department notes that
these actions still continue today. Just last year the California
Department of Justice won its case against Ashford University, and the
Secretary has concluded substantial misrepresentations brought to light
in that case continued until 2020.\21\ The U.S. Department of Justice
has also continued to settle cases involving for-profit colleges.\22\
Other State attorneys general or city officials have also reached
settlements with for-profit institutions over allegations about the
same type of behavior identified by the Department in the 2014 rule,
though these settlements did not come with an admission of
wrongdoing.\23\
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\21\ California Department of Justice, Office of the Attorney
General (Mar. 7, 2022). Attorney General Bonta: Ashford University
Must Pay $22 Million in Penalties for Defrauding California Students
(<a href="https://oag.ca.gov/news/press-releases/attorney-general-bonta-ashford-university-must-pay-22-million-penalties">https://oag.ca.gov/news/press-releases/attorney-general-bonta-ashford-university-must-pay-22-million-penalties</a>). U.S. Department
of Education (Aug. 30, 2023). Biden-Harris Administration Approves
$72 Million in Borrower Defense Discharges for over 2,300 Borrowers
Who Attended Ashford University (https://<a href="http://www.ed.gov/news/press-releases/biden-harris-administration-approves-72-million-borrower-defense-discharges-over-2300-borrowers-who-attended-ashford-university">www.ed.gov/news/press-releases/biden-harris-administration-approves-72-million-borrower-defense-discharges-over-2300-borrowers-who-attended-ashford-university</a>).
\22\ U.S. Attorney's Office, Middle District of Louisiana (June
23, 2017). School Owner and CEO Convicted of Federal Financial Aid
Fraud Offenses and Money Laundering. U.S. Department of Justice
(<a href="https://www.justice.gov/usao-mdla/pr/school-owner-and-ceo-convicted-federal-financial-aid-fraud-offenses-and-money">https://www.justice.gov/usao-mdla/pr/school-owner-and-ceo-convicted-federal-financial-aid-fraud-offenses-and-money</a>). U.S.
Attorney's Office, District of Connecticut (May 27, 2022). School
and Owner Pay Over $1 Million to Resolve Allegations of Attempts to
Improperly Influence the School's Student Loan Default Rate. U.S.
Department of Justice (<a href="https://www.justice.gov/usao-ct/pr/school-and-owner-pay-over-1-million-resolve-allegations-attempts-improperly-influence">https://www.justice.gov/usao-ct/pr/school-and-owner-pay-over-1-million-resolve-allegations-attempts-improperly-influence</a>).
\23\ Office of Attorney General Maura Healey (Aug. 8, 2018).
American Military University Pays $270,000 for Alleged Failure to
Disclose Job Prospects, High-Pressure Enrollment Tactics. <a href="http://Mass.gov">Mass.gov</a>
(<a href="https://www.mass.gov/news/american-military-university-pays-270000-for-alleged-failure-to-disclose-job-prospects-high-pressure-enrollment-tactics">https://www.mass.gov/news/american-military-university-pays-270000-for-alleged-failure-to-disclose-job-prospects-high-pressure-enrollment-tactics</a>). Department of Consumer and Worker Protection
(Oct. 3, 2022). Department of Consumer and Worker Protection Settles
With ASA College for Deceptive Advertising Targeting Immigrants and
Other Vulnerable New Yorkers. <a href="http://NYC.gov">NYC.gov</a> (<a href="https://www.nyc.gov/site/dca/media/pr100322-DCWP-Settles-With-ASA-College-for-Deceptive-Advertising.page">https://www.nyc.gov/site/dca/media/pr100322-DCWP-Settles-With-ASA-College-for-Deceptive-Advertising.page</a>).
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According to the Department's data and analyses, which are
presented in the RIA of this final rule,\24\ GE programs account for a
disproportionate share of students who complete programs with very low
earnings and unmanageable debt. The expansion of IDR plans for Federal
student loans, which has risen since the 2014 Prior Rule was released,
partially shields borrowers from these risks. But such after-the-fact
protections do not address underlying program failures to prepare
students for gainful employment in the first place, and they shift the
risks of nonpayment of loans from students with poor labor market
outcomes and high debt to taxpayers.
[[Page 70007]]
The reasons for the departure from the 2019 rescission are discussed in
detail in the NPRM of the rule, with detail on particular points
discussed further below.
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\24\ See Tables 4.4, 4.5, 4.8, and 4.9 below.
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In light of the HEA differentiation between career training (GE)
programs and other eligible programs, through statutory language that
defines title IV-eligible career training programs as those that
prepare students for gainful employment, the Department has different
responsibilities with respect to GE programs and different tools
available in administering the title IV, HEA programs. For these
programs, where labor market outcomes are central to their mission, the
Department establishes a clear and administrable GE program
accountability framework based on the EP and D/E measures, which the
Department will use to evaluate what it means to prepare students for
gainful employment in a recognized occupation and whether a GE program
is eligible to participate in title IV, HEA.
While the financial value transparency framework and the GE program
accountability framework are both designed to improve student financial
outcomes, they differ in scope and approach, derive from the
Department's exercise of different regulatory authorities. The two
frameworks are intended to function independently, and their respective
components are intended to be severable. Elsewhere we discuss the
complementary nature of the two frameworks as well as their
severability,\25\ and we address the Department's authority to take
action in the next section. In subsequent sections we explain our
reasoning and the evidence relevant to the positions that we adopt, and
we identify a number of constructive public comments that, upon
reflection, have convinced the Department to modify certain proposals
made in the NPRM. But our core conclusions remain the same. Considering
the promise of postsecondary education and training in its many forms
alongside the Federal Government's investment therein and all
applicable law, the Department adopts this final rule.
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\25\ See the NPRM, 88 FR 32300, 32341 (May 19, 2023), for a
detailed discussion of how these regulations are intended to be
severable.
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Authority for This Regulatory Action
To address the need for regulatory action, the Department amends
Sec. Sec. 600.10, 600.21, 668.2, 668.13, 668.43, and 668.91, and
establishes subparts Q and S of part 668.
The Department's authority to establish the financial value
transparency framework and the GE program accountability framework is
derived primarily from: first, the Secretary's generally applicable
rulemaking authority, which includes but is not limited to provisions
regarding data collection and dissemination; second, authorizations and
directives within title IV of the HEA regarding the collection and
dissemination of potentially useful information about higher education
programs, as well as provisions regarding institutional eligibility to
benefit from title IV; and third, the further provisions within title
IV, HEA that address the eligibility of GE programs.
As for general and crosscutting rulemaking authority, section 410
of the General Education Provisions Act (GEPA) grants the Secretary
authority to make, promulgate, issue, rescind, and amend rules and
regulations governing the manner of operation of, and governing the
applicable programs administered by, the Department.\26\ This authority
includes the power to promulgate regulations relating to programs that
we administer, such as the title IV, HEA programs that provide Federal
loans, grants, and other aid to students. Moreover, section 414 of the
Department of Education Organization Act (DEOA) authorizes the
Secretary to prescribe those rules and regulations that the Secretary
determines necessary or appropriate to administer and manage the
functions of the Secretary or the Department.\27\
---------------------------------------------------------------------------
\26\ 20 U.S.C. 1221e-3.
\27\ 20 U.S.C. 3474.
---------------------------------------------------------------------------
Section 431 of GEPA grants the Secretary additional authority to
require institutions to make data available to the public about the
performance of their programs and about students enrolled in those
programs. That section directs the Secretary to collect data and
information on applicable programs for the purpose of obtaining
objective measurements of the effectiveness of such programs in
achieving their intended purposes, and also to inform the public about
federally supported education programs.\28\ This provision lends
additional support to the reporting requirements and the Department's
program information website, which will enable the Department to
collect data and information for the purpose of developing objective
measures of program performance, not only for the Department's use in
evaluating programs but also to inform students, their families,
institutions, and others about those federally supported programs.
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\28\ 20 U.S.C. 1231a(2)-(3). ``Applicable program'' means any
program for which the Secretary or the Department has administrative
responsibility as provided by law or by delegation of authority
pursuant to law. 20 U.S.C. 1221(c)(1).
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As for provisions within title IV, HEA, several of them address the
effective delivery of information about postsecondary education
programs. For example, section 131 of the Higher Education Act of 1965,
as amended (HEA), provides that the Department's websites should
include information regarding higher education programs, including
college planning and student financial aid,\29\ the cost of higher
education in general, and the cost of attendance with respect to all
institutions of higher education participating in title IV, HEA
programs.\30\ Those authorizations and directives expand on more
traditional methods of delivering important information to students,
prospective students, and others, including within or alongside
application forms or promissory notes for which acknowledgments by
signatories are typical and longstanding.\31\ Educational institutions
have been distributing information to students at the direction of the
Department and in accord with the applicable statutes for decades.\32\
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\29\ See, for example, 20 U.S.C. 1015(e).
\30\ 20 U.S.C. 1015(a)(3), (b), (c)(5), (e), (h). See also
section 111 of the Higher Education Opportunity Act, 20 U.S.C.
1015a, which authorizes the College Navigator website and successor
websites.
\31\ See, for example, 20 U.S.C. 1082(m), regarding common
application forms and promissory notes or master promissory notes.
See also 34 CFR 685.304(a)(3), regarding Direct Loan counseling and
acknowledgments.
\32\ A compilation of the current and previous editions of the
Federal Student Aid Handbook, which includes detailed discussion of
consumer information and school reporting and notification
requirements, is posted at <a href="https://fsapartners.ed.gov/knowledge-center/fsa-handbook">https://fsapartners.ed.gov/knowledge-center/fsa-handbook</a>.
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The GE program accountability framework also is supported by the
Department's statutory responsibilities to observe eligibility limits
in the HEA. Section 498 of the HEA requires institutions to establish
eligibility to provide title IV, HEA funds to their students. Eligible
institutions must also meet program eligibility requirements for
students in those programs to receive title IV, HEA assistance.
One type of program for which certain categories of institutions
must establish program-level eligibility is, in the words of section
101 and section 102 of the HEA, a ``program of training to prepare
students for gainful employment in a
[[Page 70008]]
recognized occupation.'' \33\ Section 481 of the HEA articulates this
same requirement by defining, in part, an ``eligible program'' as a
``program of training to prepare students for gainful employment in a
recognized profession.'' \34\ The HEA does not more specifically define
``program of training to prepare,'' ``gainful employment,''
``recognized occupation,'' or ``recognized profession'' for purposes of
determining the eligibility of GE programs for participation in title
IV, HEA. The Secretary and the Department have a legal duty to
interpret, implement, and apply those terms in order to observe the
statutory eligibility limits in the HEA. In the section-by-section
discussion in the NPRM, we explained further the Department's
interpretation of the GE statutory provisions and how those provisions
should be implemented and applied.
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\33\ 20 U.S.C. 1001(b)(1); 20 U.S.C. 1002(b)(1)(A)(i),
(c)(1)(A).
\34\ 20 U.S.C. 1088(b)(1)(A)(i).
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The statutory eligibility criteria for GE programs are one part of
the foundation of authority for warnings from institutions to
prospective and enrolled GE students. In the GE context, the Department
has not only a statutory basis for pursuing the effective dissemination
of information to students about a range of GE program attributes and
performance metrics,\35\ but also the authority to use certain metrics
to determine that an institution's program is not eligible to benefit,
as a GE program, from title IV, HEA assistance. When an institution's
program is at risk of losing eligibility based on a given metric, the
Department may then require the institution that operates the at-risk
program to alert prospective and enrolled students that they may not be
able to receive title IV, HEA assistance for enrollment in the program
in future years. Without a direct communication from the institution to
prospective and enrolled students, the students may lack information
critical to their program enrollment decisions contrary to the text,
purpose, and traditional understandings of the relevant statutes as
described above.
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\35\ See Ass'n of Priv. Sector Colleges & Universities v.
Duncan, 110 F. Supp. 3d 176, 198-200 (D.D.C. 2015) (recognizing
statutory authority to require institutions to disclose certain
information about GE programs to prospective and enrolled GE
students), aff'd, 640 F. App'x 5, 6 (D.C. Cir. 2016) (per curiam)
(unpublished) (indicating that the plaintiff's challenge to the GE
disclosure provisions was abandoned on appeal).
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The above authorities collectively empower the Secretary to
promulgate regulations to (1) require institutions to report
information about their programs to the Secretary; (2) require
prospective students, with respect to certificate programs and graduate
degree programs that do not meet certain financial value measures
established by the Department, to acknowledge having viewed the
information on the Department's program information website before
entering into an enrollment agreement; (3) establish measures to
determine the eligibility of GE programs for participation in title IV,
HEA; and (4) require institutions to provide warnings to students and
prospective students with respect to GE programs that may lose their
title IV, HEA eligibility in the next year, and require the students to
acknowledge having viewed the warning through the Department's program
information website. We provide additional detail on these provisions
in the discussions below.
Summary of the Major Provisions of This Regulatory Action
As discussed under ``Purpose of This Regulatory Action,'' these
regulations establish a financial value transparency framework and a GE
program accountability framework.
Through this regulatory action, the Department establishes the
following:
(1) In subpart Q, a financial value transparency framework that
will increase the quality and availability of information provided
directly to students about the costs, sources of financial aid, and
outcomes of students enrolled in all title IV, HEA eligible programs.
As part of this framework, we establish a measure of the earnings
premium that typical program graduates experience relative to the
earnings of typical high school graduates. As part of this framework,
we also establish a mechanism for measuring the debt service burden for
typical graduates. Further, we establish performance benchmarks for
each measure, denoting a threshold level of performance below which
students' enrollment in the program may have adverse financial
consequences. This information will be made available via a program
information website maintained by the Department, and, for certificate
programs and graduate degree programs with poor outcomes under the
debt-burden measures, prospective students will be required to
acknowledge viewing this information before entering into enrollment
agreements with an institution. Further, through the Department's
program information website, we will provide the public, taxpayers, and
the Government with relevant information which they can use to better
safeguard the Federal investment in these programs. Finally, the
financial value transparency framework will provide institutions with
meaningful information that they can use to compare the performance of
the programs to that of other institutions and improve student outcomes
in these programs. For a detailed discussion of the financial
transparency framework, see the ``Financial Value Transparency
Framework'' section of the NPRM.\36\
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\36\ 88 FR 32300, 32325 (May 19, 2023).
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(2) In subpart S, we create an accountability framework for career
training programs (also referred to as gainful employment programs or
GE programs) that uses the same earnings premium and debt-burden
measures as subpart Q to determine whether a GE program remains
eligible for participation in title IV, HEA. The GE eligibility
criteria are used to identify those programs that prepare students for
gainful employment in a recognized occupation, as that language is used
in the HEA, and they tie program eligibility to whether GE programs
provide education and training to their title IV, HEA students that
lead to earnings beyond those of high school graduates and sufficient
to allow students to repay their student loans. GE programs that fail
the same measure in any two out of three consecutive years for which
the measure is calculated will lose eligibility for participation in
title IV, HEA programs. Relatedly, for GE programs that may lose their
title IV, HEA eligibility in the next year, institutions must provide
warnings to those programs' enrolled and prospective students, and
those students must acknowledge having viewed the warning through the
Department's program information website before certain specified
events occur, including the signing of an enrollment agreement or the
disbursement of title IV funds. For a detailed discussion of the GE
program accountability framework, see the ``Gainful Employment
Criteria'' section of the NPRM.\37\
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\37\ 88 FR 32300, 32343 (May 19, 2023).
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Specifically, the final regulations adopt the following changes.
<bullet> Amend Sec. 600.10 to require an institution seeking to
establish the eligibility of a GE program to add the program to its
application.
<bullet> Amend Sec. 600.21 to require an institution to notify the
Secretary within 10 days of any update to information included in the
GE program's certification.
<bullet> Amend Sec. 668.2 to define certain terminology used in
subparts Q and S, including ``annual debt-to-earnings rate,''
``classification of instructional
[[Page 70009]]
programs (CIP) code,'' ``cohort period,'' ``credential level,'' ``debt-
to-earnings rates (D/E rates),'' ``discretionary debt-to-earnings
rates,'' ``earnings premium,'' ``earnings threshold,'' ``eligible non-
GE program,'' ``Federal agency with earnings data,'' ``gainful
employment program (GE program),'' ``institutional grants and
scholarships,'' ``length of the program,'' ``poverty guideline,''
``prospective student,'' ``student,'' and ``substantially similar
program.''
