The Catholic University of America
Office of the General Counsel
620 Michigan Ave., NE
Washington, DC 20064
202-319-5142
Memorandum
TO:
Brian Johnston, Assistant Vice President, Institutional Research
FROM:
Peg O’Donnell, Associate General Counsel
and Scott Goldschmidt, Law Clerk
DATE:
June 21, 2011
RE:
Disclosure Requirements Relating to Promotional Materials and Reporting
Requirements for New Certificate Programs
I.
Disclosure Requirements Relating to Promotional Materials
Effective July 1, 2011, the Department of Education will be requiring gainful
employment programs to make certain disclosures with regard to all promotional materials.1
Under these regulations, an institution must disclose the occupations (by names and SOC codes)
that the program prepares students to enter,2 the on-time graduation rate for students completing
the program,3 the costs of tuition and fees, books and supplies and room and board,4 the
1
34 C.F.R. §668.6 (2010). For a more detailed description of each of the disclosure requirements, please see the
original Gainful Employment Memo, June 7, 2011.
2
Id. at §668.6(b)(1)(i).
3
Id. at §668.6(b)(1)(ii).
4
Id. at §668.6(b)(1)(iii).
placement rate for students completing the program,5 and the median loan debt incurred by
students who completed the program.6 Along with providing this information on all promotional
materials, this information must also be posted on the institution’s website.7
The various disclosures must be prominently displayed by the institution “in a simple and
meaningful manner on the home page of its program Web site.”8
If a page is created with the required information, OGC can link to that new page from
the current consumer disclosure page online at
http://counsel.cua.edu/StudLife/publications/consumerinfo.cfm but the page information should
live on the Metropolitan College page and also on any Department of Education page for a
program that is considered gainful employment.
This information must be displayed in an open format that can be retrieved, downloaded,
indexed and searched by commonly used search engines.9 Any other web sites containing
general, academic, or admissions information about this program must have a prominent and
meaningful link back to the home page with the disclosure materials.10 In the future, institutions
will also need to provide this information to the Department of Education using a form that the
Secretary will develop.11 This form will not be ready by July 1, 2011.
5
Id. at §668.6(b)(1)(iv).
Id. at §668.6(b)(1)(v).
7
Id. at §668.6(b)(2)(i).
8
Id. at §668.6(b)(2)(ii).
9
Id. at §668.6(b)(2)(iii). (“An open format is one that is platform-independent, is machine-readable, and is made
available to the public without restrictions that would impede the reuse of that information.”)
10
Id. at §668.6(b)(2)(ii).
11
Id. at §668.6(b)(2)(iv).
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2
The regulations further direct that, when feasibly possible, disclosure information must
be provided on any of an institution’s promotional materials.12 If providing this information is
not feasible because of the size or nature of the advertisement, invitation, or solicitation (i.e. a
billboard, metro ad, email or postcard), then the institution may include either the printed URL or
live link to where the disclosure information can be found, along with a clear explanation of the
information available.13 An example of this disclosure, from the Department of Education, could
read: “For more information about our graduation rates, the median debt of students who
completed the program, and other important information, please visit our website at,
www.XYZcollege.edu/ABCprogram/disclosure.”14
Note that under 34 CFR 668.6 (b) (effective July 1, 2011) the institution must disclose
on its Web site and promotional materials the placement rate for each program that is subject to
the gainful employment provisions if that information is available or can be determined from
institutional placement rate calculations, and identify the State agency or accrediting agency
under whose requirements the rate was calculated. 15 If an accrediting agency or State requires an
institution to calculate a placement rate only at the institutional level, the institution must
use the agency or State methodology to calculate the placement rate for each of its programs
from information it already collects and must disclose the program-specific placement rates in
accordance with 34 CFR § 668.6(b). Eventually, this methodology will be replaced by an IPEDS
developed placement rate methodology.
II.
Reporting Requirements for New Certificate Programs
Gainful Employment – FAQ, Department of Education, http://www.ifap.ed.gov/GainfulEmploymentInfo/
2011GEFAQ.html#d-q3 (last visited June 20, 2011).
13
Id.
14
Id.
15
75 Fed. Reg. 66831, 66838, Oct. 29, 2010
12
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Effective July 1, 2011, an institution must notify the Secretary of Education when it
intends to add a new Gainful Employment Program.16 This notification must occur 90 days
before the first day of class.17 The institution may begin offering the new gainful employment
program, without Department of Education approval, unless the Department requests additional
information or informs the institution to delay start of the program.18 This Department of
Education request must come at least thirty days prior to the date the program is scheduled to
begin.19 Institutions on provisional certification must have the Secretary’s approval before
beginning any new programs.20
The actual notification from the institution must “describe the institution’s determination
that the new program will meet employment market needs… [and] describe how the program
was reviewed or approved by, or developed in conjunction with, external groups and its
accrediting agency.”21 For programs taking place on the institution’s campus, the notice must
describe how the program was designed to meet local market needs, and for online programs, the
notice must describe how the program meets regional or national market needs.22 The description
of the program must also contain any wage analysis the institution may have performed,
including and Bureau of Labor Statistics data related to the program.23
The notice must describe how the “program was reviewed or approved by, or developed
in conjunction with, business advisory committees, program integrity boards, public or private
16
34 C.F.R. §600.10(c).
Id.
