Beginning July 1, 2019, institutions will need to directly distribute Gainful Employment disclosures to prospective students before they enroll, and include the disclosures or links thereto in their GE program promotional materials.  Compliance will be required at least until the Department of Education’s pending changes to the GE rule take effect. Review the article below.

Direct Delivery of GE Disclosures Required Starting July 1

We recently wrote about the 2019 GE Disclosure Template, and the July 1, 2019 deadline for institutions to update their disclosures using that template. The U.S. Department of Education has now added two additional disclosure obligations to institutions’ plates.

Beginning July 1, 2019, institutions will be required to (1) directly distribute a GE disclosure to each prospective student in a GE program prior to enrollment, and (2) include the GE disclosure, or a link thereto, in all GE program promotional materials.

Special attention to the “direct distribution” requirement is warranted.  For the first time, institutions will need to document that eachprospective student who enrolls in a GE program was provided a disclosure prior to their signing an enrollment agreement, completing registration, or otherwise making a financial commitment to the institution.  Written or electronic confirmation of receipt will be required.

The implementation of the “direct distribution” requirement was unanticipated, since the Department has expressed serious reservations about the requirement and the burden it places on institutions across all sectors of higher education.  Indeed, several ED-issued extensions have until now prevented the requirement from taking effect. Moreover, we expect the requirement to be removed when ED publishes its broader rescission of the GE rule – likely before November 1, 2019. However, barring any last-minute changes, we view the Department’s latest announcement as a strong indicator that schools will have to comply with the requirement, at least for some time, beginning on July 1.

We provide additional information below on these dissemination requirements and the options institutions have for meeting them.  Please do not hesitate to contact Dan Brozovic, or another Powers attorney with whom you regularly work, if you have questions or need assistance in establishing a compliant distribution process.

Direct Delivery to Prospective Students

Many will recall that while the “direct distribution” requirement was included in the Obama-era version of the GE rule published in 2014, it has never gone into effect due to a series of compliance date extensions from ED.

The requirement appears at 34 C.F.R. § 668.412(e), and includes the following salient aspects:

  • The disclosure must be delivered to any prospective student or any third party (e.g., a parent) acting on the student’s behalf.  Disclosures need not be provided to prospective students who plan to enroll in a non-GE program the institution offers.
  • The disclosure must be delivered before the prospective student “signs an enrollment agreement, completes registration, or makes a financial commitment to the institution.”
  • The disclosure must be provided “as a separate document,” meaning it cannot be consolidated into a larger disclosure form.

Institutions may either hand-deliver the GE disclosures or provide them via email, and the attendant procedural and recordkeeping requirements differ based on the method used.

  • For schools choosing to hand-deliver the GE disclosures:
    • Hand-delivery may occur “individually or as part of a group presentation.”  However, even if group presentations are used, a copy of the disclosure must be given to each student (again, as a “separate document”).
    • The school must obtain “written confirmation from the prospective student or third party” that they received a copy of the disclosure template.  The rule does not specify what form “written confirmation” must take, and institutions could meet the requirement in a variety of ways.  Regardless of how you obtain confirmation, make sure the student or third party is provided a disclosure form that they can keep.
    • We suggest that schools set up their recordkeeping systems in a way that documents what specific disclosure was provided (e.g., program and disclosure version).  And because disclosures must be provided pre-enrollment, schools should record both the date and time of delivery.


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