New Ventures in 2013: Changes at Talbert & Eitel, PLLC

Posted by Kent Talbert on January 10, 2013

To our friends and colleagues, Talbert & Eitel, PLLC brings news on the business and professional fronts in 2013.  

On January 12, I will open a new law firm--Kent D. Talbert, PLLC--and continue to represent clients on education-related legislation, regulations, compliance matters, and cases.  My address and phone will remain the same:  1455 Pennsylvania Avenue, Suite 400, Washington, DC 20004 and 202.652.2324.  I will continue our education blog--www.educationlawreview.com--and have a new email, kent.talbert@kenttalbertlaw.com.    

On January 14, Bob Eitel will join Career Education Corporation (CEC) as Vice President of Regulatory Operations, National Accredited Institutions, based in Schaumburg, Illinois.  At CEC, he will join his U.S. Department of Education colleague, Diane Jones (formerly Assistant Secretary of Education for Postsecondary Education) who now serves as CEC's Senior Vice President for External and Regulatory Affairs.  Bob will forward his new company contact information in the next few weeks.  In the interim, you may reach Bob at bob.eitel@verizon.net.

We are excited about these changes, and thankful to the clients, friends, and colleagues who have supported our professional endeavor over the last three years.  We look forward to keeping in touch with each of you.  

Decision on Gainful Employment Regulations

Posted by Robert Eitel on July 02, 2012

I need to travel out of town more often.  While I was in Chicago for the NACUA Annual Conference last week through Saturday, the courts decided the Patient Protection and Affordable Care Act and the gainful employment litigation case filed by APSCU against the U.S. Department of Education.  

By now, you all know the result of the Supreme Court case in "Obamacare."  (More later on the intriguing language arising from the Medicaid portion of the case and how the ruling might lengthen the strings that attach to federal aid to education up the road.)

For many postsecondary institutions, however, last Saturday's ruling in APSCU v. Duncan will likely have a more immediate impact.  I have not yet read the opinion, but it appears that the Court has vacated and remanded to the Department the debt measure rule (34 C.F.R. § 668.7), the program approval rule (§ 600.10(c)-(d)), and the reporting portion of the reporting and disclosure rule (§ 668.6(a)).  The disclosure portion of the latter rule (§ 668.6(b)-(c)) stands.  The Court's judgment succinctly sets forth the ruling.

 

Court of Appeals Decides APSCU Legal Challenge

Posted by Robert Eitel on June 05, 2012

As many who read this blog will recall, the Association of Private Sector Colleges and Universities (APSCU) filed a complaint in D.C. federal district court challenging the U.S. Department of Education’s misrepresentation, incentive compensation, and distance education-state authorization regulations, which became effective July 1, 2011.  On July 12, 2011, the district court issued its decision in the case and vacated the distance education regulation (34 C.F.R.  § 600.9(c))--thus allowing the remaining regulations to take effect.

Both APSCU and the Department appealed the decision of the district court to the United States Court of Appeals for the District of Columbia Circuit.  Oral argument occurred last February.  Today, June 5, 2012, the court of appeals issued its ruling in the case.  A very quick review of the opinion indicates that the court

  • found that the Department exceeded the HEA to the extent the misrepresentation regulations authorize the Secretary to sanction an institution without providing it with statutorily required protections;
  • otherwise let the misrepresentation regulations stand;
  • sustained the incentive compensation regulations, with two relatively minor exceptions that the Department will be able to correct on remand; 
  • vacated the distance education regulation due to the Department's violation of the APA; and
  • let stand the state authorization regulations.

I will post additional observations after analyzing the court's 55 page opinion.

 

Has the Department of Education Missed a Deadline for its December NACIQI Hearing?

Posted by Robert Eitel on November 08, 2010

As folks who follow accreditation matters know, the first meeting in several years of the National Advisory Committee for Institutional Quality and Improvement (NACIQI) is set for December 1-3, 2010.  That meeting was originally scheduled for September, but last August the Department postponed it to December. 

