Federal Regulatory Issues

 September 9, 2010


Ms. Jessica Finkel                                                                       
U.S. Department of Education
1990 K Street NW Room 8031
Washington, D.C. 20006

Docket ID ED- 2010-OPE-0012


Office of Congressman Scott Garrett
Fifth District, New Jersey


Dear Ms. Finkel:

    At a recent conference of the National Interstate Council of State Boards of Cosmetology (NIC) that I attended in Seattle, Washington, I became aware of the aforementioned Notice of Proposed Rulemaking. NIC develops and administers the independent testing that many students that graduate and subsequently seek licensure must pass in the majority of States. During the presentation and the subsequent conversations there were some serious concerns that surfaced that are cause for this response.

     It has long been conventional wisdom that the phrase “Gainful Employment in a Recognized Occupation” was centered on the potential and pursuit of an individual entering a process that culminated with obtaining the necessary credential to pursue employment in a given field. Institutions are charged (and approved) with providing individuals with the requisite education mandated by the state where they are located. Upon successful completion of the program the institution certifies that the individual qualifies to sit for the exam. Upon the student successfully passing the exam they become eligible to be “Gainfully employed in the recognized occupation” in any of the identified areas covered by the credential.

     Under the present proposal it seems that institution’s responsibilities go far beyond the successful completion and subsequent licensing of the individual. Holding the institution responsible for the behavior of the students beyond the obtainment of the state mandated credential would seem arbitrary at best. Beyond that the potential unintended consequences are exacerbated by the fact that the proposed rule may have an undue focus on women and other historically under represented populations in the higher education community, because it proposes that backward looking average actual earnings compared to student loan debt would establish a bright-line threshold, in spite of the fact that those earnings could not be connected to employment related to the educational program. Further, the potential for closure of institutions that are program specific causes us great concern as we recognize that this is an industry that already is experiencing a shortage of entry level employees.

     We would urge the Secretary to consider options to the proposed rule that would be fairer and more equitable to the institutions that provide education in this sector. While we recognize the need to regulate, we are equally sensitive to the delicate balance that is accountability, access and choice. We look forward to working towards solutions that make sense, and we request that the Secretary withdraw this potentially harmful rule until such time as the issue can be openly explored and negotiated toward a better solution.





Susanne S. Warfield

Executive Director