Education Industry Reporter

Department of Education

Subscribe to Department of Education RSS Feed

Complaince Focus: Drug-Free Schools and Communities Act

By DLA Piper on Posted in Complaince Focus, Department of Education, Higher Education News

CONTRIBUTED BY
Patricia V. Edelson

One area that schools are often cited for is failure to comply with Part 86, Drug and Alcohol Abuse Prevention, of the Department’s General Administrative Regulations.  The purpose of the Drug and Alcohol Abuse Prevention regulations is to implement the Drug-Free Schools and Communities Act (“DFSCA”) amendments of 1989.  These amendments require that, as a condition of receiving Title IV funds, an institution of higher education must certify that it has adopted and implemented a Drug and Alcohol Abuse Prevention Program (“DAAPP”).

Generally schools are well versed in the requirements of the Institutional Security Policies and Crime Statistics, 34 CFR §668.46, but often fall short in developing a DAAPP. The program must be designed to prevent the unlawful possession, use, and distribution of drugs and alcohol on campus and at recognized events and activities.

In developing your Program make sure you include:

  • The institution’s “standards of conduct” that prohibit the possession, use, and distribution of drugs and alcohol;
  • Any possible sanctions for violations of Federal, state, and local drug and alcohol laws;
  • Any possible sanctions for violation of institutional policies;
  • Information on the health risks associated with the use of drugs and alcohol;
  • information on counseling, rehabilitation, and treatment programs available to students and employees, and;
  • A clear statement that the school will impose sanctions on students and employees who violate drug and alcohol laws, ordinances, and/or institutional policies.

Make sure you have procedures to annually distribute your DAAPP to all current students and employees.

You can easily get information on counseling, rehabilitation, and treatment programs that are available in your area by exploring local Community Services. The information you find can be made available to students and staff and will comply with this requirement.

Another important requirement that schools often fail to fulfill is conducting a biennial review to determine the effectiveness of their Program. The biennial review report and any supporting documents must be made available to the Department upon request. You must also ensure consistent enforcement of applicable laws, ordinances, and institutional policies against violators.

Department of Education to Hold Budget Briefing Today

By Dennis Cariello on Posted in Appropriations and Budget Issues, Department of Education, Higher Education News, Higher Education Policy, K-12 News

CONTRIBUTED BY
Dennis Cariello

Earlier today, the White House released a budget overview and the budget tables for the President’s Fiscal Year 2014 Budget Request. At 1:30 on April 10th, the U.S. Department of Education will hold a briefing to discuss the President’s education requests. The briefing will be held in the Department’s Auditorium in the LBJ Building, 400 Maryland Ave. SW, in Washington DC.  

The briefing will also be live streamed for those outside of the DC area.

UPDATE: Here is the Department of Education portion of the budget.

Two ideas of note for higher education a higher education Race to the Top and introducing a market interest rate for student loans.  Senators Alexander, Burr and Coburn introduced a bill yesterday that would accomplish the student loan reform proposed by the President in the budget, although there may be a difference on the exact terms of the interest rate – so perhaps there is a consensus on this proposal.  The Race to the Top proposal appears to be the proposal raised in last year’s budget:

A Higher Education Race to the Top (RTT) Competition.
Building on the success of this program in both early education and k-12 education, the Department of Education will shift the focus of RTT in 2014 to promoting comprehensive reforms in postsecondary education. The Budget provides $1 billion to support competitive grants to States that commit to driving comprehensive change in their higher education policies and practices, while doing more to contain their tuition and make it easier for students to afford a college education. This change establishes RTT as a fund that promotes  system-wide reform efforts and can shift its focus each year to support the most promising and comprehensive solutions to strengthen public education and improve outcomes from preschool through college.

***

Makes Student Loan Interest Rates More Market-Based.

Under current law, interest rates on subsidized Stafford loans are slated to rise this summer from 3.4 percent to 6.8 percent. At a time when the economy is still recovering and market interest rates remain low, the Budget proposes a cost-neutral reform to set interest rates so they more closely follow market rates, and to provide students with more affordable repayment options. The rate on new loans would be set each year based on a market interest rate, which would remain fixed for the life of the loan so that student borrowers would have certainty about the rates they would pay. The Budget also expands repayment options to ensure that student borrowers do not have to pay more than 10 percent of their discretionary income on loan payments.

