With just one more meeting to go, the Department of Education and an advisory committee tasked with ironing out the details of how to hold college programs accountable appear far from reaching consensus.

The 13-member panel, comprised largely of state officials, think tank researchers and higher ed lawyers, spent the last four days negotiating the rules of a new college earnings test called Do No Harm—which applies to all degree programs—as well as changes to the existing gainful-employment rule, an accountability metric that only applies to certificate programs and for-profits.

The department’s proposal, which aligns the two accountability metrics and holds all programs to the Do No Harm’s standards, has gone largely unchanged in the first four days of negotiation.

Under Do No Harm, all college programs, except undergraduate certificates, that fail to prove their students earn more than someone with only a high school diploma could lose access to federal loans, whereas the current version of gainful employment requires programs to show their graduates pass the earnings test and can reasonably pay off their debt. Programs that fail either test are cut off from all federal student aid.

Although officials have agreed to a series of smaller changes and said they were open to considering larger ones, none made so far address the key issues that are dividing the committee—axing the debt-to-earnings ratio and the Pell Grant penalty.

If the committee doesn’t reach consensus, the department is free to propose any changes to the regulation it wants, which could include scrapping gainful employment entirely. The department met with different committee members in private meetings Thursday, but it’s unclear if those talks will lead to compromises or flip votes.

“Consensus seems pretty unlikely at this point, since negotiators are still disagreeing on key provisions of the department’s drafted text,” said Emily Rounds, an education policy adviser at Third Way, a left-of-center think tank. “Anything is possible, and these caucuses could be productive, but I would be surprised if they reached consensus.”

Institutional representatives on the committee generally back the overall plan, while consumer protection advocates have taken issue with the department’s changes to gainful employment.

Reaching consensus at this point would likely require ED to significantly rework its original proposal.

“We have moved well into the vote-tallying stage,” one committee member said on the condition of anonymity to maintain good faith in the negotiation process. “The question is, does ED think it can get certain negotiators on board without caving on their original proposal to integrate gainful employment and Do No Harm.”

Department officials acknowledged the differences of opinion but said they would work to bring committee members together.

“The department is going to work on some language overnight based on the things that we’ve talked about today in our various caucuses,” Dave Musser, ED’s negotiator, said at the end of Thursday’s meeting. “We plan to come back in the morning prepared to share some of that language, recognizing that it may not be enough alone to get us to consensus. However, we want to show that we are doing everything that we can to get to a place where everyone can get to an agreement.”

2 Key Issues, 2 Key Sides

The Education Department and institutional representatives said the proposal plan creates a level playing field, calling it a more fair and simple means of accountability. State higher education officials and employers also joined in at times, agreeing that this plan would be the most legally sound and could end years of political ping-pong over higher ed accountability.

But committee members representing taxpayers and legal aid organizations as well as left-leaning research groups and consumer protection advocates argue that the department’s plan waters down existing standards, could put students at risk and may lead to legal challenges.

Although negotiators representing students who receive Title IV aid and students who are veterans have also expressed concerns about the changes to gainful employment, Tamar Hoffman, the committee member representing legal aid organizations, was the most outspoken throughout the week, saying there were “inherent issues” with the department’s current proposal.

“It does not make sense that we would allow the most economically disadvantaged students to use up very precious resources that they have in their lifetime Pell eligibility on programs that the department has deemed to be inadequate to receive loans,” she said at the close of Thursday’s meeting.

Ideally, Hoffman and others would like to see the debt-to-earnings test reinstated as well, though Pell appears to be the top priority.

Preston Cooper, the committee member representing taxpayers and the public interest, voiced more opposition at the beginning of the week as he highlighted his analysis of department data that showed ED’s plan would disburse an estimated $1.2 billion in Pell dollars annually to programs that failed the earnings test.

By Thursday, however, multiple of Cooper’s smaller concerns had been addressed through amendments, and he appeared poised to support the department’s proposal. The changes included added clarity about the ability to separate gainful employment and Do No Harm if courts strike down either test and that failed programs must pass the earnings test for at least two years before regaining loan eligibility.

Some Changes Made

Despite their overall support for the department’s plan, institutional advocates—particularly Jeff Arthur, the negotiator representing for-profit institutions, and Aaron Lacey, who represented nonprofit institutions—did try to change parts of the earnings test that they argued were unfair, like the age and work experience of high school graduates that college students were compared to, or the way rural institutions were held to the same standard as urban ones. So far, they haven’t been successful.

They had better success with an amendment that allowed existing students in failing programs to maintain the loan access needed to complete their degree. The department agreed to the change under a few conditions: The program will have to voluntarily agree to shut itself down after the first year of failure, terminate all enrollment for new students and enter a formal teach-out plan for those who remain.

Hoffman, however, said the change would only further water down existing accountability standards.

“To me, this seems like a giant loophole for institutions to try to maintain eligibility for Title IV funds when they aren’t actually delivering adequate services to students,” she said. “There isn’t anything here that prevents institutions from ceasing new enrollment in a failing program [while] at the same time standing up a [new] substantially similar program within the same institution.” (Title IV of the Higher Education Act authorizes federal financial aid programs such as the Pell Grant.)

The regulations do include some restrictions on starting new programs, but Hoffman and other student advocates from think tanks don’t believe they are strong enough to prevent institutions from developing other similarly poor-performing certificates and degrees.

By the end of Thursday’s meeting, the department had not yet publicly proposed any concessions to address Hoffman’s concerns on the teach-out plan or the core changes to gainful employment.

But talks appeared to continue after the meeting ended. One department official told Hoffman he’d be amenable to talking over happy hour about what changes would be needed to get her on board.