The U.S. Department of Education Announces that it will Convene New Negotiated Rulemaking Committees

01.12.2023

The U.S. Department of Education (ED) has announced its intentions to undertake a new round of negotiated rulemaking in 2023. Topics for negotiated rulemaking would include accreditation, state authorization, distance education, and cash management.

On January 4, 2023, ED released its Fall 2022 Uniform Agenda as required by Executive Order 12866. The fall edition of the Unified Agenda incorporates the Regulatory Plan, which presents agency statements of regulatory priorities about the most significant regulatory activities planned for the coming year. ED’s significant activities include plans to have a Notice of Proposed Rulemaking (NPRM) or a Final Rule issued within the next 12 months.

New Negotiated Rulemaking

ED had a busy 2021-2022. This year should be no different. The fall Uniform Agenda announced ED’s intent to engage in rulemaking on additional issues that could significantly impact institutions, accreditors, and third-party servicers. Details on potential changes have yet to be released. ED plans to publish in the Federal Register a Notice of Intent to Commence Negotiated Rulemaking on these issues:

  • Accreditation and Related Issues: The Secretary plans to amend regulations on accreditation under the Higher Education Act of 1965, as amended (HEA), including regulations associated with the standards relating to the Secretary’s recognition of accrediting agencies and accreditation procedures as a component of institutional eligibility for participation in Federal student financial aid.
  • State Authorization: The Secretary plans to amend regulations on state authorization as a component of institutional eligibility in 34 CFR 600.2 and 600.9.
  • Distance Education: The Secretary plans to propose to amend the definition of distance education at 34 CFR 600.2.
  • Third-Party Servicers and Related Issues: Third-Party Servicers and Related Issue
  • Cash Management: The Secretary plans to amend the cash management regulations to ensure that students have and maintain timely access to student aid disbursed by their institutions of higher education.
  • Return to Title IV: The Secretary plans to amend regulations on the requirements for institutions to return unearned Title IV funds, to consider opportunities to protect students and taxpayers while easing the administrative burden for institutions of higher education.
  • Improving use of Deferments and Forbearances: The Secretary plans to amend regulations on deferments and forbearance under the HEA, including regulations associated with the standards and requirements for issuing forbearances and deferments, particularly in relation to income-driven repayment.
  • Federal TRIO Programs: The Secretary plans to amend current regulations on the Federal TRIO programs under the HEA, which may include technical improvements to programmatic eligibility and operations. The Secretary intends to solicit further input on potential changes the Department may pursue via future public forums.

The Uniform Agenda states that negotiated rulemaking will begin in April. That said, other agency priorities, the 2024 election, and congressional oversight could significantly delay the completion of the rulemaking process.

Affordability and Student Loans & Institutional and Programmatic Eligibility Rulemaking

The Uniform Agenda also provided an update on Standards of Administrative Capability, Gainful Employment, Factors of Financial Responsibility, Certification Procedures, and Ability to Benefit rulemaking. The Uniform Agenda notes that an NPRM is expected to be published for these issues in April 2023.

As a reminder, under the Master Calendar rule, Title IV regulations published on or before November 1 of a given year do not take effect until July 1. If the regulations are published after November 1 of a given year, the regulations do not take effect until July 1 of the second year after that year.

Other Issues of Interest

The Uniform Agenda also provided updates on relevant issues outside the Title IV context. These issues include:

  • Title IX: ED plans to publish the final rule in April 2023.
  • Family Educational Rights and Privacy Act (FERPA): ED expects to publish an NPRM in April 2023, to amend FERPA. ED seeks to update and clarify the current regulations by addressing outstanding policy issues, such as clarifying the definition of "education records" and clarifying provisions regarding disclosures to comply with a judicial order or subpoena.
  • Joint Rule Workforce Innovation and Opportunity Act (WIOA) Effectiveness in Serving Employers Performance Indicator Provisions: ED and the U.S. Department of Labor are currently analyzing public comments regarding the definition of the primary indicators of performance in WIOA regulations. The Departments plan to complete their analysis by May 2023.

Brandon Sherman advises postsecondary institutions, accrediting agencies, and education investors on matters pertaining to federal financial aid eligibility, accreditation, cybersecurity, and Title IX

Maynard is a full-service firm with attorneys experienced in all regulatory and operational aspects of higher education, including federal and state oversight, accreditation, cybersecurity, transactions, and real estate concerns. We are available to advise and assist institutions with compliance with Title IV regulations and to monitor the potential ED rulemaking. Please let us know if we can be of assistance.

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