“Throughout this Administration, the Department of Education has aggressively enforced accountability and compliance laws for institutions of higher education to protect students, families, and taxpayers,” US Education Under Secretary Ted Mitchell said as he announced that Bard College has agreed to pay $4 million to settle charges arising out of a whistleblower lawsuit initiated by former Bard graduate students alleging claims under the False Claims Act.
Officials from the DOE, the DOE’s Office of Inspector General, and the DOJ worked together to bring about the settlement. The qui tam plaintiffs will receive a share of the settlement proceeds.
The plaintiffs alleged that Bard College told them that graduates of its masters in teaching arts program, offered at a new campus in Delano, California, would be certified to teach in California and be placed for employment with schools with which Bard had partnered. The partner schools were said to be high-need schools serving California’s Central Valley that had been experiencing a critically low supply of teachers. The California Commission on Teacher Credentialing, however, allegedly had not approved Bard College to offer a teacher credentialing program. Graduates of its masters program, therefore, were not eligible to obtain a California teacher certificate or teach in the state upon graduation. What’s more, Bard allegedly had failed to obtain commitments from area schools to employ graduates of its program.
The plaintiffs further claimed that Bard included in its application to take part in DOE’s Teacher Quality Program (TQP) statements that students in its masters teaching program would take California tests for licensure. But, because Bard students were not eligible to obtain a California teaching certificate, Bard’s statement to DOE conflicted with a chief purpose of the TQP: namely, to hold institutions accountable for preparing qualified teachers. Bard, furthermore, did not first gain accreditation of its new masters teaching program in California and then report that accreditation to DOE before disbursing Title IV funds made available to TQP participants; it also did not comply with other conditions of its TQP grant.
“Today’s resolution demonstrates the Department of Justice’s continuing commitment to ensuring that [institutions participating in loan and grant programs administered by DOE] meet those conditions and fulfill their promises,” added United States Attorney Benjamin B. Wagner.
Recent surveys suggest that $4 million would more than cover the annual budget of most corporate compliance programs. Understanding the financial pressures facing institutions of higher education, it is reasonable to assume that the sum Bard College just agreed to pay the government to resolve False Claims Act allegations would go just as far when allocated to enhancing compliance programs at institutions of higher education.
Just like for-profit business organizations, nonprofit colleges and universities face the daunting task of keeping pace with an ever-evolving landscape of regulation. Institutions need to ensure they are complying with the law, avoiding government intervention and fines, protecting their federal funding, and preserving their reputations. A university that is compliant is also better able to serve its community.
To protect your institution and enhance its ability to fulfill its educational mission, consider adding these seven features to your compliance program.
- Centralize your compliance function. End the era of subject-matter fiefdoms. Channel all activity through a central compliance office or contact, with clear reporting lines to the board and president.
- Look to the Federal Sentencing Guidelines. Structure your university-wide compliance plan according to regulators’ expectations in today’s world. The Federal Sentencing Guidelines for Organizations apply with equal force to non-profits.
- Ensure administrative accountability. Provide reporting lines from senior administrators to the board; appropriately separate the board and administration.
- Create the necessary oversight positions. These are among the positions you may need to ensure your compliance bases are covered: Chief Compliance Officer, Title IX Coordinator, Clery Act Coordinator, Youth Protections Officer, Data Privacy Officer, Import/Export Officer.
- Code of Conduct and other policies. It is vital to communicate your expectations to your community clearly. Address all significant issues in the open. Take stock of and fill any policy gaps and train appropriate individuals.
- Promote reporting mechanisms. Publicize your hotlines and non-retaliation policy and ensure appropriate reporting lines are part of your central compliance function.
- Embrace enterprise risk management. Take regular stock of your identified as well as new risks. Give the board oversight of risks.
For more information about these seven steps and to learn more about our compliance work, please contact Brett Ingerman, Charles P. Scheeler or T. Brendan Kennedy.