aaron d. lacey thompson coburn llp. introduction thompson coburn llp full-service firm with 375+...

Consumer Information Boot CampStrategies for Managing the Expanding Universe

of Annual Disclosure and Reporting Requirements

Aaron D. LaceyThompson Coburn LLP

INTRODUCTION

Thompson Coburn LLP• Full-service firm with 375+ attorneys• Offices in Chicago, Los Angeles, St. Louis, Southern Illinois, and

Washington, D.C.

Higher Education Practice• Counsel clients concerning federal, state, and accrediting agency laws

and standards, to include federal financial aid programs and consumer information.

• Represent institutions in litigation, as well as administrative proceedings before state licensing entities, accrediting agencies, and federal government.

• Assist clients with the postsecondary mergers and acquisitions, contract drafting and negotiation, policy creation and implementation, and compliance systems design.

INTRODUCTION

Aaron D. Lacey• Partner, Higher Education Practice• Served four years as Senior Vice President of Regulatory

Affairs and Strategic Development for a multi-campus, postsecondary education company, with 24 campus locations and online division.

• Prior to going in-house, served eight years in the postsecondary education practice of prominent Washington, D.C. law firm.

PRESENTATION OUTLINE

General CI Strategy• CI Resources, CI Systems, Housing CI, Tracking CI,

Disclosing CI Strategy for Select CI Disclosures• Net Price Calculator, Annual Security Reports, Drug

and Alcohol Prevention Information, Student-Right-to-Know, Voter Registration, FERPA, Gainful Employment Disclosures

GENERAL CONSUMER INFORMATION STRATEGY

CI RESOURCES

IFAP Consumer Information Page• CI Disclosures at a Glance (31 Pages; last updated

April 2014)• 11 Training Activities (last updated 2012-2014)

• Institutional and Financial Assistance Information, Drug and Alcohol Prevention, Consumer Information for Student Athletes Student Right-to-Know Act, Campus Security, FERPA, Safeguarding Customer Information, Fire Safety Reports and Student Housing, Misrepresentation, Loan Disclosures, Gainful Employment Disclosures

• http://ifap.ed.gov/qahome/qaassessments/consumerinformation.html

CI RESOURCES

Higher Education Compliance Alliance• Created by the National Association of College

and University Attorneys in partnership with thirty other higher education associations, provides centralized repository of information and resources for compliance with federal laws and regulations.

• Includes Resources by Topic and Compliance Matrix

• http://www.higheredcompliance.org

CI RESOURCES

Campus Legal Information Clearinghouse• Collaborative effort between American Council on

Education and The Catholic University of America's Office of General Counsel.

• Resources by Topic• http://counsel.cua.edu

CI RESOURCES

REGucation • Blog offering practical advice and insight to assist

postsecondary community to manage regulatory environment.

• Focus includes universe of disclosure, reporting, and training requirements associated with participation in the federal student aid programs.

• http://thompsoncoburn.com/news-and-information/regucation.aspx

CI SYSTEMS

• Consumer information is an institutional responsibility; key data are controlled and produced by a wide range of individuals within the organization.

• Create systems designed (1) to direct to your attention information or correspondence relating to your CI responsibilities and (2) to facilitate coordination among campuses and administrative verticals.

CI SYSTEMS

• Put into place a Regulatory Correspondence Policy– Requires that all substantive correspondence

to/from regulators be copied to those responsible for CI

• Create and use CI flow charts

CI SYSTEMS

CI SYSTEMS

• Automate Monitoring of External Resources– My IFAP (Electronic Announcements, DCLs)– NASFAA, NAICU, AACC, APSCU – Inside Higher Education, Chronicle

• Create a Compliance Calendar

CI SYSTEMS

HOUSING CI

• Build a Resource Library– Compliance Calendar– Official Correspondence– Unofficial Correspondence– Current and Past CI Disclosures– Flow Charts and Evidence of CI Distribution– Laws and Regulations– Agency Guidance– Agency Tutorials and Training

