Higher Education
Stronger Federal Oversight Needed to Enforce Ban on Incentive Payments to School Recruiters Gao ID: GAO-11-10 October 7, 2010In 1992, Congress banned schools participating in federal student aid programs from paying commissions, bonuses, or other financial incentives to individuals based on their success in enrolling students or securing their financial aid. The ban applies to all postsecondary schools, including private for-profit, public, and private nonprofit schools. Congress instituted this incentive compensation ban to eliminate deceptive recruiting practices and to protect federal student aid funds from fraud and abuse. However, we recently found evidence of deceptive or fraudulent recruitment practices at certain postsecondary schools in which school officials misrepresented programs or encouraged students to falsify their financial aid applications to obtain federal student aid. Questions have been raised about whether schools are consistently acting in the best interest of students during the recruitment process, and whether the federal investment in student aid is adequately protected. The U.S. Department of Education (Education) is responsible for monitoring schools participating in federal student aid programs and enforcing compliance with the incentive compensation ban. Education has the authority to assess fines or take other actions against schools found violating the ban. In the Higher Education Opportunity Act, Congress mandated that GAO conduct a study on Education's oversight of the incentive compensation ban. In February 2010, we issued a report which provided information on incentive compensation violations substantiated by Education from January 1998 through December 2009, the nature of these violations, and the names of the institutions involved. This report provides additional information on Education's oversight of the ban during this time period. Specifically, we examined (1) how Education monitors schools for potential violations of the incentive compensation ban, and (2) the extent to which Education has used its authority to enforce the incentive compensation ban.
We found: Education has processes to monitor schools for potential violations, but its methods to detect violations and track monitoring activities are limited. 1) Education uses annual independent audits, program reviews, and other processes to monitor schools for potential violations, but primarily relies on the audits. Annual audits are conducted by independent auditors who evaluate school compliance with all federal student aid rules, including the ban on incentive compensation for recruiters. 2) Weaknesses in the audit process may limit detection of potential incentive compensation violations. For example, we found that independent auditors did not always document testing of school compliance with the ban or follow up on prior year audit findings to determine if past problems had been corrected or were still occurring. 3) Program reviews conducted by Education staff supplement the annual audits and focus on high-risk schools; however, Education's current tracking system does not identify all program reviews that examine incentive compensation. As a result, Education cannot identify the extent of incentive compensation problems, track monitoring actions over time, or assess and improve the effectiveness of its program reviews. In addition, Education cannot determine if it has appropriately targeted resources to review high-risk schools and dedicated sufficient resources to monitor schools for violations. Education has used some of its authority to enforce the incentive compensation ban, but its efforts may be hindered by its own penalty policies and practices. 1) Between 1998 and 2009, Education resolved most incentive compensation cases by requiring corrective actions or reaching settlement agreements, and did not limit, suspend, or terminate any school's access to federal student aid. 2) Education changed its enforcement policy in 2002, which resulted in an increased burden on Education to prove a violation and lessened associated financial penalties (fines and settlement payments). As a result, it became more difficult for Education to prove a school violated the incentive compensation ban and schools ultimately paid smaller penalties. 3) Education officials shared with us internal guidance that is used to determine fines and settlement payments for incentive compensation cases. Internal guidance for imposing fines and settlement payments establishes caps on total penalty amounts, although related regulations do not have such caps. Education officials have stated that the agency has not always used the guidance to determine fines and settlement payments. 4) Education's varying approaches for determining fines and settlement payments could lead to inconsistent treatment of schools without adequate justification for the differential treatment. For example, some schools were fined for incentive compensation violations, while others were not. In one case, Education withdrew an initiated school fine of over $2 million dollars, and case documentation did not reveal the reason for the fine withdrawal. In order to strengthen Education's monitoring and enforcement of the incentive compensation ban and to help protect students and the federal investment in their education, we are recommending that the Secretary of Education: 1) Coordinate with Education's Office of Inspector General to strengthen suggested procedures provided to auditors for auditing and reviewing school compliance with the ban. 2) Track the total number of program reviews it conducts, specifically looking at incentive compensation issues in order to improve Education's ability to target its resources to high-risk schools and monitor schools for violations. 3) Update the guidance used to set fines and settlement payments to establish appropriate financial penalties, and apply the guidance when determining fines and settlement payments for incentive compensation cases.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Katherine M. Iritani Team: Government Accountability Office: Education, Workforce, and Income Security Phone: (206) 287-4820GAO-11-10, Higher Education: Stronger Federal Oversight Needed to Enforce Ban on Incentive Payments to School Recruiters
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Report to Congressional Committees:
United States Government Accountability Office:
GAO:
October 2010:
Higher Education:
Stronger Federal Oversight Needed to Enforce Ban on Incentive Payments
to School Recruiters:
GAO-11-10:
Contents:
Abbreviations:
FTC: Federal Trade Commission:
HEA: Higher Education Act of 1965, as amended:
OIG: Office of Inspector General:
SEC: U.S. Securities and Exchange Commission:
[End of section]
United States Government Accountability Office:
Washington, DC 20548:
October 7, 2010:
The Honorable Tom Harkin:
Chairman:
The Honorable Michael B. Enzi:
Ranking Member:
Committee on Health, Education, Labor, and Pensions:
United States Senate:
The Honorable George Miller:
Chairman:
The Honorable John P. Kline:
Ranking Member:
Committee on Education and Labor:
House of Representatives:
In 1992, Congress banned schools participating in federal student aid
programs from paying commissions, bonuses, or other financial
incentives to individuals based on their success in enrolling students
or securing their financial aid.[Footnote 1] The ban applies to all
postsecondary schools, including private for-profit, public, and
private nonprofit schools. Congress instituted this incentive
compensation ban to eliminate deceptive recruiting practices and to
protect federal student aid funds from fraud and abuse.[Footnote 2]
However, we recently found evidence of deceptive or fraudulent
recruitment practices at certain postsecondary schools in which school
officials misrepresented programs or encouraged students to falsify
their financial aid applications to obtain federal student aid.
[Footnote 3] Questions have been raised about whether schools are
consistently acting in the best interest of students during the
recruitment process, and whether the federal investment in student aid
is adequately protected.
The U.S. Department of Education (Education) is responsible for
monitoring schools participating in federal student aid programs and
enforcing compliance with the incentive compensation ban. Education
has the authority to assess fines or take other actions against
schools found violating the ban.
In the Higher Education Opportunity Act, Congress mandated that GAO
conduct a study on Education's oversight of the incentive compensation
ban.[Footnote 4] In February 2010, we issued a report which provided
information on incentive compensation violations substantiated by
Education from January 1998 through December 2009, the nature of these
violations, and the names of the institutions involved.[Footnote 5]
This report provides additional information on Education's oversight
of the ban during this time period. Specifically, we examined (1) how
Education monitors schools for potential violations of the incentive
compensation ban, and (2) the extent to which Education has used its
authority to enforce the incentive compensation ban.
On September 9, 2010, we briefed your staff on the results of our
study. This report formally conveys the information provided during
the briefing (see appendix I for the briefing slides). We found:
* Education has processes to monitor schools for potential violations,
but its methods to detect violations and track monitoring activities
are limited.
- Education uses annual independent audits, program reviews, and other
processes to monitor schools for potential violations, but primarily
relies on the audits. Annual audits are conducted by independent
auditors who evaluate school compliance with all federal student aid
rules, including the ban on incentive compensation for recruiters.
- Weaknesses in the audit process may limit detection of potential
incentive compensation violations. For example, we found that
independent auditors did not always document testing of school
compliance with the ban or follow up on prior year audit findings to
determine if past problems had been corrected or were still occurring.
Auditors told us that Education's Office of Inspector General audit
guide requires that auditors test for incentive compensation
compliance, but does not provide specific instructions on how to do so.