<bullet> Amend Sec. 668.43 to establish a Department website with
program-level financial information, and to require institutions to
inform a prospective student how to access that website before the
student enrolls, registers, or makes a financial commitment to the
institution.
<bullet> Amend Sec. 668.91 to provide that a hearing official must
terminate the eligibility of a GE program that fails to meet the GE
program accountability metrics established in this rule, unless the
hearing official concludes that the Secretary erred in the calculation.
<bullet> Add Sec. 668.401 to identify the scope and purpose of the
newly established financial value transparency regulations in subpart
Q.
<bullet> Add Sec. 668.402 to provide a framework for the Secretary
to determine whether a program leads to high debt burden or low
earnings, including establishing annual and discretionary D/E rate
metrics and associated outcomes, and establishing an earnings premium
metric and associated outcomes.
<bullet> Add Sec. 668.403 to establish a methodology to calculate
annual and discretionary D/E rates, including parameters to determine
annual loan payment, annual earnings, loan debt, and assessed charges,
as well as to provide exclusions, and specify when D/E rates will not
be calculated.
<bullet> Add a new Sec. 668.404 to establish a methodology to
calculate a program's earnings premium measure, including parameters to
determine median annual earnings, as well as to provide exclusions, and
specify when the earnings threshold measure will not be calculated.
<bullet> Add Sec. 668.405 to establish a process by which the
Secretary will obtain administrative and earnings data to issue D/E
rates and the earnings premium measure.
<bullet> Add Sec. 668.406 to require the Secretary to notify
institutions of their financial value transparency metrics and
outcomes.
<bullet> Add Sec. 668.407 to require current and prospective
students to acknowledge having seen the information on the website
maintained by the Secretary if a program has failed the D/E rates
measure, to specify the content and delivery parameters of such
acknowledgments, and to require that students must provide the
acknowledgment before entering an enrollment agreement with an
institution.
<bullet> Add Sec. 668.408 to establish institutional reporting
requirements for students who enroll in, complete, or withdraw from a
program and to define the timeframe for institutions to report this
information.
<bullet> Add Sec. 668.409 to establish severability protections
ensuring that if any provision in subpart Q is held invalid, the
remaining provisions of that subpart and other subparts would continue
to apply.
<bullet> Add Sec. 668.601 to identify the scope and purpose of
newly established GE regulations under subpart S.
<bullet> Add Sec. 668.602 to establish criteria for the Secretary
to determine whether a GE program prepares students for gainful
employment in a recognized occupation.
<bullet> Add Sec. 668.603 to define the conditions under which a
failing GE program would lose title IV, HEA eligibility, to provide the
opportunity for an institution to appeal a loss of eligibility solely
on the basis of a miscalculated D/E rate or earnings premium, and to
establish a period of ineligibility for failing GE programs that lose
eligibility or voluntarily discontinue eligibility.
<bullet> Add Sec. 668.604 to require institutions to provide the
Department with transitional certifications, as well as to certify,
when seeking recertification or the approval of a new or modified GE
program, that each eligible GE program offered by the institution is
included in the institution's recognized accreditation or, if the
institution is a public postsecondary vocational institution, that the
program is approved by a recognized State agency.
<bullet> Add Sec. 668.605 to require warnings to current and
prospective students if a GE program is at risk of a loss of title IV,
HEA eligibility, to specify the content and delivery requirements for
such warnings, and to provide that students must acknowledge having
seen the warning before the institution may disburse any title IV, HEA
funds.
<bullet> Add Sec. 668.606 to establish severability protections
ensuring that if any GE provision under subpart S is held invalid, the
remaining provisions of that subpart and of other subparts would
continue to apply.
Summary of the Costs and Benefits
The Department estimates that the final regulations will generate
benefits to students, postsecondary institutions, and the Federal
Government that exceed the costs. The Department also estimates
substantial transfers, primarily in the form of title IV, HEA aid
shifting between students, postsecondary institutions, and the Federal
Government, generating a net budget savings for the Federal Government.
Net benefits are created primarily by shifting students from low-
financial-value to high-financial-value programs or, in some cases,
away from low-financial-value postsecondary programs to non-enrollment.
These shifts would be due to improved and standardized market
information about all postsecondary programs that would facilitate
better decision making by current and prospective students and their
families; the public, taxpayers, and the Government; and institutions.
Furthermore, the GE program accountability framework will improve the
quality of student options by directly eliminating the ability of low-
financial-value GE programs to receive title IV, HEA funds. This
enrollment shift and improvement in program quality will result in
higher earnings for students, which will generate additional tax
revenue for Federal, State, and local governments. Students will also
benefit from lower accumulated debt and lower risk of default.
The primary costs of the final regulations related to the financial
value transparency and GE accountability requirements are the
additional reporting required by institutions and the time for students
to acknowledge having seen the program information website. The final
regulations may also result in some students at failing programs
deciding to end their educational pursuits, even if they would benefit
from re-enrollment. See ``Discussion of Costs, Benefits, and
Transfers'' in the RIA in this document for a more complete discussion
of the costs and benefits of the regulations.
The NPRM and Public Comment
The NPRM included proposed regulations on five topics--Financial
Value Transparency and Gainful Employment, Financial Responsibility,
Administrative Capability, Certification Procedures, and Ability to
Benefit. These final regulations contain only provisions on Financial
Value Transparency and GE. We will publish another final rule with the
remaining four topics at a later date. The later rule will include
summaries and responses
[[Page 70010]]
to comments that made some references to the GE program accountability
framework but are primarily concerned with the financial
responsibility, administrative capability, or certification procedures
sections.
In response to our invitation in the NPRM, 7,583 parties submitted
comments on the proposed regulations. While the majority of respondents
commented on the provisions we address in this final rule, the number
includes all who commented on any of the five topics addressed in the
NPRM.
In the NPRM, we discussed the background of the regulations,\38\
the relevant data available,\39\ and the key regulatory changes that
the Department was proposing,\40\ including the changes from the 2019
Prior Rule currently in effect, and the differences between the NPRM's
proposal and the now-rescinded 2014 Prior Rule. Terms used but not
defined in this document have the meanings set forth in the NPRM. The
final regulations contain a number of changes from the NPRM. We fully
explain the changes in the Analysis of Comments and Changes section of
the preamble that follows.
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\38\ 88 FR 32300, 32306 (May 19, 2023).
\39\ 88 FR 32300, 32392 (May 19, 2023).
\40\ 88 FR 32300, 32317 (May 19, 2023).
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We discuss substantive issues under the sections of the proposed
regulations to which they pertain. Generally, we do not address
technical or other minor changes or recommendations that are out of the
scope of this regulatory action or that would require statutory
changes.
Analysis of Public Comments and Changes: Analysis of the comments
and of any changes in the regulations since publication of the NPRM
follows.
General
Rulemaking Process
Comments: Several commenters asked the Department to extend the
public comment period an additional 30 days. These commenters contended
that, given the length of the NPRM, they needed more time to review it
if they were to provide informed comment. The commenters also observed
that Executive Orders 12866 and 13563 cite 60 days as the recommended
length for public comment.
Discussion: The Department believes the public comment period was
sufficient for commenters to review and provide meaningful feedback on
the NPRM. We note that the public comment period for the 2019 Prior
Rule also was 30 days.\41\ In response to the NPRM we received comments
from more than 7,500 individuals and entities, including many detailed
and lengthy comments. Those comments have helped the Department
identify many areas for improvements and clarification that result in
an improved final rule. Moreover, the negotiated rulemaking process,
including multiple negotiating sessions, provided a significant
additional opportunity for public engagement and feedback that exceeds
what is typically available in notice-and-comment rulemaking outside
the HEA's statutory framework. The Department began the rulemaking
process by inviting public input through a series of public hearings in
June 2021. We received more than 5,300 public comments as part of the
public hearing process. After the hearings, the Department sought non-
Federal negotiators for the negotiated rulemaking committee who
represented constituencies that would be affected by our rules. As part
of these non-Federal negotiators' work on the rulemaking committee, the
Department asked that they reach out to the broader constituencies for
feedback during the negotiation process. During each of the three
negotiated rulemaking sessions, we provided opportunities for the
public to comment, including in response to draft regulatory text,
which was available prior to the second and third sessions. The
Department and the non-Federal negotiators considered those comments to
inform further discussion at the negotiating sessions, and we used the
information when preparing our proposed rule. The Executive orders
recommend an appropriate period for public comment, but they do not
require more than 30 days, nor do their recommendations account for the
HEA's negotiated rulemaking requirements, which the Department followed
here as described.
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\41\ See 83 FR 40167, 40168 (Aug. 14, 2018).
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Changes: None.
Comments: Several commenters asserted that only two days of the
negotiated rulemaking process were specifically devoted to a discussion
of the proposed GE regulations, which they contended was not adequate
time.
Discussion: The Department disagrees. There were multiple
opportunities throughout the rulemaking process for people to submit
comments on the proposed GE regulations. We held public hearings to
obtain initial public input. We also included daily public comment
periods during three weeks of negotiation sessions and devoted two days
to discuss the topic exclusively. Non-Federal negotiators solicited
feedback from their constituents on our proposals during and between
negotiation sessions. Finally, we provided the public with a 30-day
period to comment on the NPRM.
Changes: None.
Comments: A few commenters believed that the Department is rushing
the implementation of the GE regulations. These commenters argued that
programs need more time to comply with these new rules.
Discussion: The Department disagrees with the commenters who
believe that there is not adequate time to comply with the new GE
regulations. The Department gave notice of its intent to regulate in
the Spring 2021 Unified Agenda. We conducted hearings to obtain public
input and held negotiated rulemaking sessions in the Spring of 2022
where the Department's distributed plans for the rule and provided
detailed data on the projected outcomes of GE programs. Accordingly, we
believe there has been, and will continue to be prior to the effective
date, ample time for institutions to take the necessary steps to be
able to meet their reporting obligations under the final rule. In
addition, we note that the lengthy period beginning with the Spring
2021 Unified Agenda, taken together with the transition period built
into the GE program accountability framework, will further allow
institutions to take steps to improve their programs' outcomes after
the regulation takes effect. Adding more time would further delay the
effective date of the GE regulations and would unnecessarily increase
the likelihood that students would continue to invest their time and
money in postsecondary programs that do not meet the minimum standards
of these regulations. The Department believes that we must implement
these rules as quickly as possible to protect students and taxpayers,
and that there is enough time for programs to comply.
Changes: None.
Statutory Authority; Other General Legal Support
Comments: Some commenters acknowledged that the Department has
authority to implement the financial value transparency framework.
Discussion: We agree with these commenters that the Department has
well established authority to implement the financial value
transparency framework. As discussed in more detail under ``Authority
for this Regulatory Action'' in this document, this framework is
supported in principal part by the Secretary's generally applicable
rulemaking authority, which includes provisions regarding data
collection and dissemination, and which applies in part to title IV of
the
[[Page 70011]]
HEA, as well as authorizations and directives within title IV of the
HEA regarding the collection and dissemination of potentially useful
information about higher education programs.
Comments: Several commenters asserted that the proposed GE program
accountability framework exceeds the Department's statutory authority.
Some commenters argued that the description of GE programs in the HEA--
that those programs must prepare students for gainful employment in
recognized occupations--does not provide clear congressional intent to
support the eligibility requirements in the proposed regulations. Some
of these commenters contended that the HEA does not require the
Department to establish a mathematical framework to determine when a
program adequately prepares students for gainful employment in a
recognized occupation, nor provide any explicit congressional
authorization to do so. Similarly, some commenters asserted that the GE
provisions in the HEA are too vague and ambiguous to support an
eligibility framework based on student outcomes. Some commenters said
the litigation addressing prior GE rules never identified clear
congressional authorization for the Department to establish an
eligibility framework for GE programs. Commenters also asserted that
the variations in the prior and proposed GE regulations constitute
further proof that there is no clear congressional authorization tied
to the proposed GE regulations. In addition, some commenters viewed the
proposed GE program eligibility framework in its use of two outcome
measures as a significant expansion of the prior GE regulations and
argued that such a framework could only be supported with clear
authorization from Congress.
Discussion: As discussed in detail in the NPRM \42\ and summarized
in this document under ``Authority for this Regulatory Action,'' the GE
program accountability framework is supported by the Department's
statutory responsibilities to enforce eligibility limits in title IV of
the HEA as well as the Department's generally applicable rulemaking
authority.
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\42\ 88 FR 32300, 32321-22 (May 19, 2023).
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As for the latter, Federal statutes grant the Secretary general
crosscutting rulemaking authority that includes and extends beyond
title IV of the HEA. Section 410 of the General Education Provisions
Act (GEPA) provides the Secretary with authority to make, promulgate,
issue, rescind, and amend rules and regulations governing the manner of
operations of, and governing the applicable programs administered by,
the Department.\43\ This authority includes the power to promulgate
regulations relating to programs that we administer, such as the title
IV, HEA programs that provide Federal loans, grants, and other aid to
students. Furthermore, section 414 of the DEOA authorizes the Secretary
to prescribe such rules and regulations as the Secretary determines
necessary or appropriate to administer and manage the functions of the
Secretary or the Department.\44\ These provisions, together with the
provisions in the HEA regarding GE programs, authorize the Department
to promulgate regulations that establish measures to determine the
eligibility of GE programs for title IV, HEA program funds; require
institutions to report information about GE programs to the Secretary;
require institutions to provide information about GE programs to
students, prospective students, and others; and establish certification
requirements regarding an institution's GE programs.
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\43\ 20 U.S.C. 1221e-3.
\44\ 20 U.S.C. 3474.
---------------------------------------------------------------------------
As for title IV of the HEA and its eligibility requirements,
institutions must meet institution-level as well as program-level
eligibility requirements for students in those programs to receive
title IV assistance in the form of loans or grants. HEA sections 101
and 102 state that one type of program for which certain categories of
institutions must establish program-level eligibility is a ``program of
training to prepare students for gainful employment in a recognized
occupation.'' \45\ HEA section 481 articulates this same requirement by
defining, in part, an ``eligible program'' as a ``program of training
to prepare students for gainful employment in a recognized
profession.'' \46\
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\45\ 20 U.S.C. 1001(b)(1); 20 U.S.C. 1002(b)(1)(A)(i),
(c)(1)(A).
\46\ 20 U.S.C. 1088(b).
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The Department has increased its focus on these eligibility
requirements over time as key circumstances have changed. College
tuition levels have continued to rise relative to inflation, and
student borrowing levels have reached very high levels. The earnings of
college graduates have not risen apace, however, and earnings outcomes
are not tightly correlated with borrowing levels. Moreover, cases of
institutions using deceptive recruiting and advertising practices to
lure students into postsecondary programs with little return on
investment remain too common. All of these factors combine to strand
many graduates with unaffordable education debt and little enhancement
to their earnings--too often leaving them worse off financially than if
they had not pursued postsecondary education at all. While the
financial returns to college remain high overall for the average
student, in recent years these trends have contributed to increased
skepticism about the value of going to college \47\--threatening one of
the key pathways to upward mobility in the United States.
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\47\ Several surveys have documented declines in the share of
individuals who believe college is worth the cost. For example, see
Education Expectations: Views on the Value of College and Likelihood
to Enroll (June 15, 2022). Strada (<a href="https://stradaeducation.org/report/pv-release-june-15-2022/">https://stradaeducation.org/report/pv-release-june-15-2022/</a>). Klebs, Shelbe, Fishman, Rachel,
Nguyen, Sophie & Hiler, Tamara (2021). One Year Later: COVID-19s
Impact on Current and Future College Students. Third Way (<a href="https://www.thirdway.org/memo/one-year-later-covid-19s-impact-on-current-and-future-college-students">https://www.thirdway.org/memo/one-year-later-covid-19s-impact-on-current-and-future-college-students</a>). See also Board of Governors of the
Fed. Reserve Sys. (May 2022). Economic Well-Being of U.S. Households
in 2021 (<a href="https://www.federalreserve.gov/publications/files/2021-report-economic-well-being-us-households-202205.pdf">https://www.federalreserve.gov/publications/files/2021-report-economic-well-being-us-households-202205.pdf</a>).