DISCLOSING CI

• Build a CI Website– Post everything! Well, almost everything...– Holds all CI for all brands, unless

prohibited, or bad for business– Easier for students and regulators– Easier for staff– Facilitates Notice and Distribution–Mitigates exposure to student litigation

DRAFTING CI

• If possible, makes notices and disclosures location, time, and brand neutral

• Include revision date• Consider including annual distribution date if

annual distribution required• Place on company or school letterhead• Include statement regarding consistency

between oral statements and written disclosure• Take advantage of opportunity to offer

explanatory comments

STRATEGIES FOR SELECT CONSUMER INFORMATION

DISCLOSURES

Requirement: Must post net price calculator on website and include prominent disclaimer:– Stating estimate is not final, is not binding, and

may change;– Stating that student must complete FAFSA to

be eligible for FSA funds; and– Providing link to USED FAFSA website.

FEBRUARY: NET PRICE CALCULATOR


Timing: Must update NPC on an annual basis. USED releases updated versions of NPC template in January annually (e.g., template for 2013-14 data will be released in January 2015). Institutions using USED NPC template should update their NPC shortly thereafter.


Strategy: Use USED template; create CI flow chart; place link to NPC on CI Website.

Citation: 20 U.S.C. 1015a(a); 20 U.S.C. 1015a(h); DCL GEN 08-12, page 33.

Key Resource: http://nces.ed.gov/ipeds/resource/net_price_calculator.asp

MARCH: ANNUAL SECURITY REPORTS

Requirement: Each year, must (1) distribute to all students and employees Annual Security Report, to include crime statistics for incidents that occur on campus (2) report crime statistics to Department, and (3) if applicable, compile and distribute annual fire safety report. Prospective students and prospective employees must receive notice of report and receive report upon request.


Timing: Updated ASR and crime statistics must be published by October 1. Gathering crime statistics is most challenging piece, start early to permit time for agencies, campuses, and security personnel to respond.


Strategy: Ensure agency letter is detailed; use USED templates; keep copies of all correspondence; track correspondence and completion of tasks; post ASR to CI Website and distribute notice to new students and employees and annually to all; ensure notice satisfies specific requirements.

Citation: 34 CFR 668.41(a); 34 CFR 668.41(e); 34 CFR 668.46; 34 CFR Part 668 Subpart D, Appendix A.

Key Resource: http://www2.ed.gov/admins/lead/safety/campus.html; http://clerycenter.org.

LAGNIAPPE: VAWA

• In March 2013 Violence Against Women Reauthorization Act of 2013 (VAWA) amended Clery Act requiring schools (1) to compile statistics concerning sexual assault, domestic violence, dating violence, and stalking; and (2) to adopt policies, procedures, and programs pertaining to these crimes in their ASR.

• Under VAWA, 2014 ASR should have included new policies, as well as new statistics for 2013 (best effort). New statistics for 2013 and 2014 will be reported in 2015 ASR.

• New regulations issued October 20, 2014. Review carefully - they go well beyond VAWA!

APRIL: DRUG & ALCOHOL ABUSE PROGRAM

Requirement: Must institute drug and alcohol abuse program, consisting of at least two parts:1. Annually distribute in writing to each student and employee:• Standards of conduct that clearly prohibit the unlawful possession, use, or

distribution of illicit drugs and alcohol by students and employees on the school’s property or as part of any of the school’s activities

• Description of applicable legal sanctions under state, local, and federal law• Description of health risks• Description of available counseling, treatment, rehabilitation, or re-entry

programs• Clear statement that school will impose sanctions for violation of

standards of conduct and a description of sanctionsStudents who enroll or employees who are hired after the annual distribution must receive the information.


2. Conduct biennial review of school’s Drug and Alcohol Abuse program that:• Determines the effectiveness of the program and

implements needed changes• Determines the number of drug and alcohol-related

violations and fatalities that occur on the school’s campus or as part of the school’s activities, and are presorted to campus officials

• Determines the number and type of sanctions that are imposed

• Ensures that sanctions are consistently enforcedBiennial review is available to public upon request.