- Program reviews conducted by Education staff supplement the annual
audits and focus on high-risk schools; however, Education's current
tracking system does not identify all program reviews that examine
incentive compensation. As a result, Education cannot identify the
extent of incentive compensation problems, track monitoring actions
over time, or assess and improve the effectiveness of its program
reviews. In addition, Education cannot determine if it has
appropriately targeted resources to review high-risk schools and
dedicated sufficient resources to monitor schools for violations.
* Education has used some of its authority to enforce the incentive
compensation ban, but its efforts may be hindered by its own penalty
policies and practices.
- Between 1998 and 2009, Education resolved most incentive
compensation cases by requiring corrective actions or reaching
settlement agreements, and did not limit, suspend, or terminate any
school's access to federal student aid.
- Education changed its enforcement policy in 2002, which resulted in
an increased burden on Education to prove a violation and lessened
associated financial penalties (fines and settlement payments). As a
result, it became more difficult for Education to prove a school
violated the incentive compensation ban and schools ultimately paid
smaller penalties.
- Education officials shared with us internal guidance that is used to
determine fines and settlement payments for incentive compensation
cases. Internal guidance for imposing fines and settlement payments
establishes caps on total penalty amounts, although related
regulations do not have such caps. Education officials have stated
that the agency has not always used the guidance to determine fines
and settlement payments.
- Education's varying approaches for determining fines and settlement
payments could lead to inconsistent treatment of schools without
adequate justification for the differential treatment. For example,
some schools were fined for incentive compensation violations, while
others were not. In one case, Education withdrew an initiated school
fine of over $2 million dollars, and case documentation did not reveal
the reason for the fine withdrawal.
In order to strengthen Education's monitoring and enforcement of the
incentive compensation ban and to help protect students and the
federal investment in their education, we are recommending that the
Secretary of Education:
- Coordinate with Education's Office of Inspector General to
strengthen suggested procedures provided to auditors for auditing and
reviewing school compliance with the ban.
- Track the total number of program reviews it conducts, specifically
looking at incentive compensation issues in order to improve
Education's ability to target its resources to high-risk schools and
monitor schools for violations.
- Update the guidance used to set fines and settlement payments to
establish appropriate financial penalties, and apply the guidance when
determining fines and settlement payments for incentive compensation
cases.
To address our research questions, we reviewed Education's policies,
procedures, and guidance; examined incentive compensation case
documentation from 1998 through 2009; reviewed prior GAO and OIG
higher education reports, relevant laws and regulations, and standards
for internal controls in the federal government; analyzed Education's
enforcement data; and interviewed officials from Education,
Education's Office of Inspector General, associations representing
various school sectors and students, and selected independent auditors
who conduct annual school audits. We selected audit firms that conduct
both a low and high volume of audits, as well as audits at private for-
profit, public, and private nonprofit schools. To assess the
reliability of Education's enforcement data, we (1) examined the data;
(2) compared the data to available program review, audit, and
settlement documentation; and (3) interviewed agency officials
knowledgeable about the data. We determined that the data are
sufficiently reliable for the purposes of this report. For more
detailed information on our scope and methodology, please see appendix
III.
We conducted our work from December 2009 through October 2010 in
accordance with generally accepted government auditing standards.
Those standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe
that the evidence obtained provides a reasonable basis for our
findings and conclusions based on our audit objectives.
Agency Comments and Our Evaluation:
We provided a draft copy of this report to the Department of Education
for review and comment. Education concurred with our recommendations
and said it would take several steps to implement them. The full text
of Education's comments is reprinted in appendix IV.
Education also provided background information regarding its
enforcement efforts, stating it implemented standard procedures in
2006 to help ensure its action on fines was consistent. We considered
these 2006 procedures in the course of our work; however, they did not
focus on determining fine and settlement payment amounts and, as such,
did not ensure enforcement efforts were fair and appropriate.
Education also stated that in considering fines for some cases, it
determined no action was appropriate because the violations were
minor. While there have been some incentive compensation cases with
minor violations which may not have warranted fine action, we found
evidence of other cases with significant violations which brought no
fine action. For example, Education withdrew a fine against a company
that paid over $350,000 in bonuses to recruiters for enrolling 4,750
students, as we note in our briefing slides (see appendix I).
Education also emphasized the importance of using professional
judgment to determine a fine or settlement amount. Professional
judgment can and should be one factor in determining a fine or
settlement amount, as we note in our briefing slides. However, it is
also important to have guidance on an appropriate range for fine and
settlement payments, and a process for weighing different factors to
reach a final payment amount. Such guidance would help ensure a clear
understanding of how Education determines financial penalties for
incentive compensation cases.
Lastly, Education reported it has faced many challenges in its efforts
to enforce the incentive compensation ban. In particular, the language
in an Education regulation, known as the first safe harbor, has made
it difficult to enforce the ban. We acknowledged these challenges in
our briefing slides.
We are sending copies of this report to relevant congressional
committees, the Secretary of Education, and other interested parties.
In addition, this report will be available at no charge on GAO's Web
site at [hyperlink, http://www.gao.gov].
If you or your staffs have any questions about this report, please
contact me at (206) 287-4820 or iritanik@gao.gov. Contact points for
our Offices of Congressional Relations and Public Affairs may be found
on the last page of this report. GAO staff who made key contributions
to this report are listed in appendix V.
Signed by:
Katherine M. Iritani:
Acting Director:
Education, Workforce, and Income Security Issues:
[End of section]
Appendix I: Briefing Slides:
Higher Education: Stronger Federal Oversight Needed to Enforce Ban on
Incentive Payments to School Recruiters:
Briefing to Congressional Committee Staff:
Health, Education, Labor, and Pensions:
United States Senate:
Education and Labor:
United States House of Representatives:
September 2010:
Overview:
* Introduction;
* Research Questions;
* Scope and Methodology;
* Summary of Key Findings;
* Background;
* Findings;
* Conclusions;
* Recommendations.
Introduction:
In 1992, Congress banned schools from paying commissions, bonuses, or
other financial incentives to individuals based on their success in
enrolling students or securing financial aid for them.[Footnote 6]
The ban applies to all postsecondary schools participating in federal
student aid programs, including private for-profit, public, and
private nonprofit schools.
Congress instituted this incentive compensation ban to eliminate
deceptive recruiting practices and to protect federal student aid
funds from fraud and abuse.[Footnote 7]
However, we recently found evidence of fraudulent or deceptive
recruitment practices at 15 postsecondary schools we visited.[Footnote
8] For example:
* Some school officials encouraged prospective students to falsify
their financial aid applications to obtain federal student aid.
* Other school officials misled potential students about the cost of
the programs and exaggerated the salaries they could earn after
graduating.
Questions have arisen about whether schools are consistently acting in
the best interest of students during the recruitment process, and
whether the federal investment in student aid is adequately protected.
The U.S. Department of Education (Education) is responsible for
monitoring schools and enforcing compliance with the incentive
compensation ban.
* Education has the authority to assess fines or take several other
actions against schools found violating the ban.
In the Higher Education Opportunity Act, Congress mandated that GAO
study Education's oversight of the incentive compensation
ban.[Footnote 9]
* In February 2010, we issued a report on incentive compensation
violations substantiated by Education from January 1998 through
December 2009, the nature of these violations, and the names of the
institutions involved, as required in the mandate.[Footnote 10]
This review provides additional information on Education's oversight
of the ban during the same time period.
Research Questions:
1. How does Education monitor schools for potential violations of the
incentive compensation ban?
2. To what extent does Education use its authority to enforce the
incentive compensation ban?