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We recognize that these forces are an issue across sectors.
However, by defining GE programs as programs that prepare students for
gainful employment, Congress indicated that the value of adding such
programs to the Federal student loan program and to title IV of the HEA
more broadly lies in their financial outcomes. Yet, despite that
statutory focus, GE programs account for a disproportionate share of
students who complete programs with very low earnings and unmanageable
debt. An essentially transparency-only approach to GE programs, which
is reflected in the 2019 Prior Rule, has not substantially improved the
most troubling trends. To address both the Department's obligation to
oversee that the statutory eligibility requirements are met and to
address the specific need for regulatory action within the sector, the
GE program accountability framework specifies what it means to prepare
students for gainful employment in a recognized occupation. The
framework does so by establishing clear and administrable measures that
are tied to student financial outcomes and that the Department will use
to evaluate whether a GE program is eligible for title IV, HEA program
funds. One measure focuses on manageable debt (the D/E rates measure),
the other on enhanced earnings (the EP measure).\48\ We believe the D/E
and EP measures, singly and taken together, will help promote the
[[Page 70012]]
goal of career programs actually providing financial value to their
graduates--consistent with the statutory definition of GE programs and
in service of the specific need for regulatory action.
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\48\ For a detailed discussion of how the D/E rates measure and
the EP measure assess whether a program is preparing students for
gainful employment in a recognized occupation, see the Gainful
Employment Criteria section in the NPRM, 88 FR 32300, 32343 (May 19,
2023).
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The GE accountability rules effectuate core statutory provisions in
practical and administrable ways. The definitions of ``gainful
employment'' programs are central to the statutory scheme regarding GE
programs, and those provisions establish limits on the programs that
may receive taxpayer support through title IV, HEA loans and grants to
students in those programs. The measures adopted in the GE program
eligibility framework are designed to ensure eligible programs leave
students with affordable debt and enhanced earnings, consistent with
the ordinary meaning of the operative words in the statute. It is not
only reasonable but also in accord with all indications of Congress's
intent to conclude that a program does not prepare students for gainful
employment in a recognized occupation if typical program graduates are
left with unaffordable debt, or if they earn no more than comparable
high school graduates.\49\ Students in such programs receive no
financial gain, and may even experience financial loss, as a result of
attending their career training programs. Those results indicate
failure, not success, as a title IV, HEA eligible GE program. To be
sure, as shown Tables 4.8 and 4.9 in the RIA, the Department estimates
that most of the existing GE programs serving the majority of GE
students will not fail these metrics, let alone be ineligible for title
IV, HEA participation by failing in two of three consecutive years for
which results are issued. In any event, the programs that may lose
title IV, HEA eligibility under these rules are the programs that
perform especially poorly for students and, consequentially, taxpayers.
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\49\ Some commenters criticized the Department's position in
favor of performance measures for GE programs as focusing overly
much on the two words, ``gainful employment.'' In our view, that
criticism understates the depth of analysis and breadth of
considerations that support the Department's position--including our
attention to the GE provisions as a whole as well as the structure
of the Higher Education Act more broadly. This criticism also
undervalues the enacted text, however many or few words are relevant
to the issue of GE performance measures. We are unpersuaded by
arguments that appear to place little value, and consequently no
serious limits, on the terms of the gainful employment provisions in
the statute.
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Moreover, in past litigation involving affordable debt metrics,
courts have accepted that reasonable performance measures may be used
to evaluate the eligibility of GE programs for title IV, HEA
participation. Those courts based those decisions on the text,
structure, and purposes of the relevant statutory provisions. Thus, in
reviewing previous GE rules, courts have examined the GE provisions of
the HEA and explained, for example, that ``train'' and ``prepare'' are
terms that ``suggest elevation to something more than just any paying
job. They suggest jobs that students would less likely be able to
obtain without that training and preparation.'' \50\ Courts have
further concluded that ``it is reasonable to consider students' success
in the job market as an indication of whether those students were, in
fact, adequately prepared,'' \51\ and that ``examining [GE] programs'
outputs in terms of earnings and debts'' is consistent with the
HEA.\52\ Accordingly, the basic question of whether the HEA authorizes
nonarbitrary GE performance measures has been resolved repeatedly in
the Department's favor. There are, of course, issues of detail to
settle in formulating particular outcome measures that are clear,
workable, and suited to their purposes. Indeed, questions of how
exactly to specify the GE performance measures involve complex
assessments of how best to evaluate whether programs prepare students
for gainful employment, which the Department is statutorily authorized
and well-positioned to resolve given the Department's experience,
knowledge, and expertise. The Department administers the relevant
statutes, and it has used the negotiated rulemaking process to inform
its views and gather and consider a broad range of perspectives before
adopting these final rules. Importantly, the Department now has better
data and data analysis than ever previously available.\53\
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\50\ Ass'n of Priv. Sector Colleges & Universities v. Duncan,
640 F. App'x 5, 8 (D.C. Cir. 2016) (per curiam).
\51\ Ass'n of Proprietary Colleges v. Duncan, 107 F. Supp. 3d
332, 362 (S.D.N.Y. 2015) (internal quotation marks omitted) (quoting
Ass'n of Priv. Colleges & Universities v. Duncan, 870 F. Supp. 2d
133, 147-48 (D.D.C. 2012)).
\52\ Ass'n of Priv. Sector Colleges & Universities v. Duncan,
110 F. Supp. 3d 176, 187-88 (D.D.C. 2015) (emphasis omitted), aff'd,
640 F. App'x 5 (D.C. Cir. 2016) (per curiam); id. at 187 n.4
(explaining by way of analogy that there is ``no irreconcilable
conflict'' between a concentration on ``inputs'' such as pre-match
training and ``outputs'' in terms of match performance).
\53\ See the RIA in this document for analyses of how the D/E
rates metric and the earnings premium metric provide objective,
data-driven assessments of whether GE programs are preparing their
students for gainful employment in a recognized occupation or
whether they are instead leaving their students with unmanageable
debt or no better off than if they had not pursued a postsecondary
credential. See also the discussion below of the earnings premium
metric and reasons for its adoption, in light of recent developments
and new evidence, in this final rule.
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The foregoing points and discussion elsewhere in this document and
the NPRM are sufficient to establish the Department's authority to
adopt the GE program eligibility framework. If additional support were
needed, statutory history and legislative history confirm that program
performance, including performance related to enhanced earnings and
affordable debt, has been a focus of the relevant statutory provisions
from the beginning. Such program performance was addressed in
legislative history of the National Vocational Student Loan Insurance
Act (NVSLIA), Public Law 89-287 (1965)--which is the statute that first
permitted students to obtain federally financed loans to enroll in
vocational programs. Both the ability of students to repay loans and
the benefits to students from training were identified as principal
issues during the development of that legislation.\54\ Indeed, the
Senate Report that accompanied the NVSLIA quoted extensively from
testimony on behalf of the American Personnel and Guidance Association,
which supported the legislation for the purpose of enabling students to
ensure their financial security by ``acquiring job skills which will
allow them to enter and compete successfully in our increasingly
complex occupational society,'' while also emphasizing, based on an
early study, that ``sufficient numbers'' of graduates of such programs
``were working for sufficient wages to make the concept of student
loans to be [repaid] following graduation a reasonable approach to
take.'' \55\
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\54\ See generally Ass'n of Priv. Colleges & Universities v.
Duncan, 870 F. Supp. 2d 133, 138-41 (D.D.C. 2012) (APCU) (reviewing
statutory history and legislative history).
\55\ S. Rep. No. 89-758 (1965), reprinted in 1965 U.S.C.C.A.N.
3742, 3748-49 (quoting testimony of Professor Dr. Kenneth B. Hoyt);
id. at 3749 (further quoting Hoyt's testimony as finding no reason
to believe that making government funds available would be
unjustified ``in terms of benefits accruing to both these students
and to society in general, nor that they would represent a poor
financial risk''); id. at 3744 (explaining that the testimony
``confirmed the committee's estimate of the need for such
legislation''); APCU, 870 F. Supp. 2d at 139 (stating that both
House and Senate subcommittees ``placed considerable weight on Dr.
Hoyt's testimony'').
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The statutory framework has not changed in relevant part, and the
taxpayer interest in safeguarding the use of Federal funds persists
today. Under the loan insurance program enacted in the NVSLIA, the
specific potential loss to taxpayers of concern was the need to pay
default claims to banks and other lenders if the borrowers defaulted on
[[Page 70013]]
the loans. After its passage, the NVSLIA was merged into the HEA which,
in title IV, part B, has both a direct Federal loan insurance component
and a Federal reinsurance component that require the Federal Government
to reimburse State and private nonprofit loan guaranty agencies upon
their payment of default claims.\56\ Under either HEA component,
taxpayers and the Government assume the direct financial risk of
default.\57\ Since the Health Care and Reconciliation Act of 2010,\58\
all Federal loans have been originated as Direct Loans from the Federal
Government. As the originator and owner of Federal loans, the Federal
Government (funded by taxpayers) bears the cost of any unpaid loans.
Costs are generated by borrowers defaulting on their loans, but
increasingly costs are also generated by borrowers electing to repay
their loans on income driven repayment (IDR) plans. Under these plans,
borrowers can pay a fixed share of the portion of their income
exceeding a threshold level (i.e., their discretionary income) for a
preset period of time, and then have the remaining balance forgiven.
When borrowers' debts are high relative to their income, they are more
likely to not fully repay their loans. To avoid adverse repayment risks
both from default or loan forgiveness via IDR plans, taxpayers have an
interest in financing career training programs that leave students
better off in terms of earnings, and with debt in reasonable proportion
to their earnings. Participation in IDR plans has increased by
approximately 50 percent since 2016 to about 9 million borrowers and is
likely to increase more with the introduction of the new and more
generous Saving on a Valuable Education (SAVE) IDR plan. Accordingly,
the Department has a significant interest, on behalf of taxpayers, in
ensuring the funds disbursed through title IV, HEA loans are invested
responsibly, further supporting the use of performance measures to
assess a program's eligibility to participate in the title IV, HEA
programs as a GE program.
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\56\ 20 U.S.C. 1071(a)(1).
\57\ 20 U.S.C. 1078(c) (Federal reinsurance for default claim
payments); 20 U.S.C. 1080 (Federal insurance for default claims).
\58\ Public Law 111-152.
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With regard to the earnings premium measure, we offer further
discussion below. We note here that, to receive title IV funds, section
484 of the HEA generally requires that students already have a high
school diploma or recognized equivalent. That requirement makes high-
school-level achievement the presumptive starting point for title IV,
HEA funds. The EP measure adopts that statutory starting point by
comparing the earnings of typical program completers with those of
comparable high school graduates. As with the debt-to-earnings measure,
the earnings premium measure is consistent with the text, structure,
and purposes of the statute.
We disagree with the commenters who contended that the differences
between the 2014 Prior Rule and the GE program accountability framework
in these regulations suggest a lack of statutory authority. In the
NPRM, we discussed the background of the regulations,\59\ the relevant
data available,\60\ and the major changes proposed in that
document,\61\ including the changes from the 2014 Prior Rule and the
2019 Prior Rule. Although the GE program accountability framework in
this final rule differs from the 2014 Prior Rule, including in the
addition of a standalone earnings premium measure, we have demonstrated
how the D/E rates measure and the EP measure, singly and taken
together, are reasonable, evidence-based metrics that both serve to
meet the statutory eligibility requirements and address the specific
need for regulatory action in the sector. The fact that this final rule
varies from prior GE regulations is not indicative of lack of authority
for the Department to implement the statutory provisions related to GE
programs and to develop rules to properly administer the title IV, HEA
programs. Rather, the development of this rule reflects the reality
that the Department's judgments and policies on a variety of issues may
change over time in light of experience, information, and analysis--
which the law permits, as long as the Department's rules remain within
the boundaries of the applicable statutes and the Department provides a
reasoned basis for the change in position.\62\
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\59\ 88 FR 32300, 32306 (May 19, 2023).
\60\ 88 FR 32300, 32392 (May 19, 2023).
\61\ 88 FR 32300, 32317 (May 19, 2023).
\62\ See, for example, FCC v. Fox Television Stations, Inc., 556
U.S. 502, 515-16 (2009).
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The Department, therefore, disagrees with commenters who believe
that the GE program accountability framework is not within the
Department's statutory authority, and further disagrees with claims
that GE program results are not relevant to GE program eligibility for
title IV, HEA funding. The Department also disagrees with suggestions
that we should implement the statute without clear and administrable
rules for evaluating whether GE programs are meeting statutory
eligibility requirements. Without relatively specific rules, the
Department could not adequately ensure that title IV, HEA funds are
properly channeled to students attending programs that prepare students
for gainful employment; institutions would not have clarity as to the
standards for GE programs that the Department applies; and we would not
be able to address the need for regulatory action in the sector.\63\
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\63\ In suggesting that congressional intent regarding GE
programs indicates relatively narrow authority for the Department, a
commenter pointed to post-enactment statements by Members of
Congress as well as unsuccessful legislation. The Department is
attentive to input from Members of Congress, but we disagree that
the statutory authority for these rules is limited by unenacted
bills or policy positions. To the extent that the 2019 Prior Rule
can somehow be read to adopt a contrary position, that position
cannot be sustained. See, for example, Bostock v. Clayton County,
140 S. Ct. 1731, 1747 (2020) (``All we can know for certain is that
speculation about why a later Congress declined to adopt new
legislation offers a `particularly dangerous' basis on which to rest
an interpretation of an existing law a different and earlier
Congress did adopt.'') (quoting Pension Ben. Guar. Corp. v. LTV
Corp., 496 U.S. 633, 650 (1990)). In this rulemaking, we have
emphasized, among other sources, statutory text, structure, purpose,
and past judicial decisions, as well as the Department's well-
reasoned choices on matters of detail in the exercise of its
authority to administer the relevant statutes and in light of the
Department's experience and expertise. Nothing in the 2019 Prior
Rule, and its more limited review of the foregoing considerations,
prevents the Department from engaging in this analysis and reaching
the conclusions set forth herein.
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We note, finally, that all or nearly all of the commenters'
arguments against any GE performance measure have been raised and
rejected during previous rulemaking efforts and in litigation over
previous versions of the Department's GE program accountability rules.
The statutory arguments against considering GE program outcomes of any
kind are not more persuasive now than they were in past years. In fact,
new data, data analysis, and the Department's experience in attempting
to enforce the statutory limits on GE programs have convinced us that
these performance measures are more, not less, urgently needed.
Changes: None.
Comments: Some commenters questioned the Department's authority, at
least at this time, to adopt performance measures for GE program
eligibility including the earnings premium (EP) measure. Some
commenters noted that the EP measure is a new standard and argued that
the measure was beyond the Department's authority to adopt for
evaluating the eligibility of GE programs to participate in title IV,
HEA. Some commenters asserted that the Department had not adequately
supported the EP measure in the NPRM, or that the Department's
[[Page 70014]]
support for the EP measure is arbitrary. While many commentators did
not focus on the EP measure in terms of the Department's statutory
authority, some commenters did make general challenges to the GE
program accountability framework that applied to the EP measure as well
as the debt-to-earnings (D/E) rates. Some of those challenges were
based on the commenters' interpretation of ``gainful employment'' in
the GE statutory provisions to mean any job that pays any amount, and
on the contention that the Department is arbitrarily changing its
position from the 2019 Prior Rule.
Discussion: In several respects, this final rule differs from the
2019 Prior Rule as well as the 2014 Prior Rule. We have acknowledged
those differences and offered reasons for them in this document and in
the NPRM.\64\ One difference is the addition of an earnings premium
measure, which will operate alongside the debt-to-earnings rates
measure in evaluating GE program eligibility. Further details and
reasons for adopting the EP measure are presented below and in the
NPRM.\65\ In this discussion, we summarize several connected reasons
for adopting the EP measure for GE program eligibility in these final
rules.