Timing: Flexible, can be carried out at any point during year.Strategy: Distribute annually to every student and employee and supply to all new students and employees upon arrival; have students and employees sign evidence of receipt; save annual distribution notices and record results of biennial review; post info to CI Website; ensure policies match ASR.


Citation: 34 CFR 86

Key Resource: http://ifap.ed.gov/qahome/qaassessments/consumerinformation.html

LAGNIAPPE: FSA PENALTIES FOR DRUG VIOLATIONS

Effective August 14, 2008, must provide to every student upon enrollment a separate, clear, and conspicuous written notice with information on the FSA Penalties for drug law violations detailed in 20 U.S.C. 1091(r)(1). Also, to any student who has lost FA eligibility due to drug law violations, must provide separate, clear, conspicuous written notice of the loss and advise of ways to regain eligibility under 20 U.S.C. 1091(r)(2). See 34 CFR 668.40; DCL GEN 08-12, pages 101 through 102.

LAGNIAPPE: FSA PENALTIES FOR DRUG VIOLATIONS

Prepare separate, one-page notice with signature block, provide with Drug and Alcohol Abuse Program disclosure; save annual distribution notice; post info to CI Website.

MAY 1: EMERGENCY SYSTEM TEST

Requirement: Must develop and test emergency response and evacuation procedures on at least an annual basis.

Timing: May 1 - because its May Day!

Strategy: Record evidence that test was conducted; remember that this is not just a compliance exercise; consider third-party providers.

MAY 1: EMERGENCY SYSTEM TEST

Citation: 34 CFR 668.46(g)(6).

Key Resources: http://www2.ed.gov/admins/lead/safety/campus.html; http://clerycenter.org.

JUNE: STUDENT-RIGHT-TO-KNOW

Requirement: Must annually make available completion/graduation rate and, if applicable, transfer-out rate; must circulate detailed notice of availability.

Timing: Annual notice can be made at any time, but must publish most recent SR2K data by July 1 of each year; data reported annually in IPEDS Graduation Rate Survey (closed February 26 in 2014).

JUNE: STUDENT-RIGHT-TO-KNOW

Strategy: Old model disclosure no longer sufficient; leave time to produce disaggregated data; make sure disclosure explains data; post data to CI Website and circulate detailed notice; keep record of notice distribution.

Citation: 34 CFR 668.41(a) - (d); 34 CFR 668.45; 34 CFR 668.8(b)(1)(ii)

Key Resource: http://ifap.ed.gov/qahome/qaassessments/consumerinformation.html

LAGNIAPPE: RETENTION RATES

• Must make available the retention rate of certificate or degree seeking, first-time, undergraduate students; must circulate detailed notice of availability. 34 CFR 668.41(d)(3).

• Include with SR2K disclosure; Data reported in IPEDS Fall Enrollments Survey (closed April 23 in 2014); will be available for easy inclusion.

• Make sure disclosure explains data; post data to CI Website and circulate detailed notice; keep record of notice distribution.

DEFUNCT SR2K DISCLOSURE

SAMPLE MODERN SR2K DISCLOSURE

AUGUST: VOTER REGISTRATION INFORMATION

Requirement: Make good faith effort to distribute voter registration form (for federal elections and state elections for governor or other State chief executive) to every student. Will be considered in compliance if electronically distribute voter registration form (can provide link where form can be downloaded). Electronic message must be devoted exclusively to voter registration.

Timing: Quarterly distribution best. But in the least, must be sufficiently in advance of November elections.

AUGUST: VOTER REGISTRATION INFORMATION

Strategy: Provide quarterly notice to all students (and employees) via email with link to registration form on state site; discuss importance of voting, set out state and federal election calendar; keep record of distribution notice; post information to CI Website.

Citation: 20 USC 1094(a)(23) and DCL GEN 08-12.

Key Resource: U.S. Election Assistance Commission at http://www.eac.gov/voter_resources/register_to_vote.aspx

NOVEMBER: ANNUAL FERPA NOTICE

Requirement: Must annually provide notice to all students about:• Right to review educational records, request amendment

of records, consent to disclosures or personally identifiable information, and file complaints with USED;

• Procedures for reviewing educational records and requesting amendment of records; and

• Policy regarding disclosures to school officials with legitimate educational interest in educational records.

