NASFAA

ED Announces Slew of New Negotiated Rulemaking Sessions, Time Frame for Release of Proposed Rules on Gainful Employment, Borrower Defense

By Joelle Fredman, NASFAA Staff Reporter

The Department of Education (ED) yesterday announced intentions to initiate negotiated rulemaking for regulations related to state authorization, accreditation, access to high quality and innovative programs, and eligibility of faith-based entities and activities, as well as plans to release proposed rules on gainful employment and borrower defense, which recently underwent a set of rulemaking sessions under the Trump administration.

ED published final rules related to state authorization of distance education in December 2016, which were set to go into effect July 1, 2018. Yesterday’s announcement, however, officially delays the effective date for two years and indicates that ED will initiate negotiated rulemaking sessions to rewrite the regulations. ED sent a proposed rule to the Office of Management and Budget (OMB) late last month requesting to delay the rule, though it was unclear at that point for how long.

ED also announced that it intends to rewrite, through negotiated rulemaking, regulations aimed at the Title IV eligibility of religious institutions and activities to receive federal aid, details of which will be published in September. According to the announcement, current regulations “unnecessarily restrict participation by religious entities. For example, some provisions may be overly broad in their prohibition of activities or services that relate to sectarian instruction or religious worship.” ED added that “other provisions may be overly broad in prohibiting the benefits a borrower may receive based on faith-based activity.”

Additionally, ED intends to convene negotiated rulemaking sessions to rewrite regulations related to the definition of a credit hour, competency-based education, direct assessment programs, and issues related to distance education programs, “in order to promote greater access for students to high-quality, innovative programs of postsecondary education.” Details will be published next month.

The announcement also provided an update on ED’s already-underway efforts to rewrite borrower defense to repayment and gainful employment regulations. Just a few months ago higher education stakeholders concluded a set of rulemaking sessions on both Obama-era regulations, which Education Secretary Betsy DeVos announced intentions to convene shortly before the rules were set to go into effect in 2017. Both sessions concluded with no consensus as negotiators continued to debate fundamental issues. ED wrote that it will publish notices of proposed rulemaking (NPRM) for borrower defense and gainful employment rules in May and June, respectively.