But it looks as though the Department may have missed a regulatory deadline relating to the December meeting.  34 C.F.R. § 602.34(d) requires that the Department publish at least thirty days prior to the NACIQI meeting a Federal Register notice inviting interested parties, including those who have filed written comments, to make oral presentations before the NACIQI.  The 602.34(d) notice is critical because it often, if not always, sets a deadline for making the request to present oral testimony, explains the mechanics for making the request, and includes other information helpful to the presenters. 

Interestingly, in its August 23, 2010, notice rescheduling the NACIQI hearing from September to December, the Department said that it would publish another notice asking for oral presentations:
 
[A] subsequent Federal Register notice will publish another meeting notice and invite individuals and groups to submit requests to make oral presentations before the NACIQI on the agencies proposed for review.
 
75 Fed. Reg. 51,758 (2010).  During today's teleconference meeting of the NACIQI, the Department staff indicated that the Department intended to publish the required notice in the next day or two.  But it is unfortunate that the Department has missed an important regulatory deadline for the first meeting in years of the NACIQI. 

NACIQI Elects Chairman and Vice Chairman

Posted by Robert Eitel on November 08, 2010

The National Advisory Committee for Institutional Quality and Improvement (NACIQI) held a teleconference meeting today, November 8, to handle various administrative matters relating to its upcoming December 1-3 meeting.  I had the opportunity to attend the meeting.

The NACIQI unanimously elected Cameron Staples its Chairman and Arthur Rothkopf its Vice Chairman.  Interestingly, Staples (a member appointed to the NACIQI by the House Democrats) was nominated by Larry Vanderhoof (a Senate Democratic appointee) and seconded by Arthur Keiser (a House Republican appointee).  Rothkopf (a House GOP appointee) was nominated by Susan Phillips (appointed by Secretary Duncan) and seconded by Bruce Cole (a Senate Republican appointee).  

Both Staples and Rothkopf have impressive resumes.  Staples is a member of the Connecticut House of Representatives and chairman of its finance committee.  He has been a member of the Connecticut legislature since 1993 and is a Visiting Lecturer in Law at Yale Law School teaching legislative advocacy.   He ran briefly for Attorney General earlier this year but withdrew after four months of campaigning.

Rothkopf has had a long career in law, government, and education.  Most recently, he served as a senior vice president at the U.S. Chamber of Commerce overseeing education and workforce initiatives.  Prior to that, he was President of Lafayette College in Pennsylvania, having come from the U.S. Department of Transportation, where he served as Deputy Secretary and General Counsel during the George H.W. Bush administration.  Rothkopf was a partner at a major D.C. law firm before joining 41's administration.

All in all, a good start that will provide the Committee with some seasoned leadership.

Over Regulation in Higher Education: Panel Discussion Oct. 13, 2010

Posted by Kent Talbert on October 12, 2010

As the deadline (November 1, 2010) rapidly approaches for the Department of Education to move final regulations out the door, The Heritage Foundation will host Dr. Richard Vedder, Distinguished Professor of Economics, Ohio University, and Dr. Richard Bishirjian, President and Professor of Government, Yorktown University from 2:00-3:00 pm on October 13, 2010 to speak on the topic "Regulating the College Dream: Obstacles in the Way to Upward Mobility."

Whether one is a for-profit or nonprofit college or university, hear how the Department's current proposed regulations could potentially lead to unintended consequences for higher education.       

Another Senate Hearing on For-Profits set for September 30, 2010

Posted by Kent Talbert on September 27, 2010

Just a few days shy of the expected adjournment of the 111th Congress, the U.S. Senate Committee on Health, Education, Labor and Pensions will hold another hearing on the for-profit higher education sector on Thursday, September 30, 2010, at 10:00 a.m, 216 Senate Hart Office Building.  Entitled "The Federal Investment in For-Profit Education:  Are Students Succeeding?", the witness list (as of September 27) includes Lauren Asher, President of the Institute for College Access and Success (Oakland, CA), Dr. Arnold Mitchem, President of the Council for Opportunity in Education (Washington, DC), Danielle Johnson (Tama, IA), and Kathleen Bittel (Acme, PA).