Is it “Right” on the Money?.… The Gainful Employment Alternate Earnings Appeals Deadlines

Gainful Employment (GE) programs with their related debt-to-earnings (D/E) rates, disclosures, and alternate earnings appeals have become a frequent topic in the world of Title IV Federal Student Aid.  Last week, the U.S. Department of Education (ED) provided further guidance related to GE alternate earnings appeals deadlines, and associated disclosures.

Imperative Dates Clarified

In GE Electronic Announcement #108 (GE EA #108), ED provided clarification about, and an update on, the deadlines for institutions that wish to submit an alternate earnings appeal to use institutionally gathered data to substantiate its graduates’ 2014 earnings instead of the 2014 earnings data ED obtained from the Social Security Administration (SSA) for the 2014-2015 award year D/E rates.[1]  The deadline for:

• filing a “Notice of Intent” to appeal the earnings data has been set as October 6, 2017.
• submitting the actual alternate earnings appeal is February 1, 2018.

It is essential to note the clarification of these dates.  They are the result of a Notice published in the Federal Register on August 18, 2017.  Previously, ED had stated in GE EA #106, that it was “allowing institutions – until July 1, 2018 – to comply with the provisions in 34 CFR 668.412 (d) and (e).”[2]  Yet, in that same EA, ED stated that it would be publishing a future Notice in the Federal Register to implement the outcome of the case, American Association of Cosmetology Schools v. DeVos, Civil Action No. 17-0263, D.D.C. June 28, 2017 (Court Order).  The GE EA #108, which is the subject of this FAME Regulatory Bulletin, provides the updated final guidance resulting from the Court Order.  The GE EA #108 does clarify the deadline dates for filing a “Notice of Intent” to appeal the earnings data and the actual deadline for submitting the alternate earnings appeal.  But, it also slightly modifies the prior extension of compliance to 34 CFR 668.412 (d) and (e).  These effects are explained below under “Implications for Actions or Inaction.”  A key point made in ED’s latest guidance in the Notice in the Federal Register is that the extension of deadlines and associated timelines being made this year are done on a one-time basis, simply to comply with the Court Order.  Extensions are not to be granted for future years’ appeals and notices of intent to appeal.

Of special note is that the process for filing a “Notice of Intent” has not changed.  It is the same as that described in ED’s earlier GE Electronic Announcement #95 back on October 26, 2016.[3]  Those institutions that have already submitted a “Notice of Intent” to appeal or have already appealed with alternate earnings data, as previously instructed by ED, do not have to resubmit a “Notice of Intent” or resubmit the alternate earnings data.   However, ED does state that if an institution wishes to “supplement” an alternate earnings appeal that has already been submitted, the institution should contact ED on or before October 6, 2017.  Schools submitting an original “Notice of Intent” now for the first time should follow the guidance in GE EA #95 carefully.

Institutions that choose to file an alternate earnings appeal should be aware that ED has confirmed that it will not enforce the requirement that the survey of graduates include all students who are not exempted under §668.404(e) (e.g., due to military service, death, etc.).  Similarly, ED will not enforce the requirement in §668.406(b)(3) or (c) that the survey response rate of graduates has to be 50% or greater.  However, importantly, ED will review all alternate earnings appeals as long as the survey data submitted includes:

• the number of responses,
• the response rate,
• a non-response bias analysis, and
• any other information ED requests to ascertain the statistical validity of the sample to the total cohort.

For programs with fewer than 30 responses, or less than a 50% response rate, ED will consider the overall response rate, the non-response bias, and any other information ED may request to validate the responses are a “reliable measure of the program graduates’ true earnings.”[4]  For those institutions that appeal earnings data based upon State-sponsored data systems, ED will make similar allowances for low numbers and response rates to graduate earnings surveys.  However, for State-sponsored data systems ED will determine the validity of the appeals on a case-by-case basis, considering the response rate and the specifics of that program and its graduates.

Institutions submitting an alternate earnings appeal must still include the certifications and attestations previously described in §668.406(c)(2) and (d)(3), as applicable.