NOVEMBER: ANNUAL FERPA NOTICE

Timing: Flexible, can be carried out at any point during year.

Strategy: Make sure all required elements included; use model forms; distribute via email and post to CI Website; keep record of notice distribution.

Citation: 34 CFR 668.41(c) and 34 CFR Part 99.

Key Resource: Family Policy Compliance Office at http://www2.ed.gov/policy/gen/guid/fpco/index.html

LAGNIAPPE: FERPA DIRECTORY INFORMATION

• To disclose directory information without prior consent, must provide students notice of directory information that include ( 1) types of information school has designated as directory information; and (2) student’s right to refuse use of directory information; and (3) time period student has for notifying school in writing. 34 CFR 99.37.

• In addition to including with annual FERPA notice, post directory information notice on CI Website and put it in your application for admission.

DECEMBER: UPDATE GE DISCLOSURE TEMPLATES

Requirement: For each GE program, must disclose in promotional materials mentioning program and on school website:• Department of Labor SOC Code(s) related to program CIP Code

with links to O*NET occupational profiles;• On-time graduation rate;• Tuition and fees (normal time);• Typical costs for books and supplies, and room and board, if

applicable;• Job placement rate (fed formula never developed, so only if you

calculate state/accreditor rates); and• Median loan debt incurred by students who completed the

program (separately by Title IV loans, private loans, and institutional debt).


Timing: Effective January 31, 2014, institutions must use Gainful Employment Disclosure Template (GEDT) to create webpage containing the required disclosure information for each GE program. Institutions expected to update GE disclosure information at least annually.


Strategy: Update cost and fee data in real-time to mitigate exposure to misrepresentation claims; for same reason, consider updating on-time graduation rates and median loan info each year after June 30, and outcomes after annual report go in; otherwise update everything in December; create CI flow chart.

Citation: 34 CFR 668.6(b)

Key Resource: IFAP GE Page: http://ifap.ed.gov/GainfulEmploymentInfo/

LAGNIAPPE: PROPOSED GE DISCLOSURE CHANGES

• Proposed changes would expand the amount of information that “may” be required to be disclosed;

• With limited exception, disclosures would be made only for students who received federal financial aid funds;

• Disclosures could be required to be disaggregated by whether student completed the program;

• USED could change the required disclosures from year to year;


• Still would require update at least annually;

• Continued option to disclose separate templates for each location or form of GE program if leads to clearer information for students (GE Electronic Announcement # 25 (September 28, 2011)); and

• Would require hardcopy GEDT disclosure to any prospective student.


• Would include calculation of additional rates (most would be calculated by USED using reported information):– Four completion rates per GE program; two based on

full-time enrollment on first day, and two based on part-time enrollment on first day.

– Two withdrawal rates per GE program; the percentage who withdrew within normal time, and the percentage who withdrew within 150 percent.

– A borrower based repayment rate for borrowers with FFEL or Direct Loans for enrollment in a GE program.


• First set of expanded disclosures (for results of AY 2014-15 and including disclosures based on information that USED must provide) “likely” required by January 2016.

CONTACT INFORMATION

Aaron D. LaceyPartner, Higher Education Education PracticeThompson Coburn [email protected]

CONDITIONS OF USE/DISCLAIMER

• The purpose of this presentation is to provide news and information on legal issues and all content provided is for informational purposes only and should not be considered legal advice.

• The transmission of information from this presentation does not establish an attorney-client relationship with the viewer. Participants should not act on the information contained in any of the materials or presentation without first consulting retained legal counsel.

• If you desire legal advice for a particular situation, you should consult an attorney.

aaron d. lacey thompson coburn llp. introduction thompson coburn llp full-service firm with 375+...

Documents

housing ci

tracking ci

attention information

ci resources regucation

alcohol prevention information

higher education associations

student housing

federal student aid