Department of Education Final Rules for Postsecondary Education Programs That Prepare Students for Gainful Employment in a Recognized Occupation

David P. Smole
Specialist in Education Policy

Some postsecondary education programs at institutions of higher education that are eligible for participation in the federal student aid programs authorized under Title IV of the Higher Education Act of 1965, as amended (HEA), face additional conditions for Title IV aid eligibility. These programs, which are offered by public and private not-for-profit institutions of higher education and postsecondary vocational institutions, and by for-profit proprietary institutions of higher education, must prepare students for gainful employment in recognized occupations.

Until recently, the U.S. Department of Education (ED) had not promulgated regulations that explicitly defined what it means for a program to be preparing students for gainful employment in a recognized occupation. However, to address concerns about the quality of programs that prepare students for gainful employment and concerns about the level of student loan debt assumed by students who attend these programs, ED issued new rules on gainful employment in late 2010 and early 2011.

On October 29, 2010, ED published final rules that establish a series of reporting and disclosure requirements for institutions of higher education that offer gainful employment programs. These final rules became effective July 1, 2011. On June 13, 2011, ED published final rules that establish a series of three performance metrics designed to measure how effectively completers of gainful employment programs repay the student loans they borrow to attend these programs, and the relationship between their student loan debt and their earnings. One metric, a loan repayment rate, is designed to measure how effectively students who are borrowers of federal student loans and who attended a gainful employment program repay the loans they borrowed to attend the program. Two additional metrics—an earnings rate and a discretionary income rate—are debt-toearnings measures that are designed to measure the proportion of students who complete a gainful employment program whose combined federal and non-federal student loan debt exceeds certain percentage thresholds of their earnings. A program that fails to pass at least one of the three performance metrics for any three out of the most recently completed four fiscal years will lose eligibility to participate in HEA, Title IV programs. These final rules become effective July 1, 2012.

The establishment of new rules on gainful employment has been very contentious. When ED published proposed rules in the summer of 2010, it received an unprecedented volume of comments. Overall, ED received more than 90,000 comments, with approximately three-quarters opposed to the rules and one-quarter in support. Many were concerned that the new rules would increase regulatory burden and potential adverse effects from programs losing eligibility to participate in HEA, Title IV federal student aid programs. Others supported the regulation of gainful employment programs, particularly with regard to the student loan debt of students who attend them.

On February 19, 2011, the House of Representatives passed H.R. 1, the Full-Year Continuing Appropriations Act, 2011, which among other things would have prohibited the use of funds appropriated by the act to implement, administer, or enforce regulations or rules related to the term “gainful employment.” The Senate failed to take action on H.R. 1.

This report provides an overview of the Department of Education’s final rules on gainful employment.


Date of Report: September 20, 2011
Number of Pages: 27
Order Number: R42011
Price: $29.95

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Secretary of Education’s Waiver Authority with Respect to Title I-A Provisions Included in the Elementary and Secondary Education Act

To: House Committee on Education and the Workforce
Attention: Majority Committee Staff

From: Emily Barbour, Legislative Attorney
Jody Feder, Legislative Attorney
Rebecca Skinner, Specialist in Education Policy

This memorandum responds to your request for an analysis of the Secretary of Education’s waiver authority with respect to Title I-A provisions included in the Elementary and Secondary Education Act (ESEA). This memorandum is substantially identical to a November 29, 2010 memorandum that was prepared for committee staff by Jody Feder, Legislative Attorney, and Rebecca Skinner, Specialist in Education Policy. At the Committee’s request, the November 2010 memorandum was reviewed, and its analysis was determined to be both accurate and timely under current circumstances. That memorandum, the body of which begins in the next paragraph, examines: (1) the Secretary’s use of waivers in the circumstances the Committee specified; (2) the extent to which the Secretary can condition waivers on an applicant’s performance of other actions; and (3) the scope of the Secretary’s waiver authority in the instances the Committee identified.

The first section of the memorandum begins with a general overview of the authority provided to the Secretary under Section 9401 of the ESEA to grant case-by-case waivers under the ESEA. This discussion examines the requirements that waiver requests must meet and limitations on the Secretary’s authority in this area. This is followed by an examination of any potential waiver authority or prohibitions on waivers included in Title I-A. The next section of the memorandum discusses current uses of waiver authority by the Secretary. The following section provides a legal analysis of the scope of the Secretary’s authority to waive ESEA requirements. This discussion is followed by an analysis of whether the Secretary has the authority to require states and local educational agencies (LEAs) to take an action not required by law in order to receive a waiver. The last part of the memorandum discusses the potential use of the Secretary’s waiver authority in the five specific examples you specified. Given the general interest in this topic, CRS may provide some or all of the information contained in this memorandum to other congressional requesters.