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\64\ See 88 FR 32300, 32307-08 (May 19, 2023); id. at 32309-11,
32342-43 (providing reasons for the adoption of GE accountability
rules at this time, in view of the 2019 Prior Rule and subsequent
developments).
\65\ See, for example, 88 FR 32300, 32308, 32325-28, 32343-44
(May 19, 2023). Those discussions also address the D/E rates
measure.
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First of all, the Department's careful review of applicable law and
public comments leave us convinced that the EP measure is within the
Department's statutory authority. Statutory text, structure, and
purpose support that conclusion. If program completers' earnings fall
below those of students who never pursue postsecondary education in the
first place, programs cannot fairly be said to ``train'' postsecondary
students to ``prepare'' them for ``gainful employment'' in recognized
professions or occupations.\66\ Those statutory terms indicate that
eligible GE programs must make students ready or able to achieve
gainful employment in such professions or occupations--consistent with
a statutory purpose of improving students' ultimate job prospects and
income over what they would be in the absence of such training and
preparation. As the D.C. Circuit stated when it reviewed the D/E
measure in the 2014 Prior Rule, those statutory terms ``suggest
elevation to something more than just any paying job. They suggest jobs
that students would less likely be able to obtain without that training
and preparation.'' \67\ At minimum, the statutory language permits the
conclusion that the Department adopts here.
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\66\ 20 U.S.C. 1002(b)(1)(A), (c)(1)(A). See also 20 U.S.C.
1088(b)(1)(A)(i), which refers to a recognized profession.
\67\ Ass'n of Priv. Sector Colleges & Universities v. Duncan,
640 F. App'x 5, 8 (D.C. Cir. 2016) (per curiam). Although the courts
were likewise reviewing D/E measures for GE program eligibility
rather than EP measures, generally supportive language also appears
in Ass'n of Priv. Sector Colleges & Universities v. Duncan, 110 F.
Supp. 3d 176, 187-88 (D.D.C. 2015) (stating that ``examining [GE]
programs' outputs in terms of earnings and debts'' is consistent
with the HEA) (emphasis omitted), aff'd, 640 F. App'x at 6; Ass'n of
Proprietary Colleges v. Duncan, 107 F. Supp. 3d 332, 362 (S.D.N.Y.
2015) (concluding that ``it is reasonable to consider students'
success in the job market as an indication of whether those students
were, in fact, adequately prepared'') (internal quotation marks
omitted) (quoting Ass'n of Priv. Colleges & Universities v. Duncan,
870 F. Supp. 2d 133, 147-48 (D.D.C. 2012)).
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Importantly, the overall structure of the applicable statutes
reinforces our adoption of the EP measure. The basic starting point for
students at eligible GE programs is a high school education or its
equivalent, as we pointed out in the NPRM.\68\ The HEA generally
requires students who receive title IV assistance to have already
completed a high school education,\69\ and then, from that starting
point, the statute requires GE programs to prepare those high school
graduates for gainful employment in a recognized occupation. Whatever
ambiguity or vagueness there might be in the HEA, clearly GE programs
are supposed to enhance earnings power beyond that of what high school
graduates, not leave them where they started. The EP measure reflects
that premise of the applicable statutes. It will measure post-high
school gain, in part, with an administrable test that reflects earnings
beyond a typical high school graduate.
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\68\ See, for example, 88 FR 32300, 32308, 32333, 32327 (May 19,
2023).
\69\ Regarding a high school education as the starting point, 20
U.S.C. 1001 states that an institution of higher education must only
admit as regular students those individuals who have completed their
secondary education or met specific requirements under 20 U.S.C.
1091(d), which includes an assessment that they demonstrate the
ability to benefit from the postsecondary program being offered. The
definitions for a proprietary institution of higher education or a
postsecondary vocational institution in 20 U.S.C. 1002 maintain the
same requirement for admitting individuals who have completed
secondary education. Similarly, there are only narrow exceptions for
students beyond the age of compulsory attendance who are dually or
concurrently enrolled in postsecondary and secondary education. The
apparent purpose of such limitations is to help promote that
postsecondary programs build skills and knowledge that extend beyond
what is taught in high school.
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The discussions in this document and in the NPRM are more than
sufficient to establish the Department's authority to adopt the GE
eligibility rules, including the EP measure.
The Department recognizes again, as we did in the NPRM,\70\ that
the EP measure will be new to the Department's regulations. More
broadly, we recognize that until 2010 the Department did not specify
through regulations an administrable test to identify which programs
qualify as eligible GE programs under the statutes. Nevertheless, we do
not believe that the meaning of the applicable statutes becomes
narrower because the agency initially refrained from issuing
regulations that incorporated specific performance tests. The need for
such rules became clearer over time. In addition to the points made
above, new data and analyses have underscored the need for performance-
based limits on GE program eligibility, including a test for enhanced
student earnings. Acting now will enable the Department to respond to
that emerging need with administrable tests of program performance that
accord with statutory text, structure, and purpose.
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\70\ See 88 FR 32300, 32307-11 (May 19, 2023).
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An EP measure for GE eligibility finds support in recent evidence
and studies. Within the last several years, a number of researchers
have recommended that the Department reinstate the 2014 GE rule with an
added layer of accountability through a high school earnings
metric.\71\ That goal of ensuring that students benefit financially
from their career training fits with broader research on the economics
of postsecondary education. Similar earnings premium metrics are used
ubiquitously by economists and other analysts to measure the earnings
gains associated with college credentials relative to a high school
education.\72\
[[Page 70015]]
Furthermore, there is increasing public recognition that some higher
education programs are not ``worth it'' and do not promote economic
mobility.\73\ While the D/E rates measure identifies programs where
debt is high relative to earnings, the EP measure assesses the economic
boost a program provides to its students independent of the debt
incurred. After all, students and families invest their own time and
money in postsecondary education in addition to the amount they borrow.
The EP measure therefore provides a different measure than the D/E
metric of whether a program prepares its students for gainful
employment in a recognized occupation. Adopting an EP measure for GE
programs that seek to participate in title IV, HEA fits within such
recent recommendations, data analysis, and mainstream thinking about
which career training programs should be considered gainful.
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\71\ See, for example, Matsudaira, Jordan D. & Turner, Lesley J.
(2020). Towards a Framework for Accountability for Federal Financial
Assistance Programs in Postsecondary Education. The Brookings
Institution (<a href="http://www.brookings.edu/wp-content/uploads/2020/11/20210603-Mats-Turner.pdf">www.brookings.edu/wp-content/uploads/2020/11/20210603-Mats-Turner.pdf</a>). Cellini, Stephanie R. & Blanchard, Kathryn J.
(2022). Using a High School Earnings Benchmark to Measure College
Student Success Implications for Accountability and Equity. The
Postsecondary Equity and Economics Research Project.
(<a href="http://www.peerresearchproject.org/peer/research/body/2022.3.3PEER_HSEarnings-Updated.pdf">www.peerresearchproject.org/peer/research/body/2022.3.3PEER_HSEarnings-Updated.pdf</a>). Itzkowitz, Michael (2020).
Price to Earnings Premium: A New Way of Measuring Return on
Investment in Higher Education. Third Way (<a href="https://www.thirdway.org/report/price-to-earnings-premium-a-new-way-of-measuring-return-on-investment-in-higher-ed">https://www.thirdway.org/report/price-to-earnings-premium-a-new-way-of-measuring-return-on-investment-in-higher-ed</a>). For further discussion of such research,
see the Regulatory Impact Analysis below.
\72\ See, for example, Autor, D.H. (2014). Skills, Education,
and the Rise of Earnings Inequality Among the ``Other 99 Percent.''
Science,344(6186), 843-851. Baum, S. (2014). Higher Education
Earnings Premium: Value, Variation, and Trends. Urban Institute.
Carnevale, A.P., Cheah, B. & Rose, S.J. (2011). The College Pay Off.
Daly, M.C. & Bengali, L. (2014). Is It Still Worth Going to College.
FRBSF Economic Letter,13(2014), 1-5. Li, A., Wallace, M. & Hyde, A.
(2019). Degrees of Inequality: The Great Recession and the College
Earnings Premium in US Metropolitan Areas. Social Science
Research,84, 102342; Oreopoulos, P. & Petronijevic, U. (2013).
Making College Worth It: A Review of Research on the Returns to
Higher Education. NBER Working Papers, (19053); and Broady, Kristen
E. & Herschbein, Brad (2020). Major Decisions: What Graduates Earn
Over Their Lifetimes. The Hamilton Project.
\73\ See, for example, polling evidence in <a href="https://www.wsj.com/articles/americans-are-losing-faith-in-college-education-wsj-norc-poll-finds-3a836ce1">https://www.wsj.com/articles/americans-are-losing-faith-in-college-education-wsj-norc-poll-finds-3a836ce1</a>. A 2022 survey by the Federal Reserve shows that
more than one-third of workers under the age of 45 say the benefits
of their education did not exceed the costs (<a href="https://www.federalreserve.gov/publications/files/2022-report-economic-well-being-us-households-202305.pdf">https://www.federalreserve.gov/publications/files/2022-report-economic-well-being-us-households-202305.pdf</a>).
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Furthermore, the EP measure that we adopt will set only minimal and
reasonable expectations for programs that are supposed to help students
move beyond a high school baseline. The rule marks an incremental and
commonsense change that we are confident is within the Department's
authority. In particular, we observe that the median earnings of high
school graduates is about $25,000 nationally, which corresponds to the
earnings of a full-time worker who makes about $12.50 per hour.\74\ We
also reiterate that the EP measure does not demand that every
individual who attends a GE program must earn more than a high school
graduate; instead, the measure requires only that at least half of
those who actually complete the program are earning at least slightly
more than individuals who had never completed postsecondary
education.\75\ The vast majority of students cite the opportunity for a
good job or higher earnings as a key, if not the most important, reason
they chose to pursue a college degree.\76\ While the 2014 Prior Rule
justifiably emphasized that borrowers should be able to earn enough to
afford to repay their debts, the Department recognizes here that
borrowers must be able to afford more than ''just'' their loan payments
and that postsecondary GE programs should help students reach a minimal
level of labor market earnings.
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\74\ That figure is lower than the minimum wage in 15 States.
See <a href="https://www.dol.gov/agencies/whd/mw-consolidated">https://www.dol.gov/agencies/whd/mw-consolidated</a>.
\75\ See 88 FR 32300, 32333, 32327 (May 19, 2023). The EP
measure simply compares program completers' earnings with high
school graduates' earnings and therefore does not reflect tuition
costs or debt. See id. at 32327. Note that these EP features are not
unique to the GE program eligibility provisions. These EP features
apply within the financial value transparency provisions as well.
\76\ For example, a recent survey of 2,000 persons aged 16 to 19
and 2,000 recent college graduates aged 22 to 30 rated affordable
tuition, higher income potential, and lower student debt as the top
3 to 4 most important factors in choosing a college (<a href="https://www.nytimes.com/2023/03/27/opinion/problem-college-rankings.html">https://www.nytimes.com/2023/03/27/opinion/problem-college-rankings.html</a>).
The RIA includes citations of other survey results with similar
findings.
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Although modest in several respects, the EP measure for GE program
eligibility is nonetheless likely to deliver important benefits and
substantially further statutory purposes. We are convinced of these
prospective gains by recent evidence. For example, recent research
indicates that the EP measure will help protect students from the
adverse borrowing outcomes prevalent among programs with very low
earnings. Research conducted since the 2014 Prior Rule as well as new
data analyses shown in this RIA illustrate that, for borrowers with low
earnings, even small amounts of debt--including levels of debt that
would not trigger failure of the D/E rates--can be unmanageable. We now
can be reasonably confident that default rates tend to be especially
high among borrowers with lower debt levels and very low earnings,
because at low earnings levels any amount of debt in unaffordable.\77\
Analyses in this RIA show that the default rate among students in
programs that pass the D/E rates thresholds but fail the earnings
premium are very high. In fact, those default rates are even higher
than programs that fail the D/E rates measure but pass the EP measure.
In that sense, the EP measure is an important separate measure of
gainfulness, providing some added protection to borrowers who have
relatively low balances, but who have earnings so low that even low
levels of debt payments are unaffordable.
---------------------------------------------------------------------------
\77\ See Brown, Meta et al. (2015). Looking at Student Loan
Defaults Through a Larger Window. Liberty Street Economics, Fed.
Reserve Bank of N.Y. (<a href="https://libertystreeteconomics.newyorkfed.org/2015/02/looking_at_student_loan_defaults_through_a_larger_window/">https://libertystreeteconomics.newyorkfed.org/2015/02/looking_at_student_loan_defaults_through_a_larger_window/</a>).
---------------------------------------------------------------------------
In addition, we reaffirm that the EP measure will help protect
taxpayers.\78\ Borrowers with low earnings are eligible for reduced
loan payments and loan forgiveness, which increase the costs of the
title IV, HEA loan program to taxpayers. While income-driven repayment
(IDR) plans for Federal student loans partially shield borrowers from
default due to inability to make payments, such after-the-fact
protections do not address underlying program failures to prepare
students for gainful employment in the first place, and they exacerbate
the impact of such failures on taxpayers as a whole when borrowers are
unable to pay. Not all borrowers participate in these repayment plans
and, where they do, the risks of nonpayment are shifted to taxpayers
when borrowers' payments are not sufficient to fully pay back their
loans. This is true because borrowers with persistently low incomes who
enroll in IDR--and thereby make payments based on a share of their
income that can be as low as $0--will have their remaining balances
forgiven at taxpayer expense after a specified number of years in
repayment. Both the EP and D/E measures for GE program eligibility will
help protect taxpayers, because both measures are well-designed to
screen out GE programs that generate a disproportionate share of the
costs to taxpayers and negative borrower outcomes. In support of this
conclusion, the final RIA as well as the NPRM's RIA presented estimates
of loan repayment under the hypothetical assumption that all borrowers
pay on the SAVE plan announced by the Department in July 2023.\79\
These analyses show that both D/E and EP measures are strongly
correlated with an estimated subsidy rate on Federal loans, which
measures the share of a disbursed loan that will not be repaid, and
thus provides a proxy for the cost of loans to taxpayers.\80\ Although
many commenters disagreed with at least part of the Department's
approach to GE programs, commenters did not appear to take issue with
the proposition that taxpayer protection is a purpose to be served by
the GE provisions in the HEA.
---------------------------------------------------------------------------
\78\ See, for example, 88 FR 32300, 32307-09 (May 19, 2023).
\79\ See 88 FR 1894 (Jan. 11, 2023). The Department's final rule
for IDR can be found at 88 FR 43820 (July 10, 2023).
\80\ See Table 2.10 in the RIA for this document.
---------------------------------------------------------------------------
Thus, the EP and D/E measures serve some of the same purposes, but
we observe again that they measure importantly distinct dimensions of
[[Page 70016]]
gainful employment.\81\ The distinctions support the Department's
decision to require that GE programs not (repeatedly) fail either
measure if those programs are to receive title IV, HEA support. D/E
rates measure debt-affordability, indicating whether the typical
graduate will have earnings enough to manage their debt service
payments without incurring undue hardship. For any median earnings
level of a program, the D/E rates and thresholds imply a maximum level
of total borrowing beyond which students should be concerned that they
may not be able to successfully manage their debt. The EP measure tests
whether programs leave their completers with greater earnings capacity
than those who do not enroll in postsecondary education, which
represents a minimal benchmark that students pursuing postsecondary
credentials likely expect to achieve. And while the EP measure provides
additional protection to borrowers and taxpayers, it attends to a
distinct aspect of determining whether a program prepares its students
for gainful employment in a recognized occupation--namely, the extent
to which the program helps students attain a minimally acceptable
earnings enhancement.
---------------------------------------------------------------------------
\81\ See, for example, 88 FR 32300, 32308, 32327, 32344 (May 19,
2023). We reiterate that the D/E and EP measures are severable. The
severability provisions in these final rules are Sec. Sec. 668.409
and 668.606. For the Department's discussions of severability
generally and as applied to the D/E and EP measures, please see the
NPRM, 88 FR 32300, 32341-42, 32349 (May 19, 2023).