Scope and Methodology:
To answer these questions, we:
* reviewed Education's policies, procedures, and guidance;
* reviewed incentive compensation case documentation from 1998 through
2009;[Footnote 11]
* interviewed officials from Education, Education's Office of
Inspector General (OIG), independent auditors who conducted annual
school audits, and associations representing various school sectors
and students;
* reviewed prior GAO and OIG higher education reports, relevant
federal laws and regulations, and standards for internal controls in
the federal government; and;
* analyzed Education's enforcement data. We determined the data
reviewed to be sufficiently reliable for the purposes of this report.
We conducted our work from December 2009 through October 2010 in
accordance with generally accepted government auditing standards.
Summary of Key Findings:
1. Education has processes to monitor schools for potential
violations, but its methods to detect violations and track monitoring
activities are limited.
2. Education has used some of its authority to enforce the incentive
compensation ban, but its efforts may be hindered by its own penalty
policies and practices.
Background:
The Incentive Compensation Ban and Regulations:
The ban prohibits schools that receive federal student aid funds from
providing "...any commission, bonus, or other incentive payment based
directly or indirectly on success in securing enrollments or financial
aid to any persons or entities engaged in any student recruiting or
admissions activities or in making decisions regarding the awards of
student financial assistance...."[Footnote 12]
Several times since the ban's enactment in 1992, Education has issued
regulations regarding incentive compensation. For example,
* In 2002, Education published regulations”commonly referred to as
safe harbors”that allow for 12 compensation arrangements schools can
use without violating the ban.[Footnote 13] (For more information, see
appendix II.)
* In June 2010, Education proposed new regulations, which would
eliminate the safe harbors.[Footnote 14] Education expects to publish
the final rules by November 1, 2010.
Department of Education's Oversight Authority:
Under its oversight authority, Education monitors and enforces school
compliance with federal student aid programs, including the statutory
ban against incentive compensation.
* Education and Education's OIG have policies, procedures, and guides
directed to Education staff and external parties, such as independent
auditors, responsible for monitoring school compliance with laws,
regulations, and program requirements.
As part of its enforcement authority, Education can take a variety of
actions to resolve incentive compensation cases identified through its
monitoring activities.
Types of Enforcement Actions:
Pursuant to its oversight authority, Education may, among other
actions:
* require that a school take corrective action;
* reach a settlement agreement with a school;[Footnote 15]
* identify liabilities requiring repayment of improperly awarded
federal student aid funds;[Footnote 16]
* assess fines;[Footnote 17] or:
* limit, suspend, or terminate a school's participation in federal
student aid programs.[Footnote 17]
Finding 1: Monitoring for Incentive Compensation Violations:
Education Has Processes To Monitor Schools For Potential Violations,
but Its Methods To Detect Violations and Track Monitoring Activities
Are Limited:
Education uses annual independent compliance audits, program reviews,
and other processes to monitor schools for potential violations, but
primarily relies on the audits to identify these violations.[Footnote
18]
Weaknesses in the auditors' implementation of the compliance audit
process may limit detection of potential incentive compensation
violations.
Program reviews supplement the annual compliance audits and focus on
high-risk schools; however, Education's current tracking system does
not identify all program reviews that examine incentive compensation.
Monitoring: Processes Used:
Figure: Education Uses Several Monitoring Processes to Identify
Violations:
[Refer to PDF for image: illustrated table]
Activity: Annual Independent Compliance Audits;
Conducted by: Independent Auditors;
Focus of monitoring: Evaluate compliance with all federal student aid
program requirements and review any violations from prior years.
[Footnote 19]
Activity: Program Reviews;
Conducted by: Education Staff;
Focus of monitoring: Evaluate compliance with all requirements (a
general review) or specific federal student aid program requirements
(a focused review).[Footnote 19]
Activity: Office of Inspector General Audits;
Conducted by: Office of Inspector General (01G) staff;
Focus of monitoring: Evaluate compliance with specific federal student
aid program requirements.[Footnote 19]
Activity: Qui tam lawsuits (under False Claims Act);[Footnote 20]
Conducted by: Private Citizens (i.e., school employees);
Focus of monitoring: Legal processes used to determine if a potential
incentive compensation compliance problem has occurred.
Source: GAO analysis of regulations and Education documentation.
[End of figure]
Education Mainly Relies on Annual Independent Compliance Audits to
Identify Violations:
Independent compliance audits occur on an annual basis and are
required of all schools that receive federal student aid.[Footnote 21]
* As part of the audit, a review of the school's compliance with the
incentive compensation ban is required.
In contrast, other monitoring processes occur less frequently and
target certain schools.
* Education officials told us program reviews are conducted
periodically and only occur at high-risk schools.
* OIG audits are also done periodically and target schools based on
complaints and other information.
* Qui tam lawsuits have no set frequency and occur when private
citizens sue schools on behalf of the government for incentive
compensation violations.
Monitoring: Weaknesses in Audits:
Independent Auditors Have Not Always Adequately Tested for Incentive
Compensation Violations:
Annual independent compliance audits did not detect incentive
compensation issues at 32 of the 53 schools that were identified”
through program reviews or other infrequent monitoring processes”to
have problems between 1998 and 2009.[Footnote 22]
* Compliance audits should have identified problems at half of these
32 schools if auditors followed a requirement in the audit guide to
review school contracts regarding student recruitment.[Footnote 23]
Officials from Education's OIG, as well as independent auditors and
Education personnel, told us that the quality of annual independent
audits varies from auditor to auditor.
Education's OIG reviews the quality of select independent compliance
audits each year and has identified deficiencies in the audits.
[Footnote 24]
Our analysis of the OIG reviews found that independent auditors did
not always document whether they had examined compensation practices
at schools.
* For example, 11 percent of the independent compliance audits
reviewed between 2007 and 2009 did not document compliance testing for
incentive compensation.
In addition, independent auditors did not always show whether they had
followed up on findings from prior audits to determine if past
problems had been corrected or were still occurring.
* For example, 12 percent of the compliance audits also failed to
adequately identify and obtain required information on any prior
problems at a school, which could include prior incentive compensation
violations.[Footnote 25]
Education's Suggested Procedures for Conducting Audits are Limited:
Procedures in Education's OIG audit guide for independent auditors
require that auditors test for incentive compensation compliance and
suggest a review of payroll and other disbursement records, but
auditors told us the procedures do not specify how to conduct this
test.
Education's lack of specific suggested procedures contrasts with best
practices identified by GAO and others for providing information to
independent auditors. For example, these best practices if applied to
Education's procedures would suggest:
* providing specific requirements and examples to assist independent
auditors in their work,[Footnote 26] and;
* developing detailed procedures and techniques to carry out agency
objectives and communicating this information to independent auditors
who help ensure school compliance.[Footnote 27]
Independent auditors told us the suggested procedures do not specify
how to evaluate compliance with the incentive compensation ban and
have not been updated since 2000. They said additional information
would be helpful, such as:
* Education-recommended minimum standards for how to evaluate
compliance, which would help ensure that the auditor fully understands
a school's compensation plan and selects a random and appropriate
sample of payroll records to review;
* additional information clarifying which school employees are covered
by the ban;
* examples of "red flags" that suggest an auditor should investigate
further, such as bonuses being paid at the end of a recruiting cycle;
and;
* examples of additional school records an auditor should review to
ensure compliance with the incentive compensation ban.
Independent auditors also said it would be helpful to have the guide
updated when policy and regulatory changes occur.
Education has provided more detailed instructions along these lines
for other compliance issues, but independent auditors told us
Education has not done so for incentive compensation issues.
Monitoring: Limitations in Tracking:
Education's Program Reviews Supplement Audits, but the Agency Does Not
Know How Many Are Done for Incentive Compensation Issues:
In addition to the annual compliance audits, Education conducts
program reviews of select schools.
While Education's data system captures the total number of program
reviews conducted, Education officials told us it does not identify
the areas, such as incentive compensation, examined in the reviews.
