34 C.F.R. § 668.404

Calculating earnings premium measure

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(a) General. Except as provided under paragraph (d) of this section, for each award year, the Secretary calculates the earnings premium measure for a program by determining whether the median annual earnings of the students who completed the program exceed the earnings threshold.

(b) Median annual earnings; earnings threshold. (1) The Secretary obtains from a Federal agency with earnings data, under § 668.405, the most currently available median annual earnings of the students who completed the program during the cohort period and who are not excluded under paragraph (c) of this section; and

(2) The Secretary uses the median annual earnings of students with a high school diploma or GED using data from the Census Bureau to calculate the earnings threshold described in § 668.2.

(3) The Secretary determines the earnings thresholds and publishes the thresholds annually through a notice in the Federal Register.

(c) Exclusions. The Secretary excludes a student from the earnings premium measure calculation if the Secretary determines that—

(1) One or more of the student's Direct Loan Program loans are under consideration by the Secretary, or have been approved, for a discharge on the basis of the student's total and permanent disability, under 34 CFR 674.61, 682.402, or 685.212;

(2) The student was enrolled full-time in any other eligible program at the institution or at another institution during the calendar year for which the Secretary obtains earnings information under paragraph (b)(1) of this section;

(3) For undergraduate programs, the student completed a higher credentialed undergraduate program at the institution subsequent to completing the program as of the end of the most recently completed award year prior to the calculation of the earnings premium measure under this section;

(4) For graduate programs, the student completed a higher credentialed graduate program at the institution subsequent to completing the program as of the end of the most recently completed award year prior to the calculation of the earnings premium measure under this section;

(5) The student is enrolled in an approved prison education program;

(6) The student is enrolled in a comprehensive transition and postsecondary program; or

(7) The student died.

(d) Earnings premium measures not issued. The Secretary does not issue the earnings premium measure for a program under § 668.406 if—

(1) After applying the exclusions in paragraph (c) of this section, fewer than 30 students completed the program during the two-year or four-year cohort period; or

(2) The Federal agency with earnings data does not provide the median earnings for the program as provided under paragraph (b) of this section.

Notes of Decisions

Cited in 5 cases (1 in the last 5 years), 2015–2022 · leading case: Association of Proprietary Colleges v. Duncan

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Association of Proprietary Colleges v. Duncan (2015) nysd · cites it 5× “, the eight and 12 percent figures for debt-to-annual earnings and debt-to-discretionary income, respectively — are based on "industry practices and expert recommendations.”

American Association of Cosmetology Schools v. Devos (2017) dcd · cites it 3× “-, see also 34 C.F.R. § 668.404 . The GE regulations use two tests to determine whether programs “pass,” each of which is designed to determine whether programs’ graduates are earning enough income to justify the government’s guarantee of their loans.”

Association of Private Sector Colleges and Universities v. Duncan (2015) dcd “34 C.F.R. § 668.404 (a)(1). The second is a debt-to-annual-income metric, which the Department calculates using a simpler equation-just dividing the median annual loan payment for a program’s students by the mean or median annual earnings of those students, whichever is greater.”

National Student Legal Defense Network v. United States Department of Education (2022) dcd “, 34 C.F.R. §§ 668.404 (a) (2019) (“[F]or each award year, the Secretary calculates D/E rates for a GE program .”

American Federation of Teachers v. DeVos (2020) cand “See 34 C.F.R. §§ 668.404 (c)(1). Once 12 the MOU terminated, the DEO had no way to identify which GE Programs would qualify as 13 “failing” or “in the zone” for a second year under the 2014 GE Rule.”

— 34 C.F.R. § 668.404(a) — 1 case

American Association of Cosmetology Schools v. Devos (2017) dcd “-, see also 34 C.F.R. § 668.404 . The GE regulations use two tests to determine whether programs “pass,” each of which is designed to determine whether programs’ graduates are earning enough income to justify the government’s guarantee of their loans.”

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