---------------------------------------------------------------------------
Accordingly, we disagree with commenters who argue that the
Department either generally lacks authority to adopt the EP measure for
GE program eligibility, or that the Department chose the wrong time to
adopt that measure. We understand the opinions of those who prefer that
the Department not adopt administrable and clear rules to test GE
program performance. Unlike the rules as they stood after the 2019
rescission, these final rules will demand that GE programs not have a
track record of failure on certain basic measures of performance if
they seek to benefit from title IV, HEA taxpayer funds. Some GE
programs will repeatedly fail those measures, although we point out
that some of those programs will survive without support from the
Federal Government through title IV, HEA. Regardless, we are convinced
that these rules are within the Department's statutory authority, and
that recent events and new information confirm the importance of acting
now. If the Department does not act effectively at the front end to
screen out the subset of GE programs that do not meet minimal
performance standards of enhanced earnings and affordable debt,
students and taxpayers will continue to suffer the consequences at the
back end. Those consequences have grown larger and clearer, and the
Department has decided to respond decisively yet reasonably. A clear
earnings premium rule for GE program eligibility is one part of that
measured response.
Comments: Several commenters contended that there is an increased
burden on the Department to demonstrate congressional authorization for
its proposed GE metrics under West Virginia v. Environmental Protection
Agency \82\ and the major questions doctrine. These commenters
described the proposed eligibility framework as a major shift in the
way GE programs maintain title IV, HEA eligibility that would impact
the funding for many students and institutions, and asserted that the
framework creates burdensome new reporting requirements. These
commenters concluded that the statutory language relied upon--that GE
programs ``prepare students for gainful employment in a recognized
occupation''--is not a sufficiently explicit statement of congressional
intent to support such a change.
---------------------------------------------------------------------------
\82\ 142 S. Ct. 2587 (2022).
---------------------------------------------------------------------------
Discussion: We disagree that the major questions doctrine applies
such that the Department needs an especially clear grant of statutory
authority to adopt performance standards in the GE program
accountability framework. Having considered the factors that courts
have used to identify exceptional circumstances in which such clarity
is required, we do not believe that the doctrine applies here.\83\ If
the doctrine did apply, we believe that the Department's authority to
adopt performance standards for GE program eligibility is adequately
clear based on ordinary tools of statutory interpretation.
---------------------------------------------------------------------------
\83\ See, for example, id. at 2608 (discussing extraordinary
cases in which the breadth, history, and economic and political
significance of asserted agency authority provide reason to hesitate
before concluding that Congress conferred such authority).
---------------------------------------------------------------------------
As discussed above and in the NPRM,\84\ we believe performance
measures for GE accountability rules are firmly grounded in the text,
structure, and purposes of tile IV, HEA, including its gainful
employment provisions. Furthermore, and for reasons also discussed
above, GE performance measures are neither novel nor surprising. We
have noted past litigation and court opinions.\85\ And given the
grounding of performance measures in the text of core statutory
provisions in the HEA regarding GE programs, there is nothing
``ancillary'' about those statutory provisions such that the major
questions doctrine might apply on that basis.\86\
---------------------------------------------------------------------------
\84\ 88 FR 32300, 32306 (May 19, 2023).
\85\ See cases cited in notes 50-52 above, within that earlier
discussion of authority for the GE program accountability framework.
\86\ Compare Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468
(2001) (``Congress, we have held, does not alter the fundamental
details of a regulatory scheme in vague terms or ancillary
provisions--it does not, one might say, hide elephants in
mouseholes.''); Ass'n of Priv. Colleges & Universities v. Duncan,
870 F. Supp. 2d 133, 148 (D.D.C. 2012) (APCU) (reviewing the 2011
Prior GE Rule, distinguishing Whitman, and explaining that
``[n]either the elephant nor the mousehole is present here. . . .
Concerned about inadequate programs and unscrupulous institutions,
the Department has gone looking for rats in ratholes--as the statute
empowers it to do.''); Ass'n of Proprietary Colleges v. Duncan, 107
F. Supp. 3d 332, 361 (S.D.N.Y. 2015) (reviewing the 2014 Prior GE
Rule and quoting APCU).
---------------------------------------------------------------------------
And far from taking any step toward mandating specific curricula
when institutions prefer other educational strategies,\87\ these
performance measures simply evaluate whether programs should receive
taxpayer support based on commonsense financial outcomes: affordable
debt and enhanced earnings. Those outcomes plainly are related to
whether a program actually prepares students for gainful employment in
a recognized occupation or profession, instead of leaving the typical
program completer with unaffordable debt burdens or no greater earnings
than they could secure without career training. These performance
measures are based on the text, structure, and purposes of the
governing statutes. Such rules are, moreover, within the heartland of
the Department's experience and expertise. Among the Department's
longstanding missions are enforcing the limits on title IV, HEA
eligibility for GE programs, and gathering, analyzing, and using data
to evaluate education programs including GE programs. Accordingly, GE
performance measures are not beyond the agency's core competence such
that the major questions doctrine might apply on that basis.\88\
---------------------------------------------------------------------------
\87\ Under section 103 of the Department of Education
Organization Act, 20 U.S.C. 3403(b), the Department is generally
prohibited from exercising any direction, supervision, or control
over the curriculum, program of instruction, administration, or
personnel of an educational institution, school, or school system.
\88\ Compare W. Virginia v. EPA, 142 S. Ct. at 2612-13
(indicating that presumably Congress does not task an agency with
making policy judgments in which the agency has ``no comparative
expertise''); Biden v. Missouri, 142 S. Ct. 647, 653 (2022)
(``[T]here can be no doubt that addressing infection problems in
Medicare and Medicaid facilities is what [the Secretary of Health
and Human Services] does.'').
---------------------------------------------------------------------------
[[Page 70017]]
In addition, available data indicate that the GE program
accountability framework will have important yet limited effects. The
available data, presented in RIA Tables 4.8 and 4.9, indicate that most
existing GE programs will not fail the D/E rates or EP measure when
they are applied, let alone fail two out of three years for which
program results are issued. Our estimates suggest about 1,700 GE
programs will fail the D/E rates or EP measure--representing about 5.3
percent of all GE programs, and only 1.1 percent of all higher
education programs attended by federally aided students. While the
share of students currently enrolled in such programs is higher--23.7
percent of federally aided students in career training programs, and
3.6 percent of all federally aided students--it is important to note
these students have other options. Analyses presented in Tables 4.25
and 4.26 of the RIA show that the majority of students have similar
program options that do not fail the D/E rates or EP measure and are
nearby, or even at the same institution. These analyses are supported
by external research, suggesting that most students in institutions
closed by accountability provisions successfully reenroll in higher
performing colleges.\89\ More generally, many more students will pursue
a postsecondary education in the future, relative to the number
enrolled now. As programs with poor performance close, these future
college goers will benefit from better options to choose from and are
unlikely to otherwise be affected by programs closed today. In any
event, nearly three-quarters of institutions of higher education that
participate in title IV, HEA programs have no enrollment in failing GE
programs that might be subject to eligibility loss.
---------------------------------------------------------------------------
\89\ Cellini, S.R., Darlie, R. & Turner, L.J. (2020). Where Do
Students Go When For-Profit Colleges Lose Federal Aid? American
Economic Journal: Economic Policy, 12(2): 46-83.
---------------------------------------------------------------------------
Those predicted effects do not establish the kind of transformation
or upheaval in higher education that might trigger the major questions
doctrine.\90\ Indeed none of the above considerations indicates the
special circumstances under which courts have invoked the major
questions doctrine to demand especially clear statutory authorization
for agency action.
---------------------------------------------------------------------------
\90\ Compare W. Virginia v. EPA, 142 S. Ct. at 2610 (addressing
what the Court characterized as agency authority to ``substantially
restructure the American energy market,'' and an ``unheralded
power'' that would represent a ``transformative expansion'' of
agency authority) (internal quotation marks omitted); Biden v.
Nebraska, 143 S. Ct. 2355, 2373 (2023) (discussing what the Court
described as a ``fundamental revision of the statute'' and a
decision with ``staggering'' economic and political significance).
---------------------------------------------------------------------------
Of course, the GE program accountability framework is not
irrelevant as a matter of economics or politics. Every student who ends
up with enhanced earnings or more affordable debt is important, in the
Department's view, as is every Federal dollar saved from expenditure on
poorly performing GE programs. And we acknowledge that there is
disagreement among those who are engaged in the relevant policy debates
about the appropriate content for the GE rules. We likewise acknowledge
that the precise content of the GE rules and their effects are
important to institutions, students, and taxpayers. In fact, the HEA
requires that limits on GE programs be recognized and enforced; the
Department is not free to ignore those limits as if the applicable
sections were surplusage, and that point is not insignificant to the
statutory scheme. But in this instance, the Department is adopting
relatively modest, commonsense, minimum performance standards that most
GE programs seeking government support can and should pass without
trouble, and that do not preempt, through agency action, any widespread
political controversy that Congress intended to reserve for itself.
Although the Department must make judgments about the details of
performance measures to make the rules clear and easily administrable,
those choices of detail are, by definition, not subject to the major
questions doctrine.
We also observe that the Department has followed and benefitted
from an extensive process before issuing these final rules on GE
accountability. The Department used the negotiated rulemaking
provisions in the HEA, with notice and comment rulemaking, which is the
process that was created for the Department to consider the interests
of title IV, HEA participants, among others. In this context,
reestablishing an eligibility framework for GE programs fits well with
the financial value transparency framework for all programs while
setting an outcome-based limit for GE programs.
Changes: None.
Comments: Some commenters contended that a lack of congressional
authorization to use outcomes-based measures for GE programs is shown
by other eligibility requirements in the HEA, including cohort default
rates, the 90/10 revenue requirement, and limitations on correspondence
courses. A commenter also asserted that Congress created cohort default
rates (CDRs) as a performance measure for institutions rather than
directing the Department to set program-based outcomes as eligibility
requirements. Some commenters argued that the framework of detailed
program requirements under title IV of the HEA, including institutional
CDR, institutional disclosure requirements, restrictions on student
loan borrowing, and other financial aid requirements, prevents the
Department from adopting debt measures to determine whether a GE
program is eligible to receive title IV, HEA program funds.
Discussion: The Department disagrees that GE performance measures
are somehow precluded by distinct and complementary safeguards
elsewhere in law. There is no express support in the statutes for that
position, which would diminish protections for students and taxpayers.
Instead, the commenters are suggesting an inference of exclusivity with
inadequate support in the statutes. Taking other safeguards as
exclusive would effectively ignore the statutorily prescribed limits on
GE programs as the HEA defines them. The Department can find no sound
reason, in law or policy, for treating the GE provisions as surplusage.
The Department's specification of details in clear and administrable
rules helps us to implement and enforce these provisions appropriately,
and the specific rules for these GE provisions are entirely consistent
with the specific requirements in other statutory provisions.
The Department accordingly disagrees with the commenters'
assertions that the HEA's provisions on CDR, student borrowing, and
other financial aid matters prevent the Department from implementing
the specific HEA provision limiting title IV eligibility to programs
that provide training that prepares students for gainful employment in
a recognized occupation. The different Department rules implement
different statutory provisions. For example, the CDR and GE regulations
serve related but different purposes. Congress enacted the CDR
provision, which measures loan defaults from all programs at the
institutional level, as one mechanism--not the sole, exclusive
mechanism--for dealing with abuses in Federal student aid programs.\91\
Congress did not, in
[[Page 70018]]
enacting the CDR provision or at any other time, limit the Department's
authority to promulgate regulations to effectuate and specify limits on
GE programs.\92\ Nor did Congress alter the existing statutory language
regarding GE program eligibility when it passed the CDR provision.
Moreover, the CDR provision operates at the institutional level while
the GE provisions and these GE accountability rules operate at the
program level. In addition to statutory eligibility requirements at the
institution level, each program must be evaluated for title IV, HEA
eligibility as well.\93\
---------------------------------------------------------------------------
\91\ That conclusion regarding the non-exclusivity of CDR is
consistent with relevant legislative history. See H.R. Rep. No. 110-
500, at 261 (2007) (``Over the years, a number of provisions have
been enacted under the HEA to protect the integrity of the federal
student aid programs. One effective mechanism was to restrict
federal loan eligibility for students at schools with very high
cohort loan default rates.'') (emphasis added).
\92\ Contrast the prohibition on Department regulations in 20
U.S.C. 1015b(i), regarding student access to affordable course
materials. See id. (``The Secretary shall not promulgate regulations
with respect to this section.'').
\93\ See Ass'n of Priv. Colleges & Universities v. Duncan, 870
F. Supp. 2d 133, 147 (D.D.C. 2012). In that case, the court
recognized that the ``statutory cohort default rule . . . does not
prevent the Department from adopting the debt measures'' for GE
programs. Id. (citing Career Coll. Ass'n v. Riley, 74 F.3d 1265,
1272-75 (D.C. Cir. 1996), for the proposition that the Department's
authority to establish ```reasonable standards of financial
responsibility and appropriate institutional capability' empowers it
to promulgate a rule that measures an institution's administrative
capability by reference to its cohort default rate--even though the
administrative test differs significantly from the statutory cohort
default rate test.'').
---------------------------------------------------------------------------
The GE program accountability rules are also consistent with other
provisions of the HEA aimed at curbing abuses in the title IV, HEA
programs. For example, Congress capped the amount of title IV revenues
that proprietary institutions could receive at 85 percent in the 1992
HEA reauthorization as a condition of institutional eligibility, with
subsequent changes that increased the percentage to 90 percent and that
tied a loss of eligibility to two years of failing the 90 percent
measure instead of one year. More recently, Congress also expanded the
definition of Federal education funds to include military benefits to
service members and families as a part of the funds included in the 90
percent limit. The 90/10 provisions were put in place to require
proprietary institutions to generate some revenue from non-Federal
sources. Those changes fit within a larger framework where Congress
also specified that a participating ``institution will not provide any
commission, bonus, or other incentive payment based directly or
indirectly on success in securing enrollments or financial aid to any
persons or entities engaged in any student recruiting or admission
activities or in making decisions regarding the award of student
financial assistance.'' \94\ Additionally, to prevent schools from
improperly inducing people to enroll, Congress prohibited participating
institutions from engaging in a ``substantial misrepresentation of the
nature of its educational program, its financial charges, or the
employability of its graduates.'' \95\ Congress also required a minimum
level of State oversight of eligible schools. The GE program
accountability rules adopted here are consistent and compatible with
such additional and separate regulations, including those that apply to
institutions that seek eligibility for title IV, HEA support.
---------------------------------------------------------------------------
\94\ 20 U.S.C. 1094(a)(20). As one court explained, ``The
concern is that recruiters paid by the head are tempted to sign up
poorly qualified students who will derive little benefit from the
subsidy and may be unable or unwilling to repay federally guaranteed
loans.'' United States ex rel. Main v. Oakland City Univ., 426 F.3d
914, 916 (7th Cir. 2005).
\95\ 20 U.S.C. 1094(c)(3)(A).
---------------------------------------------------------------------------
Changes: None.
Comments: Some commenters asserted that the Department is
misinterpreting the GE program statutory language and suggested that
the language is better read as referring to the type and content of the
program an institution is offering rather than measuring any outcomes
of the program graduates. Other commenters similarly stated that
``gainful employment'' was intended to refer to the nature of the
employment associated with the training and not any type of outcome-
based framework, noting that outcome-based standards provide no basis
for new programs to establish eligibility under the HEA before there
would be any program outcomes to measure. Another commenter referred to
administrative decisions from the Department that also described GE
programs as types of programs leading to recognized occupations. One
commenter claimed that the Department has previously defined the phrase
``gainful employment in a recognized occupation'' in the context of
conducting administrative hearings and argued that the Department did
not adequately explain in the NPRM why it was departing from its prior
use of the term.
Discussion: The GE program accountability framework builds on the
Department's regulation of institutions participating in the title IV,
HEA programs to protect students and taxpayers, as Congress authorized.