[Footnote 28]
Because program reviews can cover a range of topics and do not always
focus on incentive compensation issues, Education is not able to
identify the number of program reviews that have examined schools for
potential incentive compensation violations.
Education's inability to identify all program reviews that have examined
incentive compensation issues presents challenges to ensuring
efficient and effective monitoring. Specifically:
* Without such data, Education cannot identify the extent of incentive
compensation problems, track monitoring actions over time, or assess
and improve the effectiveness of the program reviews.
* In addition, Education cannot determine if it has appropriately
targeted resources to review high-risk schools and dedicated
sufficient resources to monitoring schools for violations.
According to best practices established by GAO, federal agencies
should ensure that they capture information needed to fulfill their
responsibilities.[Footnote 29]
Monitoring: Information from External Agencies:
Figure: Education Staff Also Gather Information From Other Federal and
State Agencies to Monitor Schools:[Footnote 30]
[Refer to PDF for image: illustrated table]
External information gathering: Securities and Exchange Commission
(SEC) filings;
How obtained: Education can access SEC filings;
Monitored populations: Only publicly traded private for-profit schools;
Focus of monitoring: Education gathers SEC information about ongoing
lawsuits and a school's financial health as part of its own internal
monitoring process.
External information gathering: Federal Trade Commission (FTC)
complaints;
How obtained: Education recently granted access to FTC database;
Monitored populations: All schools;
Focus of monitoring: Education gathers information from the FTC
database regarding student complaints as part of its own internal
monitoring process.
External information gathering: State Agencies;
How obtained: Education and state agencies share information;
Monitored populations: All schools;
Focus of monitoring: Education gathers information obtained by state
agencies as part of its own internal monitoring process.
Source: GAO analysis of regulations and Education interviews.
Coordination with the SEC, FTC, and States Has Not Enhanced
Education's Ability to Identify Incentive Compensation Violations:
While Education personnel look at information gathered from the SEC,
FTC, and states during the program review process, Education officials
told us the information to date has not assisted with specific incentive
compensation cases. For example,
* Complaints in the FTC database have not included new information
about potential incentive compensation violations, according to
officials.
Education officials also noted that the external information has
sometimes duplicated information Education already has. For example,
* They told us Education personnel are usually aware of incentive
compensation-related qui tam lawsuits against schools before
collecting this information from the SEC.
Finding 2: Enforcement of the Incentive Compensation Ban:
Education Has Used Some Of Its Authority To Enforce The Incentive
Compensation Ban, but Its Efforts May Be Hindered By Its Own Penalty
Policies and Practices:
Between 1998 and 2009, Education resolved most incentive compensation
cases by requiring corrective actions or reaching settlement
agreements, and did not limit, suspend, or terminate any school's
access to federal student aid.
Education changed its enforcement policy in 2002, which resulted in an
increased burden on Education to prove a violation and lessened
financial penalties.
Education's internal guidance for imposing fines and settlement
payments establishes caps on total financial penalties whereas
Education's regulations do not.
Education's varying fine and settlement practices could lead to
inconsistent treatment of schools.
Enforcement: Resolution of Cases:
Figure: Between 1998 and 2009, Education Resolved Most Incentive
Compensation Cases with Corrective Action or Settlement Agreements:
[Refer to PDF for image: illustration]
Incentive Compensation Cases[Footnote 31] (1998 to 2009):
Settlement Agreements[Footnote 32]: 22 schools;
Substantiated Violations: 32 schools;
Corrective Action: 25 schools;
Also Fined: 2 schools;
Liability: 1 school;
No Further Action: 6 schools.
[End of figure]
Most of the schools with incentive compensation cases were required to
take corrective action or reached settlement agreements with Education.
At three schools, Education imposed fines or found the school liable
for misspent federal student aid funds.[Footnote 33]
Figure: For Most of the 32 Schools with Substantiated Violations,
Education Required Corrective Action:
[Refer to PDF for image: illustration]
Settlement Agreements: 32 schools;
Corrective Action: 25 schools;
Also Fined: 2 schools;
Liability: 1 school;
No Further Action: 6 schools.
[End of figure]
At 25 of the 32 schools with substantiated violations, Education
required schools to take corrective action.
* Corrective action included ending bonus payments to recruiters for
reaching enrollment targets, and ending referral fees to students.
* 2 of these 25 schools were also required to pay a fine as a penalty,
with fines for both totaling $64,000.
At 1 of the 32 schools, Education identified a liability of over $187
million in misspent student aid funds.[Footnote 34]
At 6 of the remaining schools with substantiated violations, no
further enforcement action was imposed, typically because the school
had closed. [Footnote 35]
Figure: Education Reached Settlement Agreements with 22 Additional
Schools to Resolve Incentive Compensation Cases:
[Refer to PDF for image: illustration]
Settlement Agreements: 22 schools paid $59,114,250 in settlement
payments:
1 school, 2 settlements: $48,500,000; $9,800,000;
16 schools: $490,000;
5 schools[Footnote 36]: $230,000; $39,000; $27,500; $27,500.
[End of figure]
Settlement agreements included over $59 million in payments to
Education.
16 of the 22 settlement agreements were related to the Institute for
Professional Development's recruiting contract with schools.[Footnote
37]
The 16 settlement payments ranged from $5,000 to $115,000.
Two of the settlements were with the University of Phoenix.[Footnote
37]
* The first settlement resolved findings in a program review and
included a settlement payment of $9.8 million;
* The second settlement resolved a qui tam lawsuit under the False
Claims Act and included a settlement payment of $48.5 million to
Education.[Footnote 38]
Education Has Not used its Authority to Limit, Suspend, or Terminate
any School's Federal Student Aid Access Because of Incentive
Compensation Violations:
In addition to imposing fines, liabilities, or reaching settlements
with a school, Education has the authority to sanction a school for
violating federal student aid statutory and regulatory requirements by
limiting, suspending, or terminating that school from participating in
federal student aid programs.[Footnote 39]
According to Education officials, other enforcement actions that the
agency can take, such as changing a school's participation status to
"provisional," are more effective than limiting or suspending a
school's participation in the federal student aid program.[Footnote 40]
* To date, Education has not limited or suspended a school or used
these other enforcement actions in incentive compensation cases.
Education officials also noted that they have not terminated a school
for incentive compensation issues. They were primarily concerned that
schools would challenge terminations and Education would need to
invest resources in litigating cases without necessarily prevailing in
those terminations. The officials further said that they have never
attempted to terminate a school for incentive compensation issues.
Enforcement: Policy Changes:
Education Changed its Enforcement Policy in 2002, which Increased the
Burden to Prove a Violation and Lessened Financial Penalties:
In October 2002, Education issued an internal policy memo-”called the
Hansen memo-”which changed the Department's enforcement approach for
incentive compensation violations from identifying liabilities to
assessing fines.
* Fines are often significantly smaller dollar amounts than
liabilities, which require a school to pay back federal student aid
funds related to a violation.
* In addition, when assessing a fine, the burden of proving a
violation is on Education. In contrast, when Education identifies a
liability, the burden is on the school to prove its compliance.
[Footnote 41]
Education issued the safe harbor regulations almost concurrently with
the Hansen memo. The safe harbor regulations identified 12
compensation arrangements that did not fall within the scope of the
ban.
According to Education officials, the safe harbor regulations made it
more difficult to prove a school paid incentive compensation.[Footnote
42]
* Education officials said the first safe harbor-”which allows for two
annual adjustments to compensation, as long as the adjustments are not
solely based on enrollments-”is particularly problematic.
Specifically, officials reported challenges in proving that changes to
employee pay were solely based on enrollments, as required to
substantiate a violation.
* Education officials told us the term "solely" is unclear, making it
difficult to successfully pursue an incentive compensation case.
* Furthermore, Education reported expending significant resources in
time and effort evaluating the legitimacy of compensation plans.