Date of Report: June 28, 2011
Number of Pages: 11
Order Number: M-062811
Price: $29.95

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Elementary and Secondary Education Act Reauthorization: Comparison of Proposed Charter School Legislation (H.R. 2218) and Current Law

Rebecca R. Skinner
Specialist in Education Policy

The primary source of federal aid to K-12 education is the Elementary and Secondary Education Act (ESEA). The ESEA was initially enacted in 1965 (P.L. 89-10), and was most recently amended and reauthorized by the No Child Left Behind Act of 2001 (NCLB, P.L. 107-110), which authorized virtually all ESEA programs through FY2008. The 112th Congress is actively engaged in work to amend the ESEA. On June 16, 2011, Representative Duncan Hunter, Chairman of the Early Childhood, Elementary, and Secondary Education Subcommittee of the House Education and the Workforce Committee, introduced the Empowering Parents through Quality Charter Schools Act (H.R. 2218). The bill was subsequently ordered reported by the House Education and Workforce Committee on July 22, 2011 (H.Rept. 112-178). This bill would modify the existing Charter Schools Program, Per-Pupil Facilities Aid program, and Credit Enhancement Initiatives to Assist Charter School Facility Acquisition, Construction, and Renovation program (hereinafter referred to as the Credit Enhancement program) currently authorized under ESEA Title V-B-1 and 2.

H.R. 2218 would make substantial changes to Title V-B-1 and 2, while preserving many of the provisions of current law, albeit in a different structure. Some of the most substantial changes that would be made by H.R. 2218 include the following: 

•       Expand the scope of the Charter School Program to include funding for new charter schools; replicable, high-quality charter school models; and the expansion of high-quality charter schools. 

•       Change applicant eligibility for the Charter School Program. 

•       Extend the grant period under the Charter School Program from up to three years to up to five years for both state entities receiving grants from the Secretary of Education and eligible applicants receiving grants from state entities. 

•       Emphasize the need for charter schools to serve all students, including children with disabilities and English language learners, and increase the focus placed on having a quality chartering process at the state and local levels. 

•       Retain both the Per-Pupil Facilities Aid program and the Credit Enhancement program with provisions similar to those contained in current law, but restructure current law provisions to authorize both programs under a new section entitled Facilities Financing Assistance. Priority would be given to using funds for the Credit Enhancement program over the use of funds for the Per-Pupil Facilities Aid program. 

•       Change the use of funds for national activities to focus on providing charter school startup grants to eligible applicants and disseminating technical assistance to state entities in awarding subgrants, disseminating best practices, and evaluating the impact of the charter school program. 

•       Alter the authorization of funds for all three charter school programs, as well as for national activities, authorizing 15% of the total appropriation for Facilities Financing Assistance, up to 5% for national activities, and the remaining funds for the Charter School Program.

Date of Report: September 2, 2011
Number of Pages: 58
Order Number: R41877
Price: $29.95

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The Post-9/11 Veterans Educational Assistance Improvements Act of 2010, As Enacted

Cassandria Dortch
Analyst in Education Policy

The Post-9/11 Veterans Educational Assistance Act of 2008 (Title 38 U.S.C., Chapter 33), commonly called the Post-9/11 GI Bill, was enacted as Title V of P.L. 110-252. It became effective August 1, 2009. Following enactment, concerns were raised about several aspects of the Post-9/11 GI Bill, and calls were made for the program to be amended. These included proposals to expand eligibility and to improve the program’s implementation, administration, and benefits. The Post-9/11 Veterans Educational Assistance Improvements Act of 2010 (P.L. 111-377) was enacted on January 4, 2011. It amends the Post-9/11 GI Bill and other veterans educational assistance programs. Major amendments made by P.L. 111-377 to the Post-9/11 GI Bill and other veterans educational assistance programs include the following: 

• Certain full-time duty by National Guard members under Title 32 is included in the qualifying active duty service period. 
• Active duty service obligations based on an appointment at the U.S. Coast Guard Academy (USCGA) are excluded from the qualifying active duty service period. 
• Up to full in-state tuition and fees less certain waivers, reductions, scholarships, and assistance to degree-seeking individuals will be available to those who attend public institutions of higher learning (IHLs) more than half-time. 
• Up to $17,500 in tuition and fees will be available to degree-seeking individuals who attend private or foreign IHLs more than half-time. 
• A reduced monthly housing allowance will be provided to degree-seeking individuals who attend IHLs more than half-time but less than full-time. 
• Degree-seeking individuals who attend IHLs more than half-time exclusively through distance learning will be eligible for a monthly housing allowance. 
• Degree-seeking individuals on active duty who are enrolled more than half-time will be eligible for a books and supplies stipend, but the tuition and fees benefit will be limited. 
• The approved programs of education will be expanded to include on-the-job, apprenticeship, flight, and correspondence training and programs at non-IHLs. 
• The number of licensing and certification tests eligible for reimbursement will be unlimited as long as the individual has sufficient entitlement remaining. 
• The transfer of benefits to dependents will be authorized for commissioned officers in the Public Health Service (PHS) and National Oceanic and Atmospheric Administration (NOAA). 
• Reporting fees to training establishments and educational institutions for administering veterans educational assistance programs will be increased. 
• Individuals eligible for both Vocational Rehabilitation and Employment (VR&E; Title 38 U.S.C., Chapter 31) and the Post-9/11 GI Bill will be eligible for an increased housing allowance. 
• Most payments between academic terms for all the veterans educational assistance programs will be eliminated.

Date of Report: August 17, 2011
Number of Pages: 35
Order Number: R41620
Price: $29.95

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