For reasons given in this document and the NPRM,\96\ the Department is
adopting GE rules that consider program performance in eligibility
determinations for GE programs. The Department disagrees with the
commenters' claims that the GE provisions address program content and
curriculum alone. Whatever the extent of the Department's authority to
consider GE program content--and the Department is not asserting such
authority in these GE rules--the Department may assess GE program
performance through student outcomes.
---------------------------------------------------------------------------
\96\ 88 FR 32300, 32344 (May 19, 2023).
---------------------------------------------------------------------------
Furthermore, the rules adopted here allow for new as well as
existing GE programs. Although parts of the GE rules are performance-
based, these rules will not exclude programs from title IV, HEA
eligibility until they build a track record to evaluate them. The
Department must have student outcomes data to measure program
performance, which can only come after a period of time. Moreover, the
rules are designed as reasonable, minimum standards whereby title IV,
HEA eligibility as a GE program is not precluded until a program fails
one of the two GE metrics in two out of three consecutive years for
which the Department can issue results. Under these rules, new programs
that otherwise qualify as GE programs do not have to show performance
results that are not yet available.
We further disagree that a previous administrative decision on GE
program eligibility forecloses the adoption of these final rules. The
Department would not be prevented from changing its position in this
rulemaking, of course, even if an older agency decision during an
administrative adjudication conflicted with our decision here. We
provide numerous and extensive reasons for the rules that we are
adopting. But in this instance, no such conflict exists. The argument
was vetted and rejected more than 10 years ago. Challenging the 2011
Prior Rule and referring to a decision by an administrative law judge
(ALJ), the Association of Private Colleges and Universities contended
that the Department previously defined gainful employment in a
recognized occupation in a manner that conflicted with those outcome-
based rules. The adjudication involved the question whether a program
in Jewish culture prepared students enrolled in the program for gainful
employment in a recognized occupation. As the court understood, the ALJ
did not purport to comprehensively decide what it means to prepare a
student for gainful employment in a recognized occupation; instead the
ALJ merely stated that any preparation must be for a specific area of
employment.\97\
[[Page 70019]]
Therefore, the Department did not depart from the ALJ's interpretation
when the Department adopted outcome-based measures for GE programs in
the 2011 Prior Rule.\98\ Nor is the Department departing from that
interpretation with these regulations.
---------------------------------------------------------------------------
\97\ Association of Private Sector Colleges and Universities
(APSCU) v. Duncan, 870 F. Supp. 2d 133, 150 (D.D.C. 2012). The
adjudication involved the question whether a program in Jewish
culture prepared students enrolled in the program for gainful
employment in a recognized occupation.
\98\ See id. In any event, the Department has provided ample
reasons for disagreeing with narrower positions on the GE provisions
and in favor of its positions on outcome-based measures, as
reflected in these rules.
---------------------------------------------------------------------------
Changes: None.
Comments: A few commenters argued that the Department does not
provide adequate reasons for changing approaches from the 2019 Prior
Rule, which rescinded the 2014 Prior Rule.
Discussion: We discussed departures from the 2019 rescission in the
``Background'' section of the NPRM.\99\ Specifically, the Department
remains concerned about the same problems documented in the 2011 and
2014 Prior Rules. Too many borrowers struggle to repay their loans, and
the RIA shows these problems are more prevalent among programs where
graduates have high debts relative to their income, and where graduates
have low earnings. The Department recognizes that, given the high cost
of education and correspondingly high need for student debt, students,
families, institutions, and the public have an acute interest in
knowing whether higher education investments payoff through positive
repayment and earnings outcomes for graduates.
---------------------------------------------------------------------------
\99\ 88 FR 32300, 32306-11 (May 19, 2023).
---------------------------------------------------------------------------
Changes: None.
Comments: One commenter asserted that the Department's 2019 action
to rescind the 2014 GE regulation created a serious reliance interest,
which will cause institutions to incur costs to comply with the
requirements in this final rule. Another commenter noted that there is
little correlation between the earnings data the Department relied upon
in the NPRM RIA and the earnings data that has been posted on College
Scorecard. This commenter believed that institutions have a reliance
interest in how the Department has previously measured debt and
earnings.
Discussion: The NPRM contained a Reliance Interests section,\100\
where the Department acknowledged and considered reliance interests
generally. We reiterate and reaffirm here that the Department's prior
regulatory actions would not have encouraged reasonable reliance on any
particular regulatory position.\101\ The 2019 Prior Rule was issued to
rescind the 2014 Prior Rule at a point when no program had yet been
denied title IV, HEA eligibility as a GE program due to failing GE
outcome measures over multiple years. Thus, institutions that were
operating programs with title IV, HEA support at the time of the 2019
rescission could not have reasonably relied on continuing eligibility
based on their title IV support between the 2014 and 2019 Prior Rules,
and in any case the absence of eligibility denials limited the
practical differences across rule changes for institutions and other
interested parties. As we discuss elsewhere in this document, including
the RIA, we do anticipate positive effects from this final rule, but we
also observe that effects such as ineligibility of GE programs for
participation in title IV, HEA will not occur immediately. Institutions
and others will have some time to adjust. Furthermore, as various
circumstances have changed, in law and otherwise, and as more
information and further analyses have emerged, the Department's
position and rules have changed since the 2011 Prior Rule. Such
alterations in rules do not establish a firmly stable foundation on
which interested parties may develop reasonable and legitimate reliance
interests in a particular set of rules that they prefer. In any event,
we find no reasonable reliance interest in the 2019 rescission
persisting such that the Department could not revise its approach and,
for example, observe meaningful performance-based limits on the
eligibility of gainful employment programs for title IV, HEA
participation. The commenters did not offer useful evidence or other
bases on which the Department could reasonably conclude that asserted
reliance interests, as to the prior rules or the College Scorecard, are
real and significant rather than theoretical and speculative. On
balance, the reliance interests asserted by the commenters have not
changed our position that there are no plausible reliance interests
that are strong enough to lead us to fundamentally alter these final
regulations.
---------------------------------------------------------------------------
\100\ 88 FR 32300, 32316 (May 19, 2023).
\101\ Our conclusions regarding reliance interests are guided by
judicial opinions including FCC v. Fox Television Stations, Inc.,
556 U.S. 502, 515-16 (2009).
---------------------------------------------------------------------------
Changes: None.
General Comments on the Financial Value Transparency Framework
(Sec. Sec. , 668.43, 668.401, 668.402, 668.403, 668.404, 668.405,
668.406, 668.407, 668.408, and 668.409)
General Support and Opposition
Comments: We received many comments expressing support for the
financial value transparency framework as a means of protecting
students and improving higher education outcomes. Commenters urged
prioritizing the establishment of the program information website so
that students have clear information about the institutions and
programs they are attending or considering attending. These commenters
supported efforts that would help students identify ``high-debt-
burden'' and ``low-earning'' programs and urged the Department to keep
these strong transparency provisions in the final rule to protect
students and taxpayers. Several commenters argued that this information
would allow students to make informed decisions about their education.
Discussion: We thank the commenters for their support. Under Sec.
668.43(d)(1), the Department will provide, through a website hosted by
the Department, program-level information on the typical earnings
outcomes for graduates and their borrowing amounts, cost of attendance,
and sources of financial aid for all programs where it can be
calculated to help students make more informed choices. We agree that
this information will help students make more informed choices and
allow taxpayers and other stakeholders to better monitor whether public
and private resources are being well used.
Changes: None.
Comments: Many commenters supported the proposed transparency
framework as a way to provide prospective students with relevant
information about the programs and professions they may wish to pursue.
Commenters noted that it was often difficult for students to understand
total college costs in comparison to employment rates and post-graduate
earnings and said that the information provided in the transparency
framework could fill in some information gaps for students. Some
commenters believed that this platform would, over time, encourage
students to select the institutions and programs that are more likely
to meet their needs and standards. Other commenters noted that
interests in certain job fields drive career paths, so some students
would not be interested in information about different programs that
offered higher pay.
[[Page 70020]]
Discussion: We appreciate the comments recognizing the benefits to
students and families that the increased transparency framework will
provide in conjunction with information institutions provide about
programs and services they offer.
Changes: None.
Comments: One commenter asserted that we need more empirical
evidence that publishing data will change student outcomes. Other
commenters suggested that interests in certain job fields drive career
paths, so some students would not be interested in information about
different programs that offered higher pay.
Discussion: The Department discussed the substantial evidence base
around the role of transparency and student choice in postsecondary
education in the NPRM and in the ``Outcome Differences Across
Programs'' section of RIA.\102\ Information does not always sway
student choice, but research suggests that providing students with
comparable, timely information from a trusted source can influence
their decisions.\103\ The Department believes that the financial value
transparency framework serves as an evidence-based approach to provide
relevant, trusted, and timely information for student decision-making.
---------------------------------------------------------------------------
\102\ 88 FR 32300, 32322 (May 19, 2023).
\103\ Steffel, Mary, Kramer, Dennis A. II, McHugh, Walter &
Ducoff, Nick (2019). Information Disclosure and College Choice. The
Brookings Institution (<a href="http://www.brookings.edu/wp-content/uploads/2020/11/ES-11.23.20-Steffel-et-al-1.pdf">www.brookings.edu/wp-content/uploads/2020/11/ES-11.23.20-Steffel-et-al-1.pdf</a>).
---------------------------------------------------------------------------
We understand that some students may be committed to pursuing a
particular field and may not be swayed by information about other
fields. But as the data in this RIA demonstrate, there are vast
differences in earnings and debt outcomes for programs with the same
credential level and field, and we anticipate that students already
committed to a particular degree will benefit from being able to find
programs with the best outcomes.
Changes: None.
Comments: A few commenters argued that the certain terms used in
the NPRM to label programs that do not pass the D/E rates or EP
measures could mislead students or misrepresent other positive aspects
of the program. Commenters identified terms like ``high debt burden''
or ``low earning'' as overly pejorative.
Discussion: The D/E rates thresholds are based on research into how
much debt service payments are affordable based on an individual's
earnings. Programs do not meet the D/E criteria when a program's
discretionary D/E rate is above 20 percent, and the annual D/E rate is
above 8 percent. As discussed in the NPRM, the discretionary D/E rate
threshold is based on research conducted by economists Sandy Baum and
Saul Schwartz,\104\ and the annual D/E rate threshold is grounded in
mortgage-underwriting standards. While the rules do not require the
Department to use particular labels to describe the outcomes of
programs under the D/E rates measure, we intend to use clear
descriptive language to communicate these outcomes to students. For
example, informing students that such programs are ``high debt burden''
provides context for the amount of debt that the student will take on
relative to their early career earnings.
---------------------------------------------------------------------------
\104\ Baum, Sandy & Schwartz, Saul (2006). How Much Debt is Too
Much? Defining Benchmarks for Managing Student Debt (<a href="http://eric.ed.gov/?id=ED562688">eric.ed.gov/?id=ED562688</a>).
---------------------------------------------------------------------------
Similarly, the EP threshold is based on the median earnings of high
school graduates in the labor force in the institution's State. When
the median earnings for graduates from a postsecondary program are
lower than this threshold, terming the program, for example, ``low
earning'' is appropriate. The Department views these terms as examples
of clear and transparent descriptors for potential students; we believe
that less direct phrasing would make it harder for students to
interpret the information. However, while the Department believes that
students should be informed about the consequences of their choices in
programs, we will consider adding language to the Department's program
information website noting that the debt and earnings outcomes of
programs are a subset of the myriad of factors students may consider
important in deciding where to attend.
Changes: None.
Comments: One commenter suggested that the Department and the
stakeholder community further discuss the application of the D/E rates
and earnings premium metrics to all programs at all institutions before
addressing the issue of student acknowledgments. This commenter noted
that the required reporting of data will add costs and burden to
institutions, particularly under-resourced institutions.
Discussion: The Department disagrees that the decision to apply
financial value transparency metrics to programs across sectors and
credential levels requires any further discussion. Because students
consider both GE and non-GE programs when making postsecondary
enrollment choices, providing comparable information for students would
help them find the program that best meets their needs across any
sector. As discussed under ``Reporting'' above, while we are sensitive
to the fiscal and logistical needs of institutions, we maintain that
any burden on institutions to meet the reporting requirements is
outweighed by the benefits of the transparency and accountability
frameworks of the regulations to students, prospective students, their
families, and the public.
Changes: None.
Financial Outcomes and Other Outcomes
Comments: Many commenters posited that although economic mobility
is an important factor to many students, the value of higher education
extends beyond purely financial benefits and the Department should
recognize on the program information website, and on related warnings
and acknowledgments, that there are many ways to measure the value of
postsecondary education, such as increased civic participation and
engagement; better health and well-being; increased sense of work
engagement; lower reliance upon social safety-net programs; decreased
rates of incarceration; decreased risk of homelessness; increased
personal security; improved social status; and sense of personal
achievement. Commenters said that focusing on program earnings for all
programs promoted a false equivalency that all educational programs
should be measured on this basis. Some other commenters noted earnings
may not fully capture the value of benefits, such as health insurance,
and job amenities, such as a flexible schedule.
One commenter further cited a study \105\ highlighting additional
individual and societal benefits of higher education, such as increased
likelihood of employment; improved health choices; increased
volunteerism; increased neighborhood interactions and trust; and
intergenerational benefits.
---------------------------------------------------------------------------
\105\ Trostel, Philip (2015). It's Not Just the Money: The
Benefits of College Education to Individuals and to Society. LUMINA
Foundation (<a href="http://www.luminafoundation.org/files/resources/its-not-just-the-money.pdf">www.luminafoundation.org/files/resources/its-not-just-the-money.pdf</a>).
---------------------------------------------------------------------------
Noting the numerous non-pecuniary benefits of postsecondary
education, several commenters expressed concern that the nature of the
D/E rates and EP measures is too simple to adequately reflect the full
value of an education and one commenter opined that measuring a
program's value based solely on the D/E rates and EP measures would be
arbitrary and capricious. Many commenters noted that the D/E rates
measure is not the only metric that can be used to assess the value of
[[Page 70021]]
postsecondary programs and suggested that things like holistic value,
social impact, import of work, or long-term economic value could also
be used to measure the value of programs.
Discussion: The Department is not attempting to assess the full
value of the education that programs provide based only on their debt
and earnings outcomes through the D/E rates and EP measures. The
Department recognizes that not all of the benefits of a postsecondary
education are measurable or captured by debt and earnings, but low
earnings or high debt burdens can significantly impact even those
students who benefitted in other ways from their programs.
Further, while the Department agrees there are aspects of job
quality that are distinct from earnings, we believe that earnings,
which unlike non-monetary compensation can be calculated consistently
for most graduates through administrative data sources, is the best way
to capture the employment outcomes of program graduates for purposes of
implementing the gainful employment statutory requirement. For
instance, in most cases non-monetary compensation does not aid in
assessing the ability of graduates to afford repayment of student debt.
The financial value transparency framework aims to provide
transparency to students about dimensions of the financial consequences
of attending postsecondary programs. In particular, these measures will
be used to convey information to students about the typical costs,
borrowing, and earnings outcomes for students who graduate from a
program, and whether typical students who complete the program end up
with high-debt-burdens, and therefore may be at elevated risk for
associated adverse borrower outcomes. On the Department's program
information website, a program's outcomes under the D/E rates and EP
metrics will be provided to students alongside other financial value
information to help students understand how the program may help in
achieving their goals. As a steward of taxpayer funds charged with
ensuring the proper administration of the title IV, HEA programs, the
Department seeks to require that students are aware of such information
before they enroll in programs with high-debt burdens. For non-GE
programs, we do not limit aid or eligibility for such programs but
allow students to decide whether, upon considering this information,
the program has value to them.
Change: None.
Comments: Commenters also suggested that focusing on relative
education debt could harm some students by encouraging them to limit
education loan borrowing by sacrificing basic needs like food and
housing or promoting some type of employment even when attending school
full time.
Discussion: We believe it is reasonable for students to know what
the average education debt and earnings are for an educational program
and believe that this information can be considered along with many of
the other factors suggested by the commenters. The information the
Department will present is not describing debt as bad or to be avoided.