Enforcement: Limitations in Guidance:
Education's Guidance Establishes Caps on Total Penalty Amounts
Although Regulations Do Not Have Such Caps:
Education officials shared with us internal guidance that the agency
has used to determine fines and settlement payments for incentive
compensation cases.[Footnote 43]
However, this guidance has a cap or limit on the total amount of
financial penalties, whereas Education's regulations do not. For
example:
* The internal guidance sets a maximum financial penalty of $27,500
when a school violates the incentive compensation ban.
* In contrast, Education officials note that regulations do not impose
a cap on the total fine amount. For example, schools can be fined
$27,500 each time a recruiter is improperly paid a bonus.[Footnote 44]
Consequently, a school's total fine can be much higher than $27,500.
Education officials have stated that the agency does not always use
this guidance when determining fines and settlement payments. For
example:
* Education has imposed total fine/settlement payments of up to
$9,800,000 and the median amount has been $30,000.[Footnote 45]
Enforcement: Inconsistent Implementation:
Education's Varying Enforcement Approaches Could Lead to Inconsistent
Treatment of Schools:
Education treated schools differently in determining whether or not to
impose fines in addition to corrective action for incentive
compensation violations.
Some schools had fines imposed for incentive compensation violations,
while others only had corrective action.
According to Education officials and procedures, fine action is
determined on a case by case basis given the unique circumstances of
that case.
However, the reasoning behind Education's decisions to impose or not
impose fines is not always clear. For example:
* Education withdrew an initiated fine of over $2 million for High-
Tech Holdings (the parent company of High-Tech Institute and The
Bryman School of Arizona) for violating the incentive compensation ban
and resolved the case through corrective action alone.[Footnote 46]
* Case documentation that we received did not explain the reason for
the fine withdrawal.[Footnote 47]
Education has used different definitions of an incident of incentive
compensation in determining fine and settlement payments.
* Education has determined an incident of incentive compensation to be
either one student improperly recruited, one recruiter who received an
improper payment, or one incentive payment made.
According to Education officials, professional judgment based on the
information available and unique characteristics of each case was used
to define an incident of incentive compensation.
* However, Education does not have guidance on how an incident of
incentive compensation should be defined. Furthermore, case
documentation did not provide an explanation for how Education chose
the definition of an incident of incentive compensation.
* Lack of guidance or documentation supporting how incident
definitions are selected could lead to inconsistencies in how
Education resolves incentive compensation cases and determines fines
and settlement payments.
Changing the definition of an incident could influence the total fine
or settlement payment. For example, based on information provided in
case documentation, if an alternative definition of an incident of
incentive compensation were used, the total fine amount could be
substantially different, as illustrated in Table 1.
Table 1: Total Fines or Settlement Payments Vary Depending on
Definition of Incentive Compensation Incident:
School: Concordia College;
Actual Fine/Settlement Payment (based on definition of an incident
used to determine fine or settlement payment): $10,000 ($294 for each
of the 34 incentive payments made);
Alternative Fine/Settlement Payment (based on alternative definitions
of an incident that could be used to determine a fine or settlement
payment): $1,176 ($294 for each of the 4 recruiters receiving improper
payments).
School: University of LaVerne;
Actual Fine/Settlement Payment (based on definition of an incident
used to determine fine or settlement payment): $27,500 ($6,875 for
each of the 4 recruiters receiving improper payments);
Alternative Fine/Settlement Payment (based on alternative definitions
of an incident that could be used to determine a fine or settlement
payment): $2,942,500 ($6,875 for each of the 428 students improperly
recruited).
1. The alternative fine/settlement payment amounts were calculated
using information provided by Education about incentive compensation
issues at these schools.
2. This table assumes the payment per incident would remain the same
with the alternative definition of an incident of incentive
compensation.
3.According to Education officials, the characteristics of an
incentive compensation case may impact how the fine or settlement
payment is calculated. Education could determine the total fine or
settlement payment first and calculate the payment amount per incident
afterwards. Alternatively, Education could determine the payment per
incident first and then calculate the total fine or settlement payment
amount based on the number of incidents of incentive compensation.
Source: GAO analysis of Education documents.
[End of table]
According to Education officials, the Department identifies and uses
aggravating and mitigating factors to determine a school's fine or
settlement payment.
* A mitigating factor, such as a school self-reporting incentive
compensation payments, would reduce the financial penalty.
* An aggravating factor, such as a school misleading Education about
having ended an incentive compensation practice, would increase the
financial penalty.
However, we found that mitigating factors did not always lead to a
lower payment for each incident of incentive compensation and
aggravating factors did not always lead to a higher payment for each
incident of incentive compensation (See table 2 on slide 34 for more
details).
Education determined that the University of Phoenix case had an
aggravating factor and the University of LaVerne case had a mitigating
factor. Despite these determinations, Education reached a settlement
with the University of LaVerne that included a payment per incident
more than twice the amount the University of Phoenix paid.
Table 2: Comparison of Two Settlements with Aggravating and Mitigating
Factors:
University of Phoenix:
Incentive Compensation Case: A program review found the school's
compensation of recruiters did not comply with the ban;
Aggravating or Mitigating Factors: Education determined that the
school was fully aware of the incentive compensation ban; yet, it
devised an illegal compensation practice and maintained two sets of
books in the event of being audited;
Incentive Compensation Paid: More than $29 million;
Settlement Payment[A]: $3,302 per incident, $9.8 million total
(incident = the number of illegal payments made).
University of LaVerne:
Incentive Compensation Case: An OIG audit found that the school had a
bonus pool based on revenue gained from enrollments exceeding the base
enrollment quota;
Aggravating or Mitigating Factors: Education determined that the
school had no intent to deceive the Department;
Incentive Compensation Paid: $70,408;
Settlement Payment[A]: $6,875 per incident, $27,500 total (incident =
the number of recruiters paid).
Source: GAO analysis of settlement information provided by Education.
[A] We recognize that a variety of factors are used to determine the
payment amount in settlement negotiations and that these factors may
have contributed to different per incident payment amounts for these
schools.
[End of table]
Conclusions:
The ban on incentive compensation was put into place to help protect
students and federal student aid funds.
Recent focus on aggressive and inappropriate recruiting practices at
some schools has renewed concerns about the adequacy of federal
oversight of recruiter compensation practices.
Students and the federal investment in their education are put at risk
without strong monitoring processes to detect potential incentive
compensation violations at schools.
Furthermore, limited information on Education's total effort to
monitor school compliance with the incentive compensation ban may
hinder its ability to effectively and efficiently target its
monitoring resources.
In addition, Education's disparate treatment of schools raises
questions about whether its enforcement of the ban is fair and
appropriate when penalizing schools and effective as a deterrent to
future violations.
Strengthening Education's monitoring and enforcement of the incentive
compensation ban can:
* help identify those schools that are inappropriately
compensating recruiters and level the playing field for schools that
comply with the ban,
* help protect students who need accurate information during the
recruitment process, and,
* safeguard federal student aid funds from fraud and abuse.
Recommendations for Executive Action:
In order to help ensure that potential violations of the incentive
compensation ban are identified, the Secretary of Education should
coordinate with Education's OIG to strengthen the suggested procedures
provided to auditors for auditing and reviewing school compliance with
the ban.
* For example, Education could provide suggested step-by-step
procedures and specific examples of how to test compliance with the
incentive compensation ban.
- This information could include minimum standards for evaluating
compliance, examples of red flags that would trigger further review,
and references to additional school records that may contain
information related to recruiter compensation.
In order to help Education improve its monitoring of school compliance
with the incentive compensation ban, the Secretary of Education should
track the total number of program reviews it conducts specifically
looking at incentive compensation issues.