18
Implementation of Regulatory Requirements Related to Gainful Employment Programs, Department of
Education, Apr. 20, 2011, http://ifap.ed.gov/dpcletters/GEN1110.html.
19
Id.
20
34 C.F.R. §668.13(c)(4).
21
Implementation of Regulatory Requirements Related to Gainful Employment Programs, Department of
Education, Apr. 20, 2011, http://ifap.ed.gov/dpcletters/GEN1110.html. See also 34 CFR 600.20(d)(2).
22
34 C.F.R. §668.20(d)(1)(ii)(F)(2)(i).
23
Id.
17
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oversight or regulatory agencies, and businesses that would likely employ graduates of the
program.”24 Documentation that the program has been approved by its accrediting agency must
be provided along with the first day of class of the new program.25 If an institution violates any
of the Department’s requirements, it may need to repay all Title IV and HEA program funds
received for that program.26
Regulations in 34 CFR § 600.20(d)(2)
(d) Notice and application. (1) Notice and application procedures. (i) To satisfy the requirements
of paragraphs (a), (b), and (c) of this section, an institution must notify the Secretary of its intent
to offer an additional educational program, or provide an application to expand its eligibility, in a
format prescribed by the Secretary and provide all the information and documentation requested
by the Secretary to make a determination of its eligibility and certification.
(ii)(A) An institution that notifies the Secretary of its intent to offer an educational program
under paragraph (c)(3) of this section must ensure that the Secretary receives the notice described
in paragraph (d)(2) of this section at least 90 days before the first day of class of the educational
program.
(B) An institution that submits a notice in accordance with paragraph (d)(1)(ii)(A) of this section
is not required to obtain approval to offer the additional educational program unless the Secretary
alerts the institution at least 30 days before the first day of class that the program must be
approved for title IV, HEA program purposes. If the Secretary alerts the institution that the
additional educational program must be approved, the Secretary will treat the notice provided
about the additional educational program as an application for that program.
(C) If an institution does not provide timely notice in accordance with paragraph (d)(1)(ii)(A) of
this section, the institution must obtain approval of the additional educational program from the
Secretary for title IV, HEA program purposes.
(D) If an additional educational program is required to be approved by the Secretary for title IV,
HEA program purposes under paragraph (d)(1)(ii)(B) or (C) of this section, the Secretary may
grant approval, or request further information prior to making a determination of whether to
approve or deny the additional educational program.
(E) When reviewing an application under paragraph (d)(1)(ii)(B) of this section, the Secretary
will take into consideration the following:
24
Id. at §668.20(d)(1)(ii)(F)(2)(ii).
Id. at §668.20(d)(1)(ii)(F)(2)(iii-iv).
26
Id. at §600.10(c)(3).
25
5
(1) The institution's demonstrated financial responsibility and administrative capability in
operating its existing programs.
(2) Whether the additional educational program is one of several new programs that will replace
similar programs currently provided by the institution, as opposed to supplementing or
expanding the current programs provided by the institution.
(3) Whether the number of additional educational programs being added is inconsistent with the
institution's historic program offerings, growth, and operations.
(4) Whether the process and determination by the institution to offer an additional educational
program that leads to gainful employment in a recognized occupation is sufficient.
(F)(1) If the Secretary denies an application from an institution to offer an additional educational
program, the denial will be based on the factors described in paragraphs (d)(1)(ii)(E)(2), (3), and
(4) of this section, and the Secretary will explain in the denial how the institution failed to
demonstrate that the program is likely to lead to gainful employment in a recognized occupation.
(2) If the Secretary denies the institution's application to add an additional educational program,
the Secretary will permit the institution to respond to the reasons for the denial and request
reconsideration of the denial.
(2) Notice format. An institution that notifies the Secretary of its intent to offer an additional
educational program under paragraph (c)(3) of this section must at a minimum-(i) Describe in the notice how the institution determined the need for the program and how the
program was designed to meet local market needs, or for an online program, regional or national
market needs. This description must contain any wage analysis the institution may have
performed, including any consideration of Bureau of Labor Statistics data related to the program;
(ii) Describe in the notice how the program was reviewed or approved by, or developed in
conjunction with, business advisory committees, program integrity boards, public or private
oversight or regulatory agencies, and businesses that would likely employ graduates of the
program;
(iii) Submit documentation that the program has been approved by its accrediting agency or is
otherwise included in the institution's accreditation by its accrediting agency, or comparable
documentation if the institution is a public postsecondary vocational institution approved by a
recognized State agency for the approval of public postsecondary vocational education in lieu of
accreditation; and
(iv) Provide the date of the first day of class of the new program.
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