Rather, it is giving students information about how affordable their
debt payments will be based on the typical earnings of students in
their programs. Students deserve to be aware of this information, and
institutions have the capacity to control their pricing to avoid
subjecting their students to unaffordable debts.
Changes: None.
Potential Impacts on Lower Earning Fields
Comments: Commenters suggested that focusing on program earnings
takes a narrow view that higher education is primarily about securing a
job and misses the value of a liberal arts education and the value to
society from those graduates. Some commenters emphasized that many
students pursue careers in fields that help people such as social work,
counseling, leadership, teaching, and a variety of cosmetology programs
including hairstylists and estheticians. Nursing was another field
where commenters noted that some institutions prepare instructors and
practitioners to work in health care services where some jobs would not
produce high earnings. Commenters also suggested that teaching programs
should be excluded from application of the GE program accountability
framework.
Discussion: The Department does not agree that providing
information about education debt and average earnings for program
graduates to students and families ignores the value of programs that
may have lower earnings outcomes. Again, the Department is attempting
to make debt and earnings information available to students and
families on a comparable basis for programs so that they can use it to
support the different career choices that may be under consideration,
or to find a program within a particular field that is most beneficial
to them.
As we demonstrate in Table 4.11 in the RIA, most programs in most
fields pass the D/E rates measure, including programs that provide
training for occupations in healthcare. In healthcare (Health
Professions and Related)--the program cited by the commenters--8.2
percent of GE programs did not pass the D/E rates or the EP measure and
2.0 percent of non-GE programs did not pass the D/E rates or the EP
measure. Similarly, education training programs (i.e., programs with a
two-digit CIP code of 13) are less likely to fail the D/E rates or EP
measure than other programs. We note that teaching programs that
successfully place their students in teaching jobs are unlikely to fail
to meet the earnings premium criteria. For example, data from the
National Education Association's Teacher Salary Benchmark Report
indicates that among reporting school districts, approximately 76
percent of teachers worked at schools that offered a starting teaching
salary of at least $40,000.\106\ Even States with lower salaries have
average starting salaries at least $5,000 higher than the State's EP
threshold.\107\
---------------------------------------------------------------------------
\106\ See Nat'l Ed. Ass'n (2022). Teacher Salary Benchmarks
(<a href="http://www.nea.org/resource-library/teacher-salary-benchmarks">www.nea.org/resource-library/teacher-salary-benchmarks</a>).
\107\ See Nat'l Ed. Ass'n (2022). Teacher Salary Benchmarks
(<a href="http://www.nea.org/resource-library/teacher-salary-benchmarks">www.nea.org/resource-library/teacher-salary-benchmarks</a>).
---------------------------------------------------------------------------
The Department fundamentally disagrees that ignoring the financial
implications of students' college choices is an acceptable or necessary
strategy to ensure that students pursue jobs in critical fields to
society.
Changes: None.
Comments: Some commenters contended that publication of the
financial value metrics could limit access to, or discourage students
from enrolling in, arts and performing arts programs. These commenters
stressed that these careers should be available to all and not just to
affluent students who can attend without Federal financial aid.
Discussion: The Department believes that students of arts programs
will benefit from consistent information about the typical debt and
earnings experienced by a program graduate, particularly if the D/E
outcomes for program graduates are in a range associated with high
likelihood of student loan default. For non-GE programs, receiving this
information does not preclude their ability to attend the program--it
simply alerts them to the potential risk based on the program's
students' outcomes. Approximately 12 percent of arts programs are GE
programs.
Arts programs that fall under GE regulation have a failure rate
that is similar to GE programs overall. According to the Program
Performance Data (PPD) described in Table 4.11 of
[[Page 70022]]
the RIA, 5.3 percent of all GE programs fail due to D/E, EP, or both.
Among the 1,042 GE arts programs (programs with a two-digit CIP code of
50), a similar share, 5.5 percent, have a failing status. Among the
7,518 arts programs that are non-GE programs, failure rates are
slightly higher than for programs overall, but still relatively low.
Using the PPD, 1.2 percent of all non-GE programs fail debt-to-earnings
(DTE), EP, or both, and 3.7 percent of arts programs fail.
Although commenters acknowledged that arts careers are financially
undercompensated relative to other career paths, federally aided
students enrolled in arts programs tend to come from backgrounds
similar to students enrolled in other programs, indicating that, among
federally aided students, students from economically disadvantaged
backgrounds are not currently dissuaded from pursuing a career in the
arts. For example, the share of students who are Pell recipients within
arts programs is broadly similar to the share of recipients overall
across programs (Table 1.1). Institutions that are concerned that
financial transparency will dissuade students from lower-income
backgrounds from pursuing arts degrees could take steps such as
packaging additional aid for students pursuing arts programs. This
would decrease the risk of a high DTE and potentially mitigate the
effect of lower typical salaries in the first few years of an arts
career.
Table 1.1--Mean and Median Pell Share, Across Programs
--------------------------------------------------------------------------------------------------------------------------------------------------------
All programs Arts programs (CIP2 = 50)
-----------------------------------------------------------------------------------------------
Number of Number of
Mean (%) Median (%) programs Mean (%) Median (%) programs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Credential Level: Undergraduate......................... .............. .............. 18,033 .............. .............. 453
(UG) Certificates....................................... 53 60 .............. 45 40 ..............
Associate........................................... 61 67 25,807 64 69 1,248
Bachelor's.......................................... 38 36 47,643 41 40 3,792
-----------------------------------------------------------------------------------------------
Total........................................... 47 50 91,483 47 48 5,493
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: 2022 Program Performance Data.
Changes: None.
Comments: Some commenters expressed concern that the focus on debt-
to-earnings and earnings could lead students and prospective students
to prioritize salary over public service. By publishing these data and
possibly categorizing certain programs as ``low value,'' we may
discourage students from pursuing careers that are less lucrative but
that have substantial value, such as careers in government or the
nonprofit sector.
Discussion: The Department acknowledges the concern that students
may be dissuaded from pursing programs, and ultimately, careers, that
are primarily in the public sector or with nonprofit organizations.
National data from the American Community Survey (ACS) on earnings by
sector show, however, that the typical associate or bachelor's degree
graduate working for government or a nonprofit substantially out-earns
similarly aged workers with only a high school credential (Table 1.1).
We estimate that a government worker with an associate degree has
median earnings more than $13,700 higher than the overall median
earnings for those with a high school diploma. A government worker with
a bachelor's degree has earnings that are more than $19,100 higher.
Those working in the nonprofit sector earn around $7,100 (associate)
and $15,200 (bachelor's degree) more relative to similar workers with a
high school diploma.
Table 1.2--Median Earnings, Workers in Labor Force Age 25-34
----------------------------------------------------------------------------------------------------------------
Federal,
Credential Overall Private sector state, or Nonprofit
local govt. sector
----------------------------------------------------------------------------------------------------------------
High School or Equivalent....................... $25,453 $25,569 $31,961 $21,582
Associate Degree................................ 32,049 31,961 39,200 32,580
Bachelor's Degree............................... 45,811 48,870 44,638 40,725
Graduate Degree................................. 49,639 52,147 47,941 45,000
----------------------------------------------------------------------------------------------------------------
Source: American Community Survey, 2019, 5-year estimates.
These data indicate that workers within a given degree level tend
to have relatively similar earnings across private sector, government,
and nonprofit employers. And for those with an associate degree,
employment within a Federal, State, or local government yields higher
median earnings than employment in the private sector. While working in
the private sector is more lucrative, at the median, for bachelor's
degree and graduate degree holders, these differences are much smaller
than the difference relative to the earnings premium threshold at the
national level.
Changes: None.
Comments: A few commenters expressed concern that publication of
financial value metrics could deter students from graduate education.
Given differences in student loan eligibility and available Federal
aid, commenters suggest that the proposed financial value metrics do
not align well with the goals and earnings trajectories of those who
enroll in graduate education.
Discussion: The Department aims to provide students with accurate
information to help inform their choices. We acknowledge that some
students might decide that not attending school might be the best
option after obtaining the information.
Graduate students are eligible to borrow up to the cost of
attendance for their program, while undergraduates are subject to
substantially lower limits on borrowing, depending on their enrollment
level and status as a
[[Page 70023]]
dependent or independent student. Because of the increased eligibility
for student loans and their generally higher earnings outcomes,
graduate programs that do not pass the GE thresholds typically fail the
D/E standard of the GE rule, rather than the EP.
The Department believes that the D/E metric is valid across both
undergraduate and graduate programs. As noted above, few graduate
programs have median earnings below the typical high school student,
but many programs have very high debt levels due to the lack of loan
limits. This can make debt unaffordable even on a middle-class salary.
Moreover, from a taxpayer perspective, as shown in Table 2.10 of the
RIA, D/E is highly correlated with the taxpayer subsidy on student
loans--if debt is high relative to earnings, it is unlikely a borrower
will fully payoff their loans while on an income driven repayment plan.
The Department also notes aspects of the rule that are favorable to
graduate programs. First, the debt used in the actual D/E calculations
will be capped at the total net cost for tuition, fees, and books. This
cap particularly affects graduate programs, as many graduate students
borrow substantially for living costs in addition to direct costs of
the program. As we note in the RIA, we do not have data reported by
institutions to estimate directly how this cap will affect the share of
programs that pass the D/E rates. An analysis by New America, however,
suggests that the debt cap might reduce the number of graduate programs
projected to fail in the RIA substantially by about 50 percent.\108\
Because institutions have more control over direct program costs, some
institution concerns about graduate financial value metrics will likely
be mitigated. Furthermore, in the D/E rates calculation, graduate debt
is amortized over a 15-year repayment period for master's degree
programs and over a 20-year period for doctoral and first professional
degrees. The use of a longer repayment period acknowledges the
possibility that long term earnings are higher in proportion to
earnings measured 3 years after graduation, the potentially larger
amounts of debt that some graduate students may take on and allows for
smaller annual payments based on a longer repayment period. We address
additional concerns relevant to graduate programs, such as licensing
and residencies for graduate programs that may result in lower initial
earnings due to externally imposed constraints, in other sections of
this preamble.
---------------------------------------------------------------------------
\108\ See Caldwell, Tia & Garza, Roxanne (2023). Previous
Projections Overestimated Gainful Employment Failures: Almost All
HBCUs & MSI Graduate Programs Pass. New America (<a href="https://www.newamerica.org/education-policy/edcentral/ge-failures-overestimated/">https://www.newamerica.org/education-policy/edcentral/ge-failures-overestimated/</a>).
---------------------------------------------------------------------------
Changes: None.
Comments: Some commenters noted that many jobs in the entertainment
industry may be impacted by the financial value and transparency
regulations, given that a number of students in those fields are
dependent upon Federal education assistance. The commenters suggested
that those students may become more restricted in their opportunities
to pursue careers in performing arts, music and education compared to
students from more affluent families. Commenters noted that in general,
the United States provides less support for students of the performing
arts compared to other countries, and further opined that the lower
wage for these jobs is beyond the control of the institutions providing
those programs, notwithstanding the contributions those jobs make
toward creativity and societal wellbeing.
Discussion: We recognize that educational programs can provide long
term value and enrichment to students in multiple ways, and that some
student may be interested in arts and entertainment careers for non-
pecuniary reasons. We nonetheless note that the education debt and
program earnings experienced by program graduates at specific
institutions are a significant up-front consideration for any student
to consider. Students looking at particular programs offered at
multiple institutions may also consider the relative education debt and
program earnings when selecting an institution. Institutions may also
use the information about average education debt and earnings to
consider program changes that would better serve students entering into
careers with relatively large education debt compared to the near-term
earnings. We appreciate the commenters' concerns about the level of
support for performing arts relative to other countries, but
respectfully note that such broader issues of the economic and social
value of performing arts are beyond the scope of this rule.
Changes: None.
Data Concerns and Other Information or Metrics
Comments: Several commenters suggested including measures of
student satisfaction among the other measures listed in Sec.
668.43(d)(1)(ii) to include on the program information website to
provide context for the financial value measures.
Discussion: We recognize that there are many factors students
consider when choosing to enroll, or continue, in a program, and also
that education can confer many benefits beyond financial value,
including satisfaction with the program. However, we are here focused
on factors that affect students' financial well-being, and the return
on the title IV, HEA financial investment. Low earnings and high debt
burdens can negatively affect students who might benefit in other ways
from their programs. More generally, measures of student satisfaction
do not exist for all programs and the Department has no way of
collecting such data in a systematic fashion at present.
Changes: None.
Comments: A few commenters noted that program-level graduation
rates could have a substantial impact on financial value measures. They
noted that a program that graduates a small share of enrolled students
may have strong financial value measures, but overall financial value
results may be poor for those who never completed the program. The
commenters suggested that we provide information on the likelihood of
completing the program as important context for the financial value
metrics.
Discussion: The financial value metrics measure the earnings and
debt only for those who complete a given program. The Department
believes that these measures best represent the outcomes for a student
who naturally anticipates to complete a given program. Enrolled
students who do not complete could have outcomes that are worse overall
than those for completers, but this is not necessarily the case. For
example, non-completers could leave a program because they were offered
a job that pays more than they anticipate they would earn if they
completed their program. Further, those who do not complete a program
are likely to leave with less debt than those who do, potentially
lowering D/E measures.
At present, program-level graduation rates are not consistently
measured or collected by the Department. Measurement of program
graduation rates raises several measurement challenges.\109\ For
example, some bachelor's degree programs do not formally consider a
student part of a program or major until their sophomore or junior
year, which could substantially skew the graduation rate relative to a
program which counts students starting from their freshman
[[Page 70024]]
year. Still, the Department strongly agrees with the importance of
holding institutions accountable for program completion and will
explore development of accurate measures. The rule includes completion
rates at the institution or program level among a set of important
contextual information that may be included on the program information
website.
---------------------------------------------------------------------------
\109\ Blagg, Kristin & Rainer, Macy (2020). Measuring Program-
Level Completion Rates: A Demonstration of Metrics Using Virginia
Higher Education Data. Urban Institute: Washington, DC
(<a href="http://www.urban.org/sites/default/files/publication/101636/measuring_program-level_completion_rates_1_3.pdf">www.urban.org/sites/default/files/publication/101636/measuring_program-level_completion_rates_1_3.pdf</a>).
---------------------------------------------------------------------------
Changes: None.
Comments: A few commenters requested that the Department include on
the program information website information on cohort default rates, or
a program's loan repayment rates, as additional context regarding a
student's ability to manage or repay their debt.
Discussion: We agree that a program's loan repayment rate may be
important information for students or taxpayers, and we note that this
information was included in the list of proposed information under
Sec. 668.43(d)(1).
Although the cohort default rate (CDR) is an important measure of
institutional accountability in ensuring that students do not
experience exceptionally high default rates after leaving a program, an
overall CDR does not measure outcomes of a given program. Moreover,
graduate PLUS loans are not included as part of the CDR calculation, so
these rates do not capture borrowers' outcomes even for broad sets of
graduate programs. The Department will carefully consider what borrower
outcome information will provide students with the clearest sense of
the financial risks of their program choices, including whether
institution level measures may be appropriate to provide where program
level measures may be unavailable.
Changes: None.
Comments: Several commenters noted that high percentages of their
career program graduates work in the fields associated with their
training, unlike many students with associate degrees from public and
nonprofit institutions that get jobs in unrelated fields. Commenters
also noted that other jobs such as sales often start with lower
salaries that increase over time as they learn their trades on the job.
Discussion: The regulations do not track earnings by source but
provide some measure of the average education debt and average earnings
that program graduates have. Graduates of career training programs who
work in those fields may experience higher earnings than program
graduates from nonprofit and public institutions who work in unrelated
fields. The regulations will provide students considering either type
of program with information about the education debt and earnings
associated with those programs to support them making better informed
choices when they enroll.
Changes: None.
Comments: One commenter asserted that 4-year degree programs can
charge students higher prices despite having no industry connections. A
few other commenters noted that many students in 4-year programs are
unable to get jobs, while students in shorter career and technical
education (CTE) programs (which cost less) are able to get jobs.