* Education could do this by adding a component to its existing
data system”-as it has done in the past as monitoring needs changed”-
that will capture the reason for the initiated review.
In order to help ensure Education's enforcement of the incentive
compensation ban is fair and consistent when determining fines and
settlement payments, the Secretary of Education should:
* update the guidance used to set fines and settlement payments to
establish appropriate penalties, and;
* apply the guidance when determining fines and settlement payments
for incentive compensation cases.
The guidance could establish an appropriate range for financial
penalties associated with incentive compensation cases. In addition,
it could lay out a process for weighing different factors that could
affect the final payment amount in an incentive compensation case.
Education staff could then use their professional judgment to weigh
these factors and determine the exact fine or settlement amount within
the overall range outlined in the guidance. This would help ensure a
clear understanding of any differences in the fines and settlement
payments associated with incentive compensation cases.
[End of briefing slides]
Appendix II: Department of Education Safe Harbor Regulations:
The Safe Harbor regulations, found at 34 C.F.R. § 668.14(b)(22)(ii)(A)
through (L) provide that the activities and arrangements schools may
carry out without violating the incentive compensation ban include,
but are not limited to, the following activities and arrangements:
(1) the payment of fixed compensation, such as a fixed annual salary
or a fixed hourly wage, as long as that compensation is not adjusted
up or down more than twice during any 12-month period, and any
adjustment is not based solely on the number of students recruited,
admitted, enrolled, or awarded financial aid. For this purpose, an
increase in fixed compensation resulting from a cost of living
increase that is paid to all or substantially all full-time employees
is not considered an adjustment;
(2) compensation to recruiters based upon their recruitment of
students who enroll only in programs that are not eligible for Title
IV, HEA program funds;
(3) compensation to recruiters who arrange contracts between the
institution and an employer under which the employer's employees
enroll in the institution, and the employer pays, directly or by
reimbursement, 50 percent or more of the tuition and fees charged to
its employees; provided that the compensation is not based upon the
number of employees who enroll in the institution, or the revenue they
generate, and the recruiters have no contact with the employees;
(4) compensation paid as part of a profit-sharing or bonus plan, as
long as those payments are substantially the same amount or the same
percentage of salary or wages, and made to all or substantially all of
the institution's full-time professional and administrative staff.
Such payments can be limited to all, or substantially all of the full-
time employees at one or more organizational level at the institution,
except that an organizational level may not consist predominantly of
recruiters, admissions staff, or financial aid staff;
(5) compensation that is based upon students successfully completing
their educational programs, or 1 academic year of their educational
programs, whichever is shorter. For this purpose, successful
completion of an academic year means that the student has earned at
least 24 semester or trimester credit hours or 36 quarter credit
hours, or has successfully completed at least 900 clock hours of
instruction at the institution;
(6) compensation paid to employees who perform clerical "pre-
enrollment" activities, such as answering telephone calls, referring
inquiries, or distributing institutional materials;
(7) compensation to managerial or supervisory employees who do not
directly manage or supervise employees who are directly involved in
recruiting or admissions activities, or the awarding of Title IV, HEA
program funds;
(8) the awarding of token gifts to the institution's students or
alumni, provided that the gifts are not in the form of money, no more
than one gift is provided annually to an individual, and the cost of
the gift is not more than $100;
(9) profit distributions are proportionately based upon an
individual's ownership interest in the institution;
(10) compensation paid for Internet-based recruitment and admission
activities that provide information about the institution to
prospective students, refer prospective students to the institution,
or permit prospective students to apply for admission online;
(11) payments to third parties, including tuition sharing
arrangements, that deliver various services to the institution,
provided that none of the services involve recruiting or admission
activities, or the awarding of Title IV, HEA program funds; and:
(12) payments to third parties, including tuition sharing
arrangements, that deliver various services to the institution, even
if one of the services involves recruiting or admission activities or
the awarding of Title IV, HEA program funds, provided that the
individuals performing the recruitment or admission activities, or the
awarding of Title IV, HEA program funds, are not compensated in a
manner that would be impermissible under paragraph (b)(22) of this
section. [Section (b)(22) prohibits the payment of any commission,
bonus, or other incentive payment based directly or indirectly upon
success in securing enrollments or financial aid to any person or
entity engaged in any student recruiting or admission activities or in
making decisions regarding the awarding of Title IV, HEA program
funds].
[End of section]
Appendix III: Objectives, Scope, and Methodology:
Objectives:
This appendix discusses in detail our methodology for addressing the
following research questions: (1) How does Education monitor schools
for potential violations of the incentive compensation ban? and (2) To
what extent does Education use its authority to enforce compliance
with the incentive compensation ban?
To address these research questions we reviewed Education's policies,
procedures, and guidance; examined incentive compensation case
documentation from 1998 through 2009; interviewed officials from
Education, Education's Office of Inspector General (OIG), independent
auditors who conduct annual school audits, and associations
representing various school sectors and students; reviewed prior GAO
and OIG higher education reports, relevant laws and regulations, and
standards for internal controls in the federal government; and
analyzed Education's enforcement data.
We conducted our work from December 2009 through October 2010 in
accordance with generally accepted government auditing standards.
Those standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe
that the evidence obtained provides a reasonable basis for our
findings and recommendations based on our audit objectives.
Analysis of Education Policies, Procedures, and Guides:
To determine how Education monitors and enforces school compliance
with the incentive compensation ban, we reviewed Education's policies
and procedures for oversight of the incentive compensation ban. In
addition, we reviewed Education's OIG audit guide provided to
independent auditors to help monitor schools for compliance with
federal student aid eligibility requirements, including the incentive
compensation ban. We also reviewed the Office of Management and Budget
A-133 Circular for single audits, which provides information for
audits of public and nonprofit schools.
Department of Education, Auditor, and Association Interviews:
To examine Education's monitoring and enforcement of school compliance
with the incentive compensation ban we interviewed officials from
Education, independent auditors who conduct annual school audits, and
personnel from associations representing various school sectors and
students. At Education, we interviewed officials at the office of
Federal Student Aid, field offices, the General Counsel's Office, the
Office of Inspector General, and the office of Postsecondary
Education. We also interviewed auditors from the following audit
firms: Barry Glasser and Company; Deloitte & Touche; Deemer Dana &
Froehle LLP; Kessler Orlean Silver & Company PC; Johnston & Hayden,
LLC; Knutte & Associates; KPMG; David A. Levy, CPA PC; Moss Adams;
Parente Beard; Plante & Moran; PriceWaterHouse Coopers; Rosenberg
Jurash & Associates; Salmon Sims Thomas & Associates; and West &
Company. The audit firms selected represent those conducting both low-
and high-volume audits, as well as audits at private for-profit,
public, and private nonprofit schools. In addition, we spoke with
representatives from the American Institute of Certified Public
Accountants, the national association representing accountants.
We also interviewed officials from a broad range of higher education
associations and interest groups including the National Association of
Independent Colleges and Universities, the American Association of
Community Colleges, the Career College Association, the National
Association of College Admissions Counselors, and the American
Association of Collegiate Registrars and Admissions Officers.
Analysis of Education Data and Case Documentation:
To determine the extent to which Education has used its authority to
enforce compliance with the incentive compensation ban, we obtained
information from Education's PEPs database on incentive compensation
findings from January 1998 through December 2009.[Footnote 48] This
database includes information on qui tam suits filed by citizens under
the False Claims Act that involved the Department of Education. We
supplemented this information with an analysis of relevant incentive
compensation case documentation, relevant laws and regulations, and
enforcement actions taken against schools. We assessed the reliability
of this data by: (1) examining the data; (2) comparing the data to
available case documentation such as final determination letters or
settlement agreements; and (3) interviewing Education officials. We
determined the data reviewed to be sufficiently reliable for the
purposes of this report.
