Deadline Approaches for Gainful Employment Disclosures

Institutions of higher education that receive Title IV funding must properly disclose certain information concerning course offerings that are or may be considered gainful employment programs by the U.S. Department of Education (DOE). The deadline for making these disclosures is January 31, 2013.

Gainful employment programs are those Title IV-eligible offerings aimed at providing students with skills and credentials to assist them in obtaining employment in a recognized occupation. For publics and nonprofits, these are typically vocational or certificate programs that do not lead to an associate's, bachelor's, graduate or professional degree. Excluded are programs for obtaining state teaching credentials as well as preparatory courses that do not lead to a degree but are otherwise necessary for enrollment in a degree-conferring program.

On June 24, 2011, the DOE issued an electronic announcement to aid institutions in determining whether an educational program is a gainful employment program. The DOE's guidance stated that:

• Virtually all educational programs offered by for-profit institutions are gainful employment programs, regardless of whether the program leads to a degree.
• All educational programs that lead to a degree awarded by a public or private nonprofit institution are not gainful employment programs.
• Virtually all non-degree educational programs awarded by a public or private nonprofit institution are gainful employment programs.

Public Disclosure Requirements

On June 30, 2012, the United States District Court for the District of Columbia vacated certain provisions of the DOE's gainful employment program, including the DOE reporting requirements, but left in place the public disclosure obligations. See Assoc. of Private Sector Colleges and Univ. (APSCU) v. Duncan, 11-cv-01314, (D.D.C. June 30, 2012).

As a result, to comply with the public disclosure requirements of 34 C.F.R. §668.6(b) educational institutions must publish all the following information by January 31:

• the occupation that the gainful employment program prepares students to enter, including the standard occupational classification (SOC) code
• the normal time within which a student can expect to complete the program
• the rate students actual graduate on-time, including leaves of absence
• the cost of tuition and fees, books, supplies, room and board broken out as separate entries
• the placement rate for students who complete the program, as determined by states or accrediting agencies
• the median debt incurred by students completing the program, listed by type of loan and calculated based on data received from students

This information must be provided to the public on the institution's website and through promotional materials for the institution's gainful employment programs, such as brochures, pamphlets, advertisements and course catalogues. Importantly, the information must be conveyed in a simple and meaningful manner, which generally means it cannot be obscured or relegated to the "fine print" and must be in a form accessible by prospective students with disabilities. The DOE has released templates in the past to aid institutions' disclosures related to gainful employment programs and has indicated it will be releasing a template in the future as well; however, because the DOE is currently seeking reconsideration of the APSCU v. Duncan decision, it is not expected that any template will be released prior to the January 31, 2013, disclosure deadline. Therefore, it is recommended that institutions review their programs now and ensure they are in compliance with any disclosure requirements.

If you have any questions about your institution's compliance obligations under Title IV of the Higher Education Act, please contact the authors of this alert or another member of Holland & Knight's national Education Team.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.