Implications for Actions or Inaction

NOTE that institutions which do not file a “Notice of Intent” to file an alternate earnings appeal by October 6, 2017, or that do not subsequently file the appropriate alternate earnings appeal by February 1, 2018, will at that point be required to immediately begin issuing the warnings to students that are described in 34 CFR 668.410.  Likewise, if a timely submitted alternate earnings appeal is not resolved favorably for the institution, the institution must begin to issue the required warnings to students within 30 days in accordance with §668.409(b), which states that the “determination, including, as applicable, the determination with respect to an appeal under §668.406, constitutes the final decision of the Secretary with respect to the D/E rates measure.”[5]

Important Decision Points

With the extension of the deadlines for filing a “Notice of Intent” to file an appeal and to submit the alternate earnings appeal, an institution must decide its next steps.  Some questions for decisions and/or action include:

1. Will the institution plan to file an alternate earnings appeal?
2. If so, when will you submit your “Notice of Intent” to appeal? Who has responsibility to ensure it is done with administration approval in a timely manner?
3. Has your institution reviewed the Best Practices Guide for the Recent Graduates Employment and Earnings Survey (RGEES), November 2015 edition? It is available in the “Resources” section of the Gainful Employment Information Page.  This resource, and others, were announced by ED in Gainful Employment Electronic Announcement #85 – Alternative Earnings Survey Resources Now Available, posted on IFAP on July 26, 2016.[6]
4. Has your institution determined the individual capable to survey your graduates’ earnings from 2014? Keep in mind that this is an institutional necessity and not specific to financial aid, although institutional eligibility for Title IV funding may be impacted by the results.  (Note:  FAME does not conduct surveys for institutions.)
5. What will be your schedule for conducting the Recent Graduates Employment and Earnings Survey to ensure timely submission?
6. What will be your method of conducting the necessary survey of graduates’ earnings? Postal mail?  Electronic mail (e-mail), RGEES platform, etc.?  What type of follow-up will be conducted?  Is such follow-up accounted for in the survey schedule?
7. Has your institution developed a Data Security Plan (DSP) for the survey data collected in relation to the alternate earnings appeal? (See Appendix H of the Best Practices Guide for the RGEES.)
8. Have you planned and prepared the Frequently Asked Question (FAQ) flyer that must be distributed to graduates who are selected to participate in the survey? (See Appendix G of the Best Practices Guide for the RGEES.)
9. What individual is responsible for ensuring the execution, completion, and timely submission of the alternate earnings appeal? Remember that it may take a team effort to accomplish the earnings survey.
10. What is your institutional plan for initiating the immediately required disclosures and warnings in the event your “Notice of Intent” to appeal or the actual appeal are not submitted timely? Likewise, what are the institution’s plans for providing the required disclosures and warnings if the appeal results are not favorable?

Item worth a Reminder

Beyond the closing dates for a “Notice of Intent” to appeal and the submission of the alternate earnings appeals for the 2014 earnings of an institution’s GE programs’ graduates for the 2014-2015 award year—which is the 2015 debt measure year (DMYR)—there is another due date quickly approaching.  That deadline is for the annual GE reporting for the 2016-2017 award year which provides the data for the 2017 DMYR.

The deadline for the annual GE reporting has not changed.  ED specified in GE Electronic Announcement #107[7] (GE EA #107) that the annual GE reporting for the 2016-2017 award year must still be completed by Sunday, October 1, 2017.  Institutions may want to again review that GE EA #107, as well as FAME’s Regulatory Bulletin, “When Things Stay the Same,” of August 11, 2017.

Since the deadline is highlighted as being on a weekend (Sunday), institutions should plan accordingly to ensure timely submission as there is no allowance for a late submission on Monday (the next following business day).

The GE alternate earnings appeal process and the ramifications of timely and accurate data submitted and utilized are important to institutions with GE programs.  Under current law and regulations, the impact of inaccurate data being used in D/E metrics calculations, and an untimely submission, can have significant impact upon an institution and its students.  It may well be worth an institution’s efforts to make sure it—and ED—are “right” on the money (earnings) data used in the calculations.

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[1] Gainful Employment Electronic Announcement #95 – Debt-to-Earnings Rate Alternate Earnings Appeals, October 26, 2016; U.S. Department of Education.
[2] Gainful Employment Electronic Announcement #106 – Extension of Compliance Date for Certain Disclosure Requirements and Alternate Earnings Appeals, June 30, 2017; U.S. Department of Education.
[3] Ibid., GE EA #95.
[4] Gainful Employment Electronic Announcement #108 – Announcement of Appeals Deadlines, August 18, 2017; U.S. Department of Education.
[5] Electronic Code of Federal Regulations, Title 34:  Education, Part 668, Subpart Q (e-CFR data is current as of August 21, 2017); U.S. Government Publishing Office.
[6] Gainful Employment Electronic Announcement #85 – Alternative Earnings Survey Resources Now Available, July 26, 2016; U.S. Department of Education.
[7] Gainful Employment Electronic Announcement #107 – Information for GE Reporting by the October 1, 2017 Deadline, August 2, 2017; U.S. Department of Education.