As part of our analysis of Education's monitoring efforts, we also
obtained and analyzed Education's OIG quality reviews of select audits
from fiscal years 2007 through 2009. The reviewed audits are not
randomly selected and, therefore, the results cannot be generalized to
the entire population of audits. Nevertheless, the audits do shed
light on deficiencies in the annual audits.
[End of section]
Appendix IV: Comments from the Department of Education:
Federal Student Aid:
Chief Operating Officer:
830 First Street, NE:
Washington, D.C. 20202:
1-800-4-FED-AID:
[hyperlink, http://www.studentaid.ed.gov]
September 24, 2010:
Ms. Katherine M. Iritani:
Acting Director:
Education, Workforce, and Income Security Issues:
United States Government Accountability Office:
Washington, DC 20548:
Dear Ms. Iritani:
Thank you for providing the U.S. Department of Education (the
Department) with a draft copy of the U.S. Government Accountability
Office's (GAO's) report entitled, "Higher Education: Stronger Federal
Oversight Needed to Enforce Ban on Incentive Payments to School
Recruiters" (GAO-11-10).
The Higher Education Opportunity Act (HEOA) required that GAO conduct
a study of the Department's enforcement of the incentive compensation
provisions at § 487(a)(20) of the Higher Education Act (HEA). GAO must
include in the report an analysis of the nature, extent, and
effectiveness of the Department's enforcement activities; the number
of institutions for which the Department initiated investigations
since 1998; where violations were substantiated, the names of the
institutions, the nature of the violations, and the penalty, if any,
imposed; an analysis of the impact of the "safe harbor" regulations at
34 C.F.R. § 668.14(b)(22)(ii)(A) through (L) on the number and nature
of cases examined for violations by the Department; information on the
extent to which the Department has considered State efforts to examine
unethical or unlawful student recruitment or admissions practices,
including practices that violate the statutory provisions; and
information on the extent to which the Department reviews publicly
available documents, such as filings to the Securities and Exchange
Commission, to monitor compliance. As a result of its study, GAO made
three recommendations to the Department. Below arc the Department's
responses to each recommendation, as well as comments regarding other
statements within the report that are otherwise related to each
recommendation.
Recommendation 1: In order to help ensure that potential violations of
the incentive compensation ban are identified, the Secretary of
Education should coordinate with Education's OIG to strengthen the
suggested procedures provided to auditors for auditing references to
additional school records that may contain information related to
recruiter compensation.
Response: We agree with this recommendation. Federal Student Aid will
provide Education's Office of Inspector General (OIG) with suggestions
to strengthen the procedures provided to auditors for auditing and
reviewing school compliance with the incentive compensation ban.
Recommendation 2: In order to help Education improve its monitoring of
school compliance with the incentive compensation ban, the Secretary
of Education should track the total number of program reviews it
conducts specifically looking at incentive compensation issues.
Education could do this by adding a component to its existing data
system”as it has done in the past as monitoring needs change”that will
capture the reason for the initiated review.
Response: We agree with this recommendation. Program Compliance of
Federal Student Aid requested that a code corresponding to incentive
compensation be added in its data system to track the type/scope of
program review conducted. This should enable the Department to more
effectively track program reviews that were initiated as a result of
incentive compensation concerns.
Recommendation 3: In order to help ensure that Education's enforcement
of the incentive compensation ban is fair and consistent when
deterMining fines and settlement payments, the Secretary of Education
should: update the guidance used to set fines and settlement payments
to establish appropriate penalties, and aPply the guidance when
determining fines and settlement payments for incentive compensation
cases.
Response: We agree with this recommendation. The Department issued a
notice of proposed rulemaking that addresses the issue of incentive
compensation, and it anticipates publishing a final rule in the coming
weeks. The Department agrees that after the final rule is published,
the Department should update its compliance guidance with respect to
incentive compensation. Additional background is provided in Appendix
A.
We greatly appreciate your examination of this important issue.
Sincerely,
Signed by:
Fred Anderson:
Chief Risk Officer, for:
William J. Taggart:
Chief Operating Officer:
Enclosure:
[End of letter]
Enclosure: Appendix A:
As the Department noted to GAO during data collection for this
engagement, it implemented standard procedures in 2006 regarding
program reviews and audits in an effort to, among other things, ensure
that the possibility of a fine is consistently considered going
forward. In addition, the Department explained that, in some cases
when it considered whether to assess a fine, it determined that no
action was appropriate because the violations were de minimus.
The Department also noted that it uses the information available about
a school's incentive compensation practices, coupled with professional
judgment, to determine a fine/settlement amount. Accordingly, the
Department has defined an "incident of incentive compensation" as one
student improperly recruited, one recruiter who received an improper
payment, or one incentive payment made, consistent with the
specific/unique facts of each case. The Charts at pages 32 and 34 of
the draft report illustrate why the Department uses professional
judgment to define an "incident" for purposes of determining an
appropriate fine amount.
The Department has faced many challenges in its enforcement efforts.
Among those challenges is the language in the first safe harbor,
spawned by the legislative history, which states that compensation
cannot solely be a function of the number of students recruited,
admitted, enrolled, or awarded financial aid. 34 C.F.R. §
668.14(b)(22)(ii)(A). Challengers contend that this language means
that any enforcement action the Department takes against a school for
payments to a recruiter of students that arc based in part-even 99%-on
the number of students a recruiter enrolls is contrary to the first
safe harbor. Please note that pursuant to negotiated rulemaking, the
Department has proposed changes to the regulations implementing §
487(a)(20) of the HEA that would eliminate all of the safe harbors.
The publication of the final regulations, expected to occur by
November 1, 2010, affords the Department an excellent opportunity to
revise its guidance in this area.
[End of section]
Appendix V: GAO Contact and Staff Acknowledgments:
GAO Contact:
Katherine M. Iritani at (206) 287-4820 or iritanik@gao.gov:
Staff Acknowledgments:
In addition to the contact named above, the following staff members
made important contributions to this report: Melissa Emrey-Arras,
Assistant Director; Claudine Pauselli, Analyst-in-Charge; Colleen
Moffatt; and Ann Rivlin. Also, Jean McSween provided guidance on the
study's data analysis; Jessica Botsford and Sheila McCoy provided
legal advice; James Bennett and Mimi Nguyen assisted with report
graphics; Susan Aschoff provided writing assistance; and Andrew Nelson
and Amy Anderson verified our findings.
[End of section]
Footnotes:
[1] Generally, the incentive compensation ban applies to schools
participating in federal student aid programs authorized under Title
IV of the Higher Education Act of 1965 (HEA), as amended (20 U.S.C. §
1001 et seq.). The ban on incentive payments was added to HEA by the
Higher Education Amendments of 1992, Pub. L. No. 102-325, § 490 (a)(3).
[2] The federal government provided over $100 billion dollars in
grants and loans to fund students' higher education in the 2008-2009
school year. If students default on their federal loans, the
government and the taxpayers--not the schools--are left with the costs
of the unpaid loans.
[3] GAO, For-Profit Colleges: Undercover Testing Finds Colleges
Encouraged Fraud and Engaged in Deceptive and Questionable Marketing
Practices, [hyperlink, http://www.gao.gov/products/GAO-10-948T]
(Washington, D.C.: Aug. 4, 2010).
[4] Pub. L. No. 110-315 § 1124 (2008).
[5] GAO, Higher Education: Information on Incentive Compensation
Violations Substantiated by the U.S. Department of Education,
[hyperlink, http://www.gao.gov/products/GAO-10-370R] (Washington,
D.C.: February 2010). We defined substantiated violations as those
cases in which a violation of the incentive compensation ban was noted
in an Education final determination letter by December 10, 2009, the
most recent information available at the time of this study.
[6] Higher Education Amendments of 1992, Pub. L No. 102-325 §
490(a)(3).