Department of Education Posts New Schedule for Release of Draft Cohort Default Rates

By Dennis Cariello on Posted in Cohort Default Rate, Department of Education, Financial Aid (Loans & Grants), Higher Education News

CONTRIBUTED BY
Dennis Cariello

Earlier today, the Department of Education issued a electronic announcment notifying the public of the new schedule for releasing the Draft Cohort Default Rates. On March 18, 2013, the Department will release the FY 2011 2-year draft cohort default rates. On March 25, 2013, the Department will release the FY 2010 3-year draft cohort default rates. These rates are released to institutions of higher education (as well as lenders and guaranty agencies). Final rates are released in September.  On February 3, 2013, the Department announced dates in February for the release of the Draft Cohort Default Rates.  On February 20, 2013, however, the Department postponed the release of the Draft Rates.

Carmel Martin Leaves Department of Education for Center for American Progress

By Dennis Cariello on Posted in Department of Education, Higher Education News

CONTRIBUTED BY
Dennis Cariello

According the a press release issued today, Carmel Martin, the Assistant Secretary for Planning, Evaluation, and Policy Development at the Department of Education, will join the Center for American Progress as Executive Vice President for Policy where she will oversee all the Center’s policy development.  I first met Carmel when she was the general counsel and chief education advisor to Sen. Kennedy on the Health, Education, Labor and Pensions Committee and got to work with her after the transition when she came over to the Department.  She brings a tremendous amount of policy knowledge and creativity to CAP, where she will no doubt play a major role in advocating for education policy.  She deserves thanks for her service and I look forward to following her views at CAP.

This is another in a string of departures at the Department.  Given the challenges ahead, and the agenda outlined by the President in the State of the Union, the administration will need to quickly find replacements as able as Carmel and David Bergeron (another recent departure).

 

 

Update on Students First Act

By Dennis Cariello on Posted in Department of Education, Higher Education News, Higher Education Policy, Program Reviews and Audits

CONTRIBUTED BY
Dennis Cariello

We’ve recently received the a copy of the “Students First Act.”  The bill, which is 35 pages long, has a number of interesting provisions.  We are currently reviewing the bill and hope to have an analysis up in the coming day or so.  In the meantime, I wanted to be sure we provided the text, as our earlier discussion was based on the bill summary.

Compliance Focus: Academic Plans for Students that Fail Satisfactory Academic Progress

By DLA Piper on Posted in Complaince Focus, Department of Education, Financial Aid (Loans & Grants)

Larry LevinsonCONTRIBUTED BY
Patricia V. Edelson

The final regulations published October 29, 2010 included a number of changes to the Satisfactory Academic Progress (“SAP”) rules. These rules became effective July 1, 2011. Over one year later, one change that continues to generate questions concerns the development of an Academic Plan for students who fail SAP.

Under the SAP regulations, a student who fails SAP is no longer eligible for Title IV funds. An institution may permit the student to appeal that determination, and if the appeal is successful, the student may be placed on probation as long as the institution determines that the student should be able to make SAP during the subsequent payment period.

A student on financial aid probation for a payment period may not receive Title IV funds for the subsequent payment period unless the student makes SAP. However, if the student has an Academic Plan, and has met the requirements specified in the Plan, the student may continue to be eligible for Title IV funds beyond the subsequent payment period.

An Academic Plan (“Plan”) is simply a plan developed by the the institution, together with the student, to help that student meet SAP by a specific point in time. The student on a Plan doesn’t necessarily have to regain SAP at the next payment period as long as the student is meeting the requirements of his or her Plan.

The point in time specified in the Plan may be for more than one term and can even take the student through to completing the program. So, although the maximum time frame for undergraduate programs of study remains at no longer than 150 percent of the published length of the program, in some cases, a Plan could extend the maximum timeframe past 150 percent of the program. As long as the student continues to meet the terms of the Plan, and the student’s progress is measured at each payment period to ensure the student is meeting the requirements of the Plan, the student continues to be eligible for Title IV funds.

It is important to remember that allowing a student to exceed the maximum time frame of 150 percent of his or her program must be part of the student’s Plan and does not apply to a student who is merely on probation. Exceeding the maximum time frame of a program can’t be applied to all students but is only acceptable when it is part of a Plan.

The Department provided guidance on the new rules for SAP in an Electronic Announcement, on June 6, 2011. Further guidance specific to the development of an Academic Plan was provide as part of a Q&A  related to SAP program integrity issues.

Compliance Focus: Department of Education Releases Suggested Text for Verification Worksheets

By DLA Piper on Posted in Department of Education, Financial Aid (Loans & Grants), Higher Education News

Larry LevinsonCONTRIBUTED BY
Patricia V. Edelson

The final program integrity regulations published October 29, 2010 made changes to Part 668 Subpart E, Verification and Updating of Student Aid Application Information. Among the changes, the Department is required to publish an annual Federal Register announcing information that an institution may be required to verify for an applicant selected for verification. These changes were effective July 1, 2012.

On July 12, 2012, the Department published the required notice in the Federal Register and additional information was published in the Dear Colleague Letter (GEN 12-11), July 17, 2012.  An Electronic Announcement  published on November 1, 2012 stated that, among the changes for the 2013-2014 award year, the Department would not provide sample verification worksheets for the 2013-2014 award year as it has done in the past. This change is part of the Department’s multi-year effort to develop a customized approach to verification, which limits the items most students must verify. The Department would, however, provide suggested text institutions may use to complete verification.

For the 2013-2014 award year, the Central Processing System (“CPS”) is adding a process that will place each applicant selected for verification into one of five Verification Tracking Groups. The applicant’s ISIR will use the Verification Tracking Flag field to indicate the applicant’s Verification Tracking Group.  V1 – record is selected for “Standard Verification,” V2 – record is selected for verification of Supplemental Nutritional Aid Program (“SNAP”) benefits only, V3 – record is selected for verification of child support only, V4 – record is selected for verification of identity criteria only, and V5 – record is selected for “Standard Verification” plus identity criteria.

As promised, on January 18, 2013, the Department published an Electronic Announcement that provided the suggested text for verification items that institutions may use to collect verification information for 2013–2014. Appendix A  to that announcement provides the suggested verification text. The announcement also includes Appendix B, a table of 2013-2014 verification items, Appendix C, details of the verification tracking groups, and Appendix D, an example institutions may use for verification purposes for the 2013-2014 award year.

While use by an institution of the suggested text in Appendix A fulfills the regulatory verification requirements, institutions are not required to use the Department’s suggested text. Instead, institutions may develop and use their own text that is specific to the items required to be verified for a particular student or group of students. The one exception is that institutions must use the exact language provided in the “Statement of Educational Purpose” in APPENDIX A for students who are placed in Verification Tracking Groups V4 or V5.

When an institution develops an institutional verification document, the Department suggests that each page include appropriate headings and numbering that identify the item(s) being verified. Institutional verification documents should collects the student’s name, ID number, and other identifying information, and that each page is identified as belonging to that student. Also, the institutional verification document should contain any special instructions for where, when, and how documents are to be submitted to the institution.

Compliance Focus: What a Difference a Day Makes with Return to Title IV

By DLA Piper on Posted in Department of Education

Larry LevinsonCONTRIBUTED BY
Patricia V. Edelson

One of the top ten findings in program reviews is Return to Title IV (“R2T4”) funds made late. Often this is the result of using an incorrect Date of Determination (“DOD”) when a student withdraws, because of inadequate interoffice communication.

This happens most frequently in situations when a student unofficially withdraws without notifying the institution. Determining that the student is no longer in attendance is often the responsibility of the Academic Office. If that office is unaware of the significance of a correct DOD, the date used may simply be the date it reported a withdrawn student, and not the date the determination was actually made. The office that is responsible for returning Title IV funds, usually the Financial Aid Office or Bursar’s Office, uses the date provided to determine when to make any necessary returns to Title IV funds within 45 days, and so may, inadvertently, make that return late.

Returns of Title IV funds made late, even by a day or so, could result in pretty significant liabilities, especially if it includes every return made over several years’. The simple fix is to make sure accurate and timely information is shared among all offices. If you don’t bring the information together, a program reviewer will.

Risk Management and Student Loan Defaults

By Dennis Cariello on Posted in Cohort Default Rate, Department of Education, Financial Aid (Loans & Grants), Student Loans

CONTRIBUTED BY
Dennis Cariello

As I’ve written previously, institutions of higher education must monitor the performance of their student’s loans.  Analyzing the former students that make up their loan portfolio and tailoring default prevention efforts to meet their needs is a critical step in the process.  In fact, institutions would be wise to manage their loan portfolio like a bank and step in at the first sign of delinquency.  Last October, with my friends Judith Witherspoon and Jonathan Loony of Edfinancial Services, we discussed these topics at the 2012 Annual Conference of the Association of Community College Trustees.  I hope this presentation is helpful - and please, let me know if you have any comments.

David Bergeron, Long Time Department of Education Higher Education Official, Retiring in March

By Dennis Cariello on Posted in Department of Education, Higher Education News

CONTRIBUTED BY
Dennis Cariello

David Bergeron, the current acting Assistant Secretary for Post-Secondary Education and a Department of Education employee for roughly thirty years, is retiring in March.  I had the pleasure of working with David while I worked at the Department under Secretaries Spellings and Duncan and I think the world of him.  There were people at the Department who I came to respect a great deal because of their insights, wisdom and commitment to students and taxpayers.  David was one of those people.  I have a lot of wonderful things to say about him, and have a number of worries for the Department given this drain of institutional memory, but for now, I wish him the best of luck in his future project(s).  A man of his talents and insights has a lot to give to the higher education community and the debates of the day.  Whether it is his opinion on how we should handle MOOCs, on competency-based learning, or higher education in general, I hope he gets to voice his views (which I don’t always agree with) for quite some time.

Department of Education Delays Release of Draft Cohort Default Rates

By Dennis Cariello on Posted in Cohort Default Rate, Department of Education, Financial Aid (Loans & Grants)

CONTRIBUTED BY
Dennis Cariello
On February 4 we reported that the Department of Education issued a electronic announcement notifying the public of the schedule for releasing the Draft Cohort Default Rates.  On February 15, the Department updated the eletronic announcement to notify the public that it would delay the release of the draft rates to an undetermined date in the future:

Note: Federal Student Aid has postponed the release of the FY 2011 2-Year and FY 2010 3-Year Draft Cohort Default Rates to a later date.  Please monitor the Information for Financial Aid Professionals (IFAP) Web site for a forthcoming communication that will announce the rescheduled release dates of the draft cohort default rates.

We will let you know more as we learn the information.

Looking at the Changes in Subsidized Loan Limits

By DLA Piper on Posted in Department of Education, Financial Aid (Loans & Grants), Student Loans, Uncategorized

Larry LevinsonCONTRIBUTED BY
Patricia V. Edelson

During the Federal Update session at the Federal Student Aid (“FSA”) Conference this past November, we heard about Public Law 112-141, published July 6, 2012, and how the law would impact future borrowers of Subsidized Federal Direct Stafford Loans. The changes to the law have caused a fair amount of confusion for borrowers and institutions offering the loan programs.

The law established a lifetime limit on subsidized loans for “new borrowers” on or after July 1, 2013.  The limit is dependent solely on the student’s current program; when a student has received Subsidized Stafford Loans for 150 percent of the published length (time) of the program the student is currently enrolled in, the student may not receive any additional subsidized loans, and the subsidized loans received from July 1, 2013 on lose their subsidy.

For example, consider a student in a four year Bachelor’s Degree program – the student is eligible for six years’ subsidized loans in that program. The same student in a two year Associates Degree program is eligible for three years’ subsidized loans and in a one year certificate program that student is only eligible for one and one half years’ subsidized loans.

If a student received three years of subsidized loans while enrolled in a four year BA program changes his or her career goal and enrolls in a two year degree or certificate program, that student is now limited to 150 percent of their new program, or three years of subsidized loans. Because this student already received three years subsidized loans while in the four year program, the student is not eligible for any additional subsidized loans in their two year program.

Conversely, a student in a two year program who maximized their subsidized loan limits in that program by receiving a full three years’ subsidized loans, and then transferred to a four year program, would be eligible for an additional three years’ subsidized loans.

The impact will be felt most directly by students who have attended some years of a traditional four year college and find that they really would benefit more by attending a vocational program that will train them for the career they may have aspired to all along, or they may simply discover the real academic direction for which they are best suited.

As of right now, the plan is for FSA to track, calculate, and inform students and institutions of subsidized loan limits. There will likely be codes and comments on SARs and ISIRs and COD will be editing and enforcing these limitations. Institutions will need to provide program information that includes the length of each program and that will probably be part of COD reporting requirements.

Students may still receive any Unsubsidized Direct Stafford Loans for which they were otherwise eligible.

Responding to a Department of Education Program Review

By Dennis Cariello on Posted in Department of Education, Program Reviews and Audits

CONTRIBUTED BY
Dennis Cariello

As a follow up to my earlier post, I’ve uploaded my presentation “Responding to a Department of Education Program Review” given to the  annual conference for the Southern Association of Student Financial Aid Administrators (SASFAA). It was a pleasure conducting the presentation with my friend William “Bill” Spiers, Jr., the Director of Financial Aid for Tallahassee Community College – who had a lot to add from his recent experience with a program review.  Program reviews can be awfully daunting to the unprepared, but with careful preparation – well in advance of ever being contacted by the Department of Education – it can be a productive experience.  Of course, if you have any questions, feel free to contact me.

House Subcommittee Hearing: “Raising the Bar: How Education Innovation Can Improve Student Achievement”

By Dennis Cariello on Posted in Department of Education, K-12 News, News from the Hill

CONTRIBUTED BY
Dennis Cariello

On February 14, the House Subcommittee on Early Childhood, Elementary and Secondary Education, chaired by Todd Rokita, (R-IN), will hold a hearing entitled “Raising the Bar: How Education Innovation Can Improve Student Achievement.” The hearing will take place in room 2261 of the Rayburn House Office Building at 10:00 a.m. Witnesses will include:

Mr. Jim Shelton, Assistant Deputy Secretary for Innovation and Improvement, U.S. Department of Education, Washington, D.C.

Mr. John Bailey, Executive Director Digital Learning Now, Washington, D.C.

Mr. Preston Smith, CEO & President, Rocketship Education, Redwood City, CA

Ms. Holly Sagues, Chief Policy Officer, Florida Virtual School Orlando, FL

Gauging the ROI of a College Degree

By David P. Lewis on Posted in Department of Education, Higher Education News, Higher Education Policy, Law Schools, News from the Hill, Uncategorized

CONTRIBUTED BY
David P. Lewis

An article in The Wall Street Journal today (subscription required) reports that Senators Ron Wyden (D. Ore.) and Marco Rubio (R., Fla.) are expected to introduce legislation later this week that would require each state to make available information on the average salaries of college graduates who attended institutions in that state.  The information would be provided by institution and major, with the goal of enabling prospective students to “compare salaries by college and major to assess the best return on their investment.”

This is a welcome development that parallels the pressure on law schools for greater transparency regarding the employment outcomes of their students (as we have written about previously – see here, here, here, and here).  As the father of a child going through the college process now, I am very focused, among other things, on what graduates of particular programs in particular target schools do after they graduate, and can attest to the statement in the article that prospective students are “awash with information about costs” but have almost no way “to tell what graduates at specific schools earn – or how many found jobs in their chosen field.”  While the actual bill has not yet been introduced (we will provide the text when available), I note a few key takeaways from the article:

  • The reporting burden is placed on the states.  While there is certainly a “gainful employment” genesis to this bill, the focus seems to be on requiring states to provide the information from wage data submitted by employers and graduate data submitted by colleges, tied together by Social Security numbers.  Thus, the reporting burden on already taxed schools would be modest.
  • The data would be gathered with respect to all colleges, without regard to whether they are for-profit or non-profit.  This is something the proprietary sector has been seeking – a chance to be compared to their traditional school competitors on an apples-to-apples, student outcomes basis.  And the results could be interesting.  As the article notes about Virginia, a state that has already started to provide this type of information:

Among graduates who live in Virginia, the highest starting wages for a bachelor’s degree were $56,400 for graduates of Jefferson College of Health Sciences, a Roanoke school that largely turns out nursing graduates.

That was 42% higher than the University of Virginia’s average of $39,648.  Overall, students with associate’s degrees in technical fields, such as health care, earned more than recipients of bachelor’s degrees.  A spokesman for the University of Virginia declined to comment.

  • There is bipartisan support.  According to Sen. Wyden, support for a bill like this is “unusally broad,” and includes the support of House Majority Leader Eric Cantor (R., Va.), who intends to support a companion bill in the House.
  • Outcomes will be a focus in the next few years.  According to a Department of Education spokeswoman, “[p]roviding more information about outcomes will be a priority during President Barack Obama’s second term,” including completing development on a “College Scorecard” that would provide salary information and average debt load information to to existing data on costs, graduates rates and loan repayment rates.

We will report back once the bill language is released.

 

 

Compliance Focus: The Clery Act

By Dennis Cariello on Posted in Clery Act, Department of Education, Higher Education News, Higher Education Policy

Larry LevinsonCONTRIBUTED BY
Dennis Cariello
Patricia V. Edelson

On a few times this past summer, the Department of Education has shown it is focused on Clery Act compliance like never before.  As an aid, I hope you like our webinar on the Clery Act (first presented in December 2012).

Dennis Cariello Will be Speaking at SASFAA on February 12, 2013

By Dennis Cariello on Posted in Department of Education, Financial Aid (Loans & Grants), Higher Education News, Program Reviews and Audits

CONTRIBUTED BY
Dennis Cariello

If you are in Atlanta next week, I hope to see you at the annual conference for the Southern Association of Student Financial Aid Administrators (SASFAA).  I will be speaking with William “Bill” Spiers, Jr., the Director of Financial Aid for Tallahassee Community College on “Responding to a Department of Education Program Review.”  This discussion will be moderated by Jamey Palmieri of Ferrilli Information Group.  It will be an informative session where we hope to answer questions about the process and how to better position your institution to achieve a favorable review.  If you can’t make the event, you can get the PowerPoint presentation on the web site after the session.

Secretary Duncan to Testify at Senate HELP Committee Hearing on February 7, 2013: “No Child Left Behind: Early Lessons from State Flexibility Waivers”

By Dennis Cariello on Posted in Department of Education, K-12 News, News from the Hill, No Child Left Behind/ESEA Reauthoritzation

CONTRIBUTED BY
Dennis Cariello

On February 7, 2013, in Room 216 of the Hart Senate Office Building, the Senate Committee on Health Education Labor and Pensions (HELP) will hold a hearing entitled: “No Child Left Behind: Early Lessons from State Flexibility Waivers.”   For those that are unaware, in sum, the No Child Left Behind Act of 2002 imposed strict accountability measures for states to ensure that students are demonstrating proficiency in math and reading by 2014.  As we approached 2014, however, it was clear that many states would not make the grade.  In 2011, the Department of Education announced a process that would allow states to obtain a waiver from the accountability goals if, in exchange, the state would comply with other mandates.  While this waiver program has arguably been made necessary due to the inability of Congress to address the issues in an reauthorization of the Elementary and Secondary Education Act, it has been a controversial move.

There will be two panels to discuss the issues.  The first will include Arne Duncan, the Secretary of Education who has enacted the policy under discussion.   The Second Panel will feature:

  • Terry K. Holliday, Ph.D., Kentucky Commissioner of Education, Lexington, Kentucky
  • John B. King, Jr., Ed.D., New York Commissioner of Education, Slingerlands, New York
  • Andrew R. Smarick, M.P.M., Partner, Bellwether Education Partners, Lawrenceville, New Jersey
  • Kati Haycock, M.A., President, The Education Trust, Washington, District of Columbia

Department of Education Announces Schedule for Release of Draft Cohort Default Rates

By Dennis Cariello on Posted in Department of Education, Education Data & Statistics, Financial Aid (Loans & Grants), Higher Education News

CONTRIBUTED BY
Dennis Cariello

Earlier today, the Department of Education issued a electronic announcment notifying the public of the schedule for releasing the Draft Cohort Default Rates.  On February 19, 2013, the Department will release the FY 2011 2-year draft cohort default rates.  On February 25, 2013, the Department will release the FY 2010 3-year draft cohort default rates.  These rates are released to institutions of higher education (as well as lenders and guaranty agencies).  Final rates are released in September.

 

Good Business Practice: Ensure Your Third-Party Contracts Are FERPA Compliant

By Dennis Cariello on Posted in Department of Education, FERPA, Higher Education News, Higher Education Policy

 

CONTRIBUTED BY 
Dennis Cariello     Allison L. Kierman

As the use of electronically-provided educational services increases in the higher education industry, institutions of higher education (“Institutions”) and those contractors, consultants, and other parties to whom the Institutions have outsourced organizational services or functions, must remain vigilant in protecting education records and complying with the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g (“FERPA”) and the implementing regulations.  FERPA compliance is mandatory and, as a good business practice, Institutions and third parties need to ensure that each of their contracts align with FERPA’s requirements.

Overview of FERPA

FERPA is a federal law that protects the privacy of student education records.  The law, which is enforced by the  U.S. Department of Education (“Department”) Family Policy Compliance Office, applies to all schools that receive federal education funds – both elementary and secondary schools as well as Institutions.

The regulations define an “education record” as those records that are:

(1)        Directly related to a student; and

(2)        Maintained by an educational agency or institution or by a party acting for the agency or institution.

As such, while transcripts and other obviously academic records are certainly “education records,” this definition encompasses many other records besides those related to academics.  In addition, when the regulations speak of “records,” they do so very broadly.  Records include “any information recorded in any way” – including in print, on film or video, or in digital and electronic formats.  Also, “students” include those persons that have attended an Institution.  Mere applicants are not “students” (although, applications of students are education records).

Under FERPA, Institutions may disclose education records in personally identifiable form, without consent, to “school officials.”  School officials are contractors, consultants, and other parties (1) to whom the Institution has outsourced organizational services or functions, (2) that the Institution retains “direct control” over and (3) that are subject to the same conditions on the use, redisclosure, and destruction of education records that apply to the Institutions.  In addition, “school officials” must only use the information disclosed for the purposes for which the information was disclosed.  So, if an Institution provides student grade information to a third party, for example, to format and print transcripts, that third party cannot contact the student with an offer to help improve the student’s grades in future English classes.

Redisclosure of Information by Third Party School Officials

On typical cause for concern with third party “school officials” relates to the redisclosure of information.  Continue Reading

Rep. Grijalva Releases Text of Bill Restricting Use of Federal Funds for University Marketing

By Dennis Cariello on Posted in Department of Education, Higher Education News, Higher Education Policy, Marketing and Recruiting, News from the Hill

Larry LevinsonCONTRIBUTED BY
Larry Levinson
Dennis Cariello

Following on our earlier report, this morning, Rep. Raul Grijalva (AZ-3) released the text of his bill (H.R. 340), the ”Protecting Financial Aid for Students and Taxpayers Act,” which would prohibit institutions of higher education from using federal education funds in marketing and recruiting.  The bill, which starts with a lengthy preamble that specifically takes proprietary schools to task for their marketing activities and perceived abuses, amends 20 USC 1011m, which currently requires that all institutions of higher education certify that they have not used federal funds (received under the Higher Education Act or 42 U.S.C. 2751 et seq.) to lobby.  The text of the prohibition, which appears to be identical to the text of Section 309 to from S.3295 (Labor-HHS appropriations bill that passed out of the Senate Appropriations Committee last year), prohibits all institutions of higher education (public, non-profit and proprietary) from using federal education assistance funds for “recruiting and marketing” activities.”  The bill defines recruiting and marketing activities as:

(2) COVERED ACTIVITIES- Except as provided in paragraph (3), the recruiting and marketing activities subject to paragraph (1) shall include the following:

(A) Advertising and promotion activities, including paid announcements in newspapers, magazines, radio, television, billboards, electronic media, naming rights, or any other public medium of communication, including paying for displays or promotions at job fairs, military installations, or college recruiting events.

(B) Efforts to identify and attract prospective students, either directly or through a contractor or other third party, including contact concerning a prospective student’s potential enrollment or application for grant, loan, or work assistance under title IV of the Higher Education Act of 1965 (20 U.S.C. 1070 et seq.) or participation in preadmission or advising activities, including–

(i) paying employees responsible for overseeing enrollment and for contacting potential students in-person, by phone, by email, or by other internet communications regarding enrollment; and

(ii) soliciting an individual to provide contact information to an institution of higher education, including websites established for such purpose and funds paid to third parties for such purpose.

(C) Such other activities as the Secretary of Education may prescribe, including paying for promotion or sponsorship of education or military-related associations.

On a first read, there are a number of things that are unclear.  First, the bill does not clarify how funds spent on sports and marketing of sports teams should be treated. It is also unclear how universities should treat expenses for conferences and other activities undertaken to raise the profile of the university.  Indeed, these activities could be characterized as “promotion activities” or activities that will “attract prospective students.”  Although less likely, one could read this text to affect certain capital expenses being construed as efforts to “attract prospective students” (the oft-maligned rock walls, for example).

More crucially, this bill appears to prohibit the use of federal education funds to pay admissions staff.  While it may be the case that institutions of higher education can find enough funds from non-federal sources to pay for these activities, it seems that with dwindling contributions from states, those resources may be tougher to come by.  And unlike lobbying, admissions is a vital university function, perhaps second only to academics in importance.

Also, it is worth noting that, while this bill is unlikely to receive much Republican support, the two co-sponsors — Democrats Rep. John Conyers (MI-13), and Rep. Elijah Cummings (MD-7) — are longtime leaders within the Congressional Black Caucus.  This may be a forecast of support for Rep. Grijalva by the CBC for a leadership post within the Education and Workforce Committee.

The full text fo the bill is after the jump. Continue Reading

Department of Education OCR Issues Guidance on Providing Athletic Opportunities to Disabled Students

By Dennis Cariello on Posted in Athletics, Civil Rights & the Constitution, Department of Education, Government Accountability Office (GAO), Higher Education News, K-12 News, Office for Civil Rights (OCR)

CONTRIBUTED BY
Dennis Cariello

On January 25, 2013, the Office for Civil Rights of the US Department of Education issued guidance on the obligations of institutions receiving Title IV aid (as well as elementary and secondary education) to provide athletic opportunities to disabled students pursuant to Section 504 of the Rehabilitation Act and the Americans with Disabilities Act.  The guidance was spurred on, in part, by a 2010 Govertnment Accountability Office (GAO) study on the topic.  In a blog statement, Secretary Arne Duncan said:

we know that students with disabilities are all too often denied the chance to participate and with it, the respect that comes with inclusion. This is simply wrong. While it’s the coach’s job to pick the best team, students with disabilities must be judged based on their individual abilities, and not excluded because of generalizations, assumptions, prejudices, or stereotypes.

While the letter is framed towards elementary and secondary schools, the obligations apply to higher education as well: “students with disabilities at the postsecondary level must also be provided an equal opportunity to participate in athletics, including intercollegiate, club, and intramural athletics.”

We will provide a more complete digest as we examine the letter.  Nonetheless, here are a few important passages:

Of course, simply because a student is a “qualified” student with a disability does not mean that the student must be allowed to participate in any selective or competitive program offered by a school district; school districts may require a level of skill or ability of a student in order for that student to participate in a selective or competitive program or activity, so long as the selection or competition criteria are not discriminatory.”

Among other things, the Department’s Section 504 regulations prohibit school districts from:

*denying a qualified student with a disability the opportunity to participate in or benefit from an aid, benefit, or service;

*affording a qualified student with a disability an opportunity to participate in or benefit from an aid, benefit, or service that is not equal to that afforded others;

*providing a qualified student with a disability with an aid, benefit, or service that is not as effective as that provided to others and does not afford that student with an equal opportunity to obtain the same result, gain the same benefit, or reach the same level of achievement in the most integrated setting appropriate to the student’s needs;

*providing different or separate aid, benefits, or services to students with disabilities or to any class of students with disabilities unless such action is necessary to provide a qualified student with a disability with aid, benefits, or services that are as effective as those provided to others; and

*otherwise limiting a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving an aid, benefit, or service

Department Issues Guidance on State Authorization

By Dennis Cariello on Posted in Department of Education, Higher Education News, Higher Education Policy, State Authorization

CONTRIBUTED BY
Dennis Cariello

On  January 23, 2013, the Department of Education issued Dear Colleague Letter GEN 13-04 reminding institutions that “the final year of the stay  of the enforcement of the State authorization regulations is currently underway  and ends June 30, 2013.”  As you may recall, the Department enacted new requirements concerning State oversight and approvals of postsecondary institutions (34 CFR 600.9(a) and (b)) as part of the ”Program integrity” regulations published on October 29, 2010 (and effective July 1, 2011).  On August 22, 2011, the Department published an electronic announcement that described the steps a postsecondary  institution could follow to obtain a one-year extension of the effective date of these regulations.  The final regulations provided that  institutions unable to obtain State authorization could receive a one-year stay  of the enforcement of the regulations to July 1, 2012, and if necessary, an additional one-year extension to July 1, 2013.

This new Dear Colleague Letter ”serves as a reminder” that the stay official ends on June 30, 2013.  As of that date, the Department will hold Title IV-eligible institutions accountable for being legally authorized by a State to provide a postsecondary education program.

Note, this guidance does not relate to the state authorization rule as applied to online programs.  That rule was vacated in a district court decision that was later upheld by the DC Circuit Court of Appeals on June 5, 2012.

 

Current Status of the Gainful Employment Litigation

By Dennis Cariello on Posted in Department of Education, Gainful Employment, Higher Education News, Higher Education Policy

CONTRIBUTED BY
Dennis Cariello

A number of people have recently asked us about the current status of the gainful employment litigation.  After the June 30, 2012 decision in Ass’n of Priv. Sector Colls. and Univs. v. Duncan, No. 11-1314, on July 30, 2012, the Department of Education filed a Motion to Alter to Amend the Judgment (the “Motion to Alter”). On August 15, 2012, the Association of Private Sector Colleges and Universities (“APSCU”) filed an Opposition to the Motion to Alter. On September 6, 2012, the Department filed its Reply in Support of the Motion to Alter.  (We discussed these motions in a September 17, 2012 post)

On September 24, 2012, the Court issued an Order in APSCU v Duncan requesting supplemental briefing and responses to seven questions. The Department and APSCU responded to these questions in supplemental briefs filed with the Court and on November 2, 2012, the motion was fully briefed. The parties await the Court’s decision on the Motion to Alter.

Note, pursuant to the Federal Rules of Appellate Procedure Rule 4(a)(4), the Department’s Motion to Alter effectively tolled the time for the Department to file an appeal of the Court’s June 2012 Order. The Department will have 60 days after entry of any order on the Motion to Alter to file an appeal.

After the jump, you can read the questions posed by the Court: Continue Reading