Discussion: We agree that CTE programs are important. By ensuring
that programs subject to the GE program eligibility requirements,
including CTE programs, prepare students for gainful employment in a
recognized occupation, we expect that the GE program accountability
framework will drive improvements in CTE programs that are not
providing students with earnings that allow them to afford their debt
or leaving them better off than if they had not pursued a postsecondary
credential. For 4-year programs that are not subject to the GE program
accountability framework, students will be able to obtain critical
information about their financial value, including their costs and
student debt and earnings outcomes, to inform their education decision
making.
Changes: None.
Comments: Some commenters suggested that the Department should play
a role identifying unique missions of institutions, such as
historically black colleges and universities and Tribal colleges and
universities because of the social and cultural impacts these
institutions provide as non-financial value.
Discussion: Under Sec. 668.43(d)(1), the Department will provide,
through a website hosted by the Department, program-level information
on the typical earnings outcomes for graduates and their borrowing
amounts, cost of attendance, and sources of financial aid to help
students make more informed choices and allow taxpayers and other
stakeholders to better monitor whether public and private resources are
being well used. Nothing in the regulations precludes institutions from
supplementing the financial value information provided on the
Department website with additional information about the institution
and its programs, including information for students and families about
their missions and values. However, the Department website will be
focused on financial value, consistent with the Department's obligation
to administer the title IV, HEA financial assistance programs.
Changes: None.
Comments: A few commenters noted that the debt and earnings data
used in the financial value transparency metrics do not precisely align
with those measures presented in the College Scorecard.
Discussion: The financial value transparency metrics are designed
for accountability purposes (with respect to GE programs) as well as
for transparency (with respect to GE and eligible non-GE programs).
Because these data serve different, though complementary, purposes the
metrics are not quite the same as those in the College Scorecard
although there are strong correlations between the information in the
two datasets. For example, median earnings in this rule, similar to the
2014 Prior Rule, is calculated as the median earnings among all program
completers including the ``zeros''--i.e., individuals successfully
matched in the list of program completers who have no earnings from
employment. Especially for career training programs this measurement
choice captures whether students find employment as a measure of
program success. Similarly, median debt under this regulation is
calculated by capping individual borrowing amounts at the net direct
costs charged by the institution. This attempts to isolate student
borrowing linked to factors more directly controlled by institutions.
Still, broader measures of debt can be calculated and used for
transparency purposes. The Department will carefully consider how to
present information to students to avoid potential confusion.
Changes: None.
General Comments on the GE Program Accountability Framework (Sec. Sec.
600.10, 600.21, 668.91, 668.601, 668.602, 668.603, 668.604, 668.605,
and 668.606)
General Support and Opposition
Comments: Many commenters expressed support for building on the
2014 GE Prior Rule, including the addition of the earnings premium
metric. These commenters believed that this metric would ensure that
students only enroll in programs that would result in them being
gainfully employed upon completing the program. Commenters also
supported the inclusion of the D/E rates metric, arguing that this
measure would protect taxpayers and students. Some commenters suggested
that because of the rule, students will shift from enrolling at low-
performing programs to programs with better outcomes, including
shifting across sectors, similar
[[Page 70025]]
to what happened when institutions with high cohort default rates lost
eligibility to participate in the Federal student aid programs.
Discussion: We thank the commenters for their support.
Changes: None.
Comments: One commenter asserted that these regulations would help
to protect students from taking on high levels of debt to obtain
credentials with little to no value. The commenter also contended that
there should be greater consequences for schools that commit fraud.
Discussion: We agree there should be greater consequences for
schools that commit fraud. The Department's Office of the Inspector
General (OIG) identifies and investigates fraud, waste, abuse, and
criminal activity involving Department funds. Where we believe it is
warranted, we can refer a situation to the OIG, which conducts criminal
and civil investigations. Additionally, members of the public may
report suspected fraud, waste, abuse, or criminal activity--including
fraud or misuse of Federal student aid funds. The OIG maintains a
telephone hotline and an online form to facilitate submission of such
reports.
While these regulations do not replace other robust Department
efforts aimed at ensuring program compliance and program integrity, the
rule should make predatory behavior less attractive and less lucrative
if poorly performing GE programs are not eligible to participate in
title IV, HEA.
Changes: None.
Comments: Many commenters supported the GE rule because they
believe it will help stop predatory recruitment practices that
specifically target marginalized and underserved communities, including
people of color, people with low socioeconomic status, single parents,
and veterans. These commenters claimed that programs at these predatory
schools have low graduation rates, high student debt loads, high
student loan default rates, and higher tuition than comparable programs
at State and community colleges.
Several other commenters expressed support for the GE
accountability provisions, noting that most borrower defense loan
discharges have been for students who attended for-profit institutions,
and said that most accountability measures should focus on the
institutions where large costs to the taxpayers have been incurred.
Commenters noted that many completers from some for-profit institutions
have incomes that would qualify them to make zero payments under the
Department's recently proposed income-driven repayment plan and create
additional costs for taxpayers.
Discussion: We thank the commenters for their support and agree the
GE rules apply to programs where students need protection.
Changes: None.
Purpose
Comments: Many commenters noted that the EP and D/E metrics do not
capture all the ways that programs might be valuable for students and
society, and thought the measures too narrowly focused on financial
outcomes.
Discussion: In the GE program accountability framework, we use the
EP and D/E metrics to assess whether programs are preparing students
for gainful employment, consistent with statutory eligibility
requirements. But, the use of particular performance metrics pursuant
to the GE provisions of the HEA and the Department's rulemaking
authority is not a commentary on the values that students and others
may place on postsecondary education. As we demonstrate in Table 4.11
of the RIA, the majority of programs in most fields do not lead to high
debt burdens or low earnings. As a result, we do not expect the rule to
deprive students of postsecondary options that offer the nonfinancial
benefits of greatest importance to them.
We underscore that the rule sets minimum standards of performance
for career training programs, and for informing students in non-GE
programs about potential financial risk. It does not attempt to
distinguish among or rate programs based on their earnings above these
standards beyond providing students with information. As such, we
expect that programs meeting these minimum thresholds of financial
outcomes for their students will still need to demonstrate how they
help students in pursuing other goals that may be important to them.
Changes: None.
Comments: A few commenters suggested that the proposed GE program
accountability framework will not fix the current systemic problems.
Some commenters proposed that, rather than targeting so-called ``low
value programs,'' we should address systemic issues contributing to the
student debt crisis. For example, these commenters suggested that we
provide adequate funding and resources to public institutions,
implement more affordable tuition models, and expand financial literacy
programs.
Discussion: The Department agrees that some systemic changes are
needed to address the student debt crisis. And, in a variety of
initiatives, the Department is responding to that crisis. For example,
the Department recently published a new rule on IDR plans for student
loans. Notwithstanding the importance of addressing systemic issues,
the Department is charged with implementing and enforcing the HEA
limits on title IV eligibility for GE programs and has concluded that
programs that leave students unable to pay off their loans, or with
earnings no greater than a comparable high school graduate, are not
meeting the statutory requirements for title IV, HEA funding. The final
rule will make meaningful strides in deterring students from attending
programs that leave them with unaffordable debt and no improvement to
their earnings. As noted in Tables 4.25 and 4.26 of the RIA, most
students have available many alternative programs that do not fail the
metrics, and these programs are very likely to lead to higher earnings
and lower debt. Therefore, we expect the rule will result in students
attending programs that require less borrowing or provide a better
financial value in that they will lead to higher earnings relative to
the amounts borrowed.
Changes: None.
Comments: Some commenters suggested that it would be more effective
to limit borrowing in low-performing programs rather than to remove all
Federal funding, noting that this would still protect students from
high educational debt without limiting the types of programs that are
available for them to pursue their passions and career goals in fields
that may not be high-earning. One commenter noted that students have
differing career objectives and was of the opinion that the Department
and institutions offering those programs should strike a balance to
keep these options open for students, suggesting that career counseling
and accurate information could support those outcomes and a diverse
workforce. Other commenters said that without striking a more holistic
approach in the proposed regulations, there could be reductions in
program diversity and more limited student choices available. Providing
more quality assurance measures and a broader evaluation of other
factors, such as curriculum, student satisfaction and achievements,
were suggested as additional components to use with the financial-value
measures in the proposed regulations. Commenters also suggested the
Department should work with the higher education community to develop
[[Page 70026]]
alternative metrics that speak to a more holistic spectrum of success
determinants.
Discussion: We agree there are many potential ways that students
might be shielded from unaffordable debt or programs that fail to boost
their earnings. Institutions are in the best position to limit their
costs and limit student borrowing for direct costs (the subset of
borrowing measured under the metrics in these regulations), and to
provide counseling and guidance to students in choosing programs that
prepare them for success. The Department's authority and ability to
monitor curriculum quality across programs is limited. As noted
elsewhere, these rules do not attempt to serve as a holistic measure of
program quality. Instead, they focus on setting minimum standards aimed
at ensuring that career training programs prepare students for gainful
employment, and, more generally, to protect students from programs that
may not improve their financial well-being.
Changes: None.
Comments: One commenter argued that controlling college costs
should not be part of the Department's role, but it should instead
concern itself with reining in lending. The commenter argued that the
Department should set aggregate loan limits for all students to current
limits for undergraduate students.
Discussion: The Department disagrees with the commenter that its
role does not include encouraging institutions to offer programs that
are financially valuable to students when the students' debt and likely
future earnings are taken into account. The Department also does not
have the ability to reduce aggregate loan limits for graduate students,
since those limits are established by statute.
Changes: None.
Comments: A few commenters argued that it is not a school's
responsibility to ensure that a student pays back their loans.
According to these commenters, that responsibility lies with the
borrower.
Discussion: The Department believes that pursuant to the GE
statutory requirement, career training programs should be held
responsible for ensuring the amount their students need to borrow is
reasonable relative to the earnings they might expect from the career
for which they are being trained. If programs set unreasonable tuition
levels that lead students to borrow more than they can afford to repay,
this puts borrowers at risk of default and adverse impacts on their
credit and puts the taxpayer at risk of having to bear the cost of the
loans. Under the D/E rates measure, institutions are not held
responsible for loan repayment outcomes. Rather, the D/E rates portion
of the transparency framework provides a means to assess whether debt
burdens are excessive given the typical earnings of program completers,
and whether students' labor market earnings improve relative to
students who do not pursue postsecondary credentials. The GE
accountability framework applies this metric as a condition of
eligibility for career programs. As addressed below, we believe the
compliance burden created by these regulations is modest and well
justified by the benefits expected from the rule.
Changes: None.
Scope
Comments: Several commenters stated that it is unfair to group
together all private and for-profit schools when there are only a few
``bad actors'' causing problems. They asserted that these GE
regulations will punish schools that are acting in good faith, and that
there should not be a ``one-size-fits-all'' solution to these bad
actors. They argued that different regulations should apply to for-
profit and nonprofit schools since their missions differ.
Other commenters viewed the distinction between GE and non-GE
programs as unclear, and argued that instituting sanctions for some
programs, but not for others, based on sector or credential type is not
appropriate. Commenters highlighted that an institution's tax status
was not a good reason to treat programs differently under the proposed
eligibility measures and voiced some concern that institutions with
failing programs could change their tax status to avoid being held
accountable under the eligibility provisions. Some commenters said the
proposed regulations were politically motivated to target the career
training programs and suggested that more emphasis should be placed on
removing Federal funds from programs that pushed false information or
promoted activism and political agendas. The regulations were described
by these commenters as an effort to quickly eradicate the proprietary
school sector instead of proposing a set of guardrails that would have
encouraged institutions to operate within that system.
Discussion: The GE accountability framework applies to gainful
employment programs through Sec. 668.601. Section 668.2 defines
``gainful employment program'' as an educational program offered by an
institution under Sec. 668.8(c)(3) or (d) and identified by a
combination of the institution's six-digit Office of Postsecondary
Education ID (OPEID) number, the program's six-digit CIP code as
assigned by the institution or determined by the Secretary, and the
program's credential level. This definition is consistent with sections
101(b) and 102(b) and (c) of the HEA. Under the HEA, institutions must
establish program-level eligibility for each ``program of training to
prepare students for gainful employment in a recognized occupation.''
\110\ GE programs include nearly all educational programs at for-profit
institutions of higher education, as well as non-degree programs at
public and private nonprofit institutions, such as community colleges.
With respect to comments that some institutions may change their tax
status to remove their programs from being subject to the eligibility
measures, applications to do so are reviewed independently by the
Internal Revenue Service (IRS) and the Department to make sure the
institution qualifies as a nonprofit entity.
---------------------------------------------------------------------------
\110\ 20 U.S.C. 1002(b)(1)(A)(i), (c)(1)(A). See also 20 U.S.C.
1088(b)(1)(A)(i), which refers to a recognized profession. For
further discussion in the NPRM, see 88 FR 32300, 32306-32311 (May
19, 2023).
---------------------------------------------------------------------------
In addition to being statutorily obligated to confirm whether GE
programs are eligible for HEA assistance, we believe that it is
appropriate to protect students in GE programs in all sectors, to help
protect students pursuing career training through such programs from
being left with unaffordable debt or with no improvement in their labor
market prospects beyond what they might have achieved without earning a
postsecondary credential. The GE accountability framework is based on
objective and evidence-based measures of student outcomes and, rather
than being a one-size-fits-all approach, its impact on institutions is
directly in proportion to the number of students they have enrolled in
programs that are not serving students well based on the D/E rates and
EP measures. The GE framework, applied as a measure of a program's
continuing title IV, HEA eligibility, will be similarly applied to all
GE programs, regardless of location or student demographics. GE
programs will be held to the standards for GE programs uniformly,
regardless of whether they are taught at public, proprietary, or
nonprofit private institutions.
The Department does not have authority to expand the definition of
a GE program to include non-GE programs. The financial value
transparency framework is the Department's attempt to account for
[[Page 70027]]
eligible non-GE programs, by providing students in such programs with
important information. Other statutory provisions apply more broadly to
GE and non-GE programs, and the Department will use the tools at its
disposal to protect students and improve outcomes. For example, we are
also addressing eligible non-GE programs through other Department
initiatives, such as the final rule we published last year on Change in
Ownership and Change in Control.\111\
---------------------------------------------------------------------------
\111\ 87 FR 65426 (Oct. 28, 2022).
---------------------------------------------------------------------------
Changes: None.
Comments: Several commenters asserted that the Department could
require the eligibility framework to apply to all programs, based upon
the Department's authority under 20 U.S.C. 1087d(a)(4) or 20 U.S.C.
1087d(a)(6), to include additional conditions necessary to protect the
interests of the United States when approving an institution's
participation in the Direct Loan programs. Other commenters said it is
arbitrary for the Department to treat comparable programs differently
and suggested that this different treatment violated a requirement in
the HEA that the Department's regulations must be uniformly applied and
enforced.
Discussion: We disagree with the commenters' suggestions and
criticism. The Department must use its statutory authority in ways that
accord with the various distinctions drawn in the HEA. The HEA
conditions eligibility of some, but not all, programs on preparing
students for gainful employment in a recognized occupation or
profession. The commenters did not explain how those HEA provisions
regarding GE programs fit with the commenters' suggested use of the HEA
provisions regarding program participation agreements. Likewise, we
disagree with commenters' arguments regarding uniformity in Department
regulations. The commenters did not identify a basis for their
recommended conclusion in 20 U.S.C. 1232(c), which refers to uniform
application and enforcement throughout the 50 States rather than across
program types. Nor did commenters identify any other statutory
provision that requires GE program regulations to bind non-GE programs.
In addition, linking the program accountability framework to the
Department's Direct Loan authority as the commenters suggest would
exclude programs that do not participate in the Direct Loan program.
The commenters may prefer that gainful employment results be expected
of non-GE programs, and we understand the policy considerations
associated with that issue, but we lack persuasive reasons to conclude
that the Department's regulations must adopt that position as a matter
of law.
Changes: None.
Comments: Several commenters stated that the proposed GE
Accountability framework fails to account for the significant and
multiple economic, social, and governmental differences between Puerto
Rico and the United States. For example, these commenters stressed that
Puerto Rico has no community college system and relies on proprietary
inst
[…truncated; see source link]Indexed from Federal Register on October 10, 2023.
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