[7] The federal government provided over $100 billion dollars in
grants and loans to fund higher education for students in the 2008-
2009 school year. If students default on their federal loans, the
government and the taxpayers”not the schools”are left with the costs
of the unpaid loans. Generally, the incentive compensation ban applies
to schools participating in federal student aid programs authorized
under Title IV of the Higher Education Act of1965, as amended (20
U.S.C. § 1001 et seq.).
[8] GAO, For-Profit Colleges: Undercover Testing Finds Colleges
Encouraged Fraud and Engaged in Deceptive and Questionable Marketing
Practices, [hyperlink, http://www.gao.gov/products/GAO-10-948T]
(Washington, D.C.: Aug. 4, 2010).
[9] Section 1124 of the Higher Education Opportunity Act, Pub. L No.
110-315, Aug. 14, 2008.
[10] GAO, Higher Education: Information on Incentive Compensation
Violations Substantiated by the U.S. Department of Education,
[hyperlink, http://www.gao.gov/products/GAO-10-370R] (Washington,
D.C.: Feb. 23, 2010). We defined substantiated violations as those
cases in which a violation of the incentive compensation ban was noted
in an Education final determination letter by December 10, 2009, the
most recent information available at the time of the study.
[11] Congress mandated that our review of Education's enforcement
activities focus on Education's actions since 1998.
[12] 20 U.S.C. § 1094(a)(20). Persons or entities refers to school
employees or third-party contractors hired by a school; the ban does
not apply to the recruitment of foreign students residing in foreign
countries who are not eligible to receive federal student aid from the
U.S. government.
[13] 67 Fed. Reg. 67,048 (Nov. 1, 2002).
[14] 75 Fed. Reg. 34,806 (June 18, 2010).
[15] Often, the settlements state that the agreements do not
constitute an admission of noncompliance or wrongdoing; however, the
settlements usually include a payment from the school to Education. We
refer to settlement cases as "involving potential incentive
compensation problems."
[16] If Education identifies a liability for an incentive compensation
violation at a school, the school is required to repay Education all
the federal student aid received for each student improperly recruited
as a result of incentive payments made to recruiters.
[17] 20 U.S.C. § 1094(c) and 34 C.F.R. Part 668, Subpart G.
[18] Annual audits are required of all schools participating in
federal student aid programs and are performed by independent auditors
who examine a school's finances and compliance with Education
requirements. See 20 U.S.C. § 1094(c)(1) and 34 C.F.R. § 668.23.
Program reviews are conducted by Education officials.
[19] For the purposes of this report, we focus on compliance with the
incentive compensation ban, one of the eligibility requirements for
federal student aid program participation.
[20] The qui tam provision of the False Claims Act allows private
citizens with knowledge of government funds inappropriately claimed by
schools to file a lawsuit on the government's behalf and receive a
portion of any penalties imposed. See 31 U.S.C. § § 3729-3733.
[21] Schools that disburse less than $200,000 in federal student aid
funds for 2 consecutive years and meet other conditions may have their
audit submission waived for 3 years. The school must then submit a
compliance audit covering each year in the period and a financial
statement audit for the last year of the waiver period. See 20 U.S.C.
§ 1094(c)(1)(A)(iii) and 34 C.F.R. § 668.27.
[22] See [hyperlink, http://www.gao.gov/products/GAO-10-370R] for
additional information on these 53 schools.
[23] Sixteen schools contracted with the Institute for Professional
Development to recruit students and paid the Institute based on the
number of students recruited. Schools and service providers named in
this report have previously been identified in SEC filings, OIG
reports to Congress, legal filings, or prior GAO reports.
[24] The reviewed compliance audits are not randomly selected.
Accordingly, the results cannot be generalized to the entire
population of audits.
[25] Some of the reviewed compliance audits had both deficiencies.
[26] See President's Council on Integrity and Efficiency, Report on
the National Single Audit Sampling Project, (June 2007) and GAO,
Single Audit Opportunities Exist to Improve the Single Audit Process
and Oversight, [hyperlink, http://www.gao.gov/products/GAO-09-307R]
(Washington, D.C.: Mar. 13, 2009).
[27] See internal control standards in GAO, Standards for Internal
Control in the Federal Government, [hyperlink,
http://www.gao.gov/products/GAO/AIMD-00-21.3.1] (Washington, D.C.:
November 1999) and [hyperlink,
http://www.gao.gov/products/GAO-01-1008G].
[28] Education uses the Postsecondary Education Participants System
(PEPS) data system to track monitoring and enforcement activities. An
Education official told us that updates to the PEPS data system have
occurred in the past when new monitoring needs developed.
[29] See internal control standards in [hyperlink,
http://www.gao.gov/products/GAO/AIMD-00-21.3.1] and [hyperlink,
http://www.gao.gov/products/GAO-01-1008G].
[30] Education has used a working group and other outreach to promote
collaboration among these agencies.
[31] A total of 53 schools had incentive compensation cases. One
school had a substantiated incentive compensation violation and
reached a settlement with Education to resolve a separate incentive
compensation case. This school is counted in both the substantiated
violations and in the settlement agreements.
[32] After a school settles an incentive compensation case, like other
schools, it is subject to subsequent annual audt's that test
compliance with the incentive compensation ban.
[33] All financial payments to resolve incentive compensation cases
were collected by Education and directed to accounts at the U.S.
Treasury.
[34] Computer Learning Center closed and filed for bankruptcy and
Education recouped $16,254,437 of the total liability.
[35] Of the 6 schools, 3 schools closed before the violation was
substantiated, 1 school's compensation program became acceptable with
the introduction of the safe harbor regulations, and 2 schools were
terminated from federal student aid programs before the violation was
substantiated. Neither of these terminations were related to incentive
compensation violations.
[36] Education and a nonprofit school settled an incentive
compensation case based on findings in a program review without a
settlement payment.
[37] University of Phoenix and the Institute for Professional
Development are both owned by the Apollo Group.
[38] Both Phoenix settlements relate to some of the same violations.
[39] These administrative actions are provided for in statute and
regulation for Education. See 20 U.S.C. § 1094(c)(1) and 34 C.F.R. §
668 Subpart G. Schools with limitations may have restrictions on the
number of students they can enroll who receive federal student aid
funding or on the amount of federal student aid funding the schools
can receive. Generally, schools can be suspended from participating in
federal student aid programs for up to 60 days.
[40] When a school's status is provisional, Education closely monitors
the school and can quickly revoke the school's eligibility to
participate in the federal student aid program if needed.
[41] Regulatory requirements place the burden of proof on Education
when assessing a fine because it is a penalty for misconduct. In
contrast, the burden of proof is on the school when Education
identifies liabilities because the school must prove that the federal
student aid funds it received were properly used. See 34 C.F.R.
§668.88(c)(2) and §668.116(d).
[42] As noted earlier, Education proposed new regulations in June
2010, which would eliminate the safe harbors.
[43] The fine guidance is an internal Education document that
describes the suggested fine amounts for different types of federal
student aid violations. Although settlements are generally negotiated
between two parties, Education officials told us the fine guidance is
used to determine settlement payments.
[44] See 34 C.F.R. § 668.84(a)(1) and § 668.92.
[45] The $48.5 million the University of Phoenix paid settled a qui
tam suit under the False Claims Act and was negotiated with additional
parties including the U.S. Department of Justice and the U.S. Attorney.
[46] The telemarketing department of High-Tech Holdings provided
bonuses totaling $359,405 to recruiters for enrolling 4,750 students.
High Tech Institute is currently named Anthem College.
[47] While an Education official told us additional information
related to this decision may be available, Education was not able to
provide supporting documentation to us regarding the reason for the
fine withdrawal.
[48] Congress mandated that our review of Education's enforcement
activities focus on Education's actions since 1998.
[End of section]
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