An ‘Ambitious’ Regulatory Agenda

With Republicans in the majority in the House of Representatives and oversight looming, the U.S. Education Department is planning to stay busy with another round of negotiated rule making.

The docket for this year includes amending regulations on accreditation, state authorization, the definition of distance education, cash management and third-party servicers. The regulatory agenda for 2023, released Wednesday, builds on two years of regulatory overhaul that the department has undertaken. A number of new rules will go into effect July 1, and the department still has a number of new regulations from previous negotiated rule-making sessions to finalize this year.

“This is especially ambitious in light of everything that the department’s already done and everything that they still need to finish,” said Clare McCann, a higher education fellow at Arnold Ventures, a philanthropy, who previously worked in the Education Department during the current administration.

The department plans to release the notice of intent to begin negotiated rule making in April. Also this spring, the department is planning to release new rules for gainful employment, on improving income-driven repayment and regarding the definition of employers that qualify for Public Service Loan Forgiveness. A final set of regulations overhauling Title IX of the Education Amendments of 1972 is expected in May, according to the agenda.

Plus, the department is still planning to issue a separate notice of proposed rules governing transgender students’ involvement in sports.

The department did push off updating the regulations for Title VI of the Civil Rights Act of 1964 to protect students from harassment and discrimination because of shared ancestry or ethnic characteristics until December 2023. The department has previously said it would issue a new rule in December 2022 as part of an effort to combat antisemitism.

Accreditation

McCann said the department has tackled a range of accountability issues during previous rounds, and this year’s agenda helps to fill in the gaps of what didn’t get done, particularly regarding oversight by states and accreditors.

“There were regulations promulgated under the Trump administration on both of those issues that created a number of problems that weakened oversight of institutions,” she said. “If what you really want is a strong accountability agenda, these are the last couple pieces that you can tackle on the administrative side without statutory change.” (Any statutory change seems unlikely during the next two years with control of Congress divided between the two parties.)

The department’s regulatory agenda does not include details about what specific changes are planned, and the department’s press office did not respond to a request for more information.

The Trump administration eliminated the regulatory distinctions between regional and national accreditors, meaning that colleges and universities could potentially shop around for a different accrediting agency.

“We’ve already started to see that play out with the examples of schools that are seeking changes in their accreditors,” McCann said.

The Florida Legislature voted last year to force state colleges and universities to switch accreditors each cycle, and the state has since begun to look for new accreditors.

“One can suspect that [the Education Department] will want to codify in regulation some of the guidance that it propounded in the wake of the Florida legislation concerning accreditation as well as other subjects,” Cynthia Jackson Hammond, president of the Council for Higher Education Accreditation, said in a statement. “With CHEA’s expertise in accreditation it will be important to have CHEA involved in the negotiations.”

Hammond noted that the department will have to work hard to meet its regulatory goals, given its ambitious agenda.

The group of regional accrediting agencies is planning to meet next week to discuss what they would like to see considered during the rule-making process, said Jamienne Studley, president of the WASC Senior College and University Commission and chairwoman of the Council of Regional Accrediting Commissions.

“We have a little time to think about it,” Studley said. “I think it will be interesting. I’m not ready to talk about the substance yet.”

Studley said the department and accreditors share key goals, including to ensure that all the accredited institutions “deserve that status and deserve to participate in Title IV.”

“We’ll have to see what they think the specifics are that can improve movement in that direction, and whether there are positive changes that we’d like to use this occasion to help us do what we can to continue and improve in accomplishing that quality and accountability,” she said.

Studley and others were worried about the range of issues on the agenda.

“Sometimes with a range of issues as wide as this appears to be, it can be a challenge in terms of time to go deep enough into complicated issues and to bring people along and a challenge to get the subject matter representation that you need for each of them when there are so many subjects,” she said. “The department has the challenging job of deciding how to have a manageable set of negotiators while covering a lot of bases of different kinds of perspectives.”

Distance Education

Russell Poulin, who leads the Western Interstate Commission for Higher Education’s Cooperative for Educational Technologies, or WCET, is hoping that the department will use this round of rule making to create a standard definition of distance learning that reflects the current reality.

“Within the Department of Education, they have three very different views of distance education, depending on whether you’re talking about financial aid, accreditation or how you report to [the Integrated Postsecondary Education Data System],” he said.

Federal regulations currