The passage of The Consolidated and Further Continuing Appropriations Act of 2015 (Pub. L. 113-235) reinstituted the opportunity for a student’s Title IV eligibility through ability to benefit (ATB) alternatives. But, this ATB alternative opportunity is only available if such a student is enrolled in an “eligible career pathway program.” The U.S. Department of Education (ED) has provided some guidance in regard to eligible career pathway programs, but it has been quite limited in scope. As a result, numerous schools have inquired about what they consider to be an eligible career pathway program (CPP). We appreciate our clients’ interest in the perceived opportunity they anticipate to be available via the CPPs. Yet, the legislation allowing for CPPs has not developed to be the panacea desired. There has been limited and, apparently, somewhat contradictory information from ED, as we understand it. The result is that a number of concerns have surfaced. As it turns out, venturing into the avenue of CPPs may actually be like a trek down the Yellow Brick Road in search of Oz, fraught with obstacles and peril. Unless and until ED provides more definitive guidance that will indicate approval of a school’s proposed career pathway program up front, prior to disbursing Title IV aid, FAME takes the position that pursuit of a CPP would place schools and FAME in too much jeopardy to consider it a viable option. Therefore, at this time, FAME is not pursuing any proposals that a school may be considering in regard to a career pathway program under the provisions of Pub. L. 113-235.
Landing in Munchkinland
The initial excitement of waking up in a colorful new place (ATB alternatives!) is intriguing and perhaps a bit mesmerizing as you fix your eyes on the potential of the new environment and you hear happy tunes resounding in your thought processes. But, caution is still the key. The initial landing in Munchkinland that offered a bit of joy requires more in-depth understanding of this new place and the route ahead. We are not in “Kansas” anymore! And, there appears yet to be a trek ahead.
The Yellow Brick Road is not the Destination
Munchkinland was not the final destination. Neither is the Yellow Brick Road. Munchkinland only offered the entrance to the Yellow Brick Road. So, it would seem that the journey is just beginning. We have received some direction to assist in determining our course. This guidance is highlighted here as we express our understanding of what may be experienced on the route. Keep in mind that we have not reached the destination desired.
Guidance Provided (as currently understood, from legislation, Dear Colleague Letters, and dialog with ED):
- A CPP is a program designed to assist adult students without a high school diploma transition to postsecondary learning with the goal of becoming employable within a certain career.
- The foundational guidance is, of course, Pub. L. 113-235.
- Dear Colleague Letter GEN-15-09 (specifically, the bullet points under the section titled “Eligible Career Pathways Programs”) provides more guidance that is almost verbatim as presented in the legislation, along with a slight further elaboration on the definition of “adult education” from the Adult Education and Family Literacy Act, Title II of the Workforce Innovation and Opportunity Act (Pub. L. 113-128). The definition of “adult education” stipulates that such education increases the individual’s ability to:
- Read, write, and speak in English and perform mathematics or other activities necessary for the attainment of a secondary school diploma or its recognized equivalent;
- Transition to postsecondary education and training; and
- Obtain employment.
- A school needs to designate a separate program as a CPP and then within that program ensure that the program contains all of the required elements designated in the Dear Colleague Letter GEN-15-09.
- Schools are responsible for making the determination that a program they deem to be a CPP does, in fact, meet the criteria stipulated in legislation and the DCL.
- ED will not approve or certify a school’s determination of a program meeting the criteria for being classified as an eligible CPP.
Angry Apple Orchards and Deadly Poppy Fields
The goal to get to Oz has potential for various obstacles. Some of these are noted as conflicting or incomplete guidance along the way.
Current Concerns or Questions Noted
- At more than one conference, an ED official was noted to indicate the encouragement of proprietary institutions partnering with traditional higher education institutions (traditional colleges, community colleges, etc.) that may meet the “adult education” component of the CPP.
- E-mails have been received from ED representatives indicating that ED does not anticipate many, if any, proprietary institutions will have eligible CPPs.
- Other e-mail correspondence indicates schools can create career pathway programs but it is likely to be more common in public schools than proprietary because of the adult education component that is more commonly offered in public school settings.
- We get e-mails from schools stating that they have talked to ED and are told that their program—what they are describing as a CPP—meets the criteria outlined in GEN-15-09. Our follow-up with ED indicates that ED would not concur that the program described would qualify as a CPP. Thus, there is conflicting information received by the school.
- A school, being responsible for making its own determination that a program meets the criteria for CPP, will ascertain that its program meets the requirements for qualifying as a CPP. Thus, they will then begin awarding and disbursing Title IV aid to students in the program they have concluded to be an eligible CPP.
- Schools, although with the best of intentions to be in compliance, may miss the mark in their determination that a program qualifies as an eligible CPP. They have no one (i.e., ED) to review what they believe to be an eligible program before they begin disbursing Title IV funds. Then, when in an audit or program review, they may be subject to an auditor or ED official stating that they do not agree with the school’s conclusion that the program qualifies as a CPP. Who determines that? And, based upon what? And, the school, with the best of intentions, made a mistake (perhaps; but according to whose judgment?), yet was not able to get an approval of their determination before disbursing aid. As a result, the likelihood is that they then become liable for aid they disbursed. It seems that this could lead to a punishment of a school (repayment of all aid paid, fines, penalties, etc.) while not allowing due process when there is no opportunity for getting an approval of a program before starting to offer aid to students in the program.
- How is a school to “know” that their program meets the criteria of a CPP in the eyes of ED before they begin offering Title IV aid to students in the program?
First Arrival at Emerald City
When you think you have arrived at the CPP’s Emerald City in the Land of Oz, keep in mind that you have not received your final desired outcome. There is further opposition, and the need for further assistance in critical areas.
Factors to Overcome
- Schools may make an effort to determine if a program meets the criteria to be an eligible CPP (via calls to ED, etc.) and get conflicting information or an incomplete analysis based upon limited information shared during a conversation or based upon a lack of understanding the full scope of the details of the program.
- ED will not approve a CPP for a school up front.
- Schools have to wait until an audit or program review for someone to determine if the CPP is an eligible program, based upon that auditor’s or reviewer’s interpretation that the program is an eligible one or not (after funds have been disbursed).
- Schools are liable for misjudging their program’s eligibility as a CPP, with no recourse, as it seems currently.
Assistance Sought
Just as Dorothy had the assistance of the Scarecrow, the Tin Woodman, and the Lion—the new friends she met along the way—FAME also sought out new friends to assist in overcoming potential obstacles in the CPP trek to Oz. We searched for other ability-to-benefit (ATB) and career pathways industry experts. One such source was the National Career Pathways Network (www.ncpn.info), a 2,000 member organization. We thought this resource could help schools determine whether their programs met the criteria of a career pathway program. The NCPN web site indicates that it “is a membership organization for educators, employers and others involved in the advancement of Career Pathways, career technical education (CTE), and related education reform initiatives…. NCPN is housed at the Center for Occupational Research and Development (CORD).”1 The NCPN web site states that their director, Mrs. Debbie Mills, is a “subject matter expert for the U.S. Department of Education’s Designing Programs of Instruction for Career Pathways ‘Communities of Practice’ and serves on the National Advisory Group for the Alliance for Quality Career Pathways initiative. Previously Mills was a subject-matter expert for the DOLETA/OVAE Career Pathways Technical Assistance Initiative (2011), OVAE Rigorous Programs of Study project (2011) and the College & Career Transition Leadership Team (OVAE Project 2007).”2
However, even with such expertise, the NCPN and CORD are unwilling to make an official determination of schools’ programs for the purposes of Title IV eligibility as a career pathway program. We encourage schools to explore NCPN’s web site for a greater understanding of their career pathways expertise, including career pathways program evaluation.
As another consideration, FAME approached Wonderlic, Inc., the renowned career education assessment firm. But, they also have been in a similar situation as FAME, looking for those friends to accompany schools in overcoming obstacles on the walk down the Yellow Brick Road to the fabled CPP Land of Oz. But, their search, too, has been fruitless in finding an organization willing to make such a judgment. In fact, getting an accurate and acceptable CPP eligibility determination may have more obstacles than Dorothy encountered on her way to Oz. The current setting of CPP could actually be seen as not just an obstacle, but a land mine for schools.
Is There A Wizard Behind the Curtain?
FAME takes its relationship with schools and their students seriously. The current environment of CPP is a very dangerous place for schools to tread without more specific guidance from ED, and approval by ED up front, in writing, of proposed CPPs before aid is disbursed. The limited information provided by ED to date indicates to us that there are very few proprietary schools that will likely have a qualified CPP. The all knowing Wizard of Oz in regard to eligible Career Pathways Programs has not revealed himself—and, he definitely has not provided the way “back to Kansas” in regard to ability-to-benefit provisions of days prior to the cyclone of federal budget negotiations that ended the ATB provisions of 2012 and earlier.
The bottom line is that to date, FAME and Wonderlic are unable to find an organization willing to make a determination of the eligibility of CPPs. Our understanding is that the provision of the law that enables the possibility of CPPs was purposely written so narrowly in the legislation that it would benefit only a very small number of schools in certain congressional members’ districts.3 It seems to have been done as a political move, and was not written more broadly due to the increased costs that would be generated in the federal budget. As a result, it appears that ED is not willing to take steps to approve schools’ potential career pathway programs as apparently the legislation was never intended to be used on a wide scale basis.
The current environment of CPP is a very dangerous place for schools to tread without more specific guidance from ED, and approval by ED up front, in writing, of proposed CPPs’ eligibility before aid is disbursed. As we have referenced, the limited information provided by ED to date indicates to us that there are very few for-profit schools that will likely have a qualified CPP. Until we hear definitive guidance from ED in writing regarding the CPP legislation that provides a method of assuring a program’s eligibility prior to disbursing aid, we must protect clients from a potential federal Title IV land mine. However, if a school is able to get ED to make a determination that its proposed CPP is an eligible one, and provide that specific determination in writing, then we will be happy to process aid for such a program.
FAME has reached out to ED for answers and clarification regarding CPP eligibility determination. Thus far, more than a month later, the response has been that ED has received numerous questions from the community regarding eligible career pathway programs and the ATB alternatives. ED is reportedly preparing additional guidance to respond to questions, including the ones posed by FAME. (That guidance is supposed to be forthcoming “within the next few weeks.”)
Thank you for your assistance as we work at staying in compliance with applicable Title IV legislation, regulations, and polices, while assisting students in their educational pursuits. And, who knows? Perhaps, with enough ongoing diligence in matters related to ability to benefit legislative provisions, we will again find ourselves back in “Kansas,” where those students seeking to further their education will be able to do so more readily.
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[1] The “About Us” Welcome Page of the National Career Pathways Network (NPCN) at https://www.ncpn.info/index.php; accessed on 08/28/2015.
2 The “About Us” NCPN Staff Page of the National Career Pathways Network (NPCN) at https://www.ncpn.info/ncpn-staff.php; accessed on 08/28/2015.
3 AACS’ “Eligible Career Pathways Programs” Webinar presented on January 29, 2015, by AACS Public Policy Advisor, Tom Netting, and Katherine Brodie, Attorney – Ritzert & Leyton.
Note: This article was previously published in an abbreviated format as a FAME Regulatory Bulletin on September 4, 2015.
The above article is presented for informational and educational purposes only and should not be considered to be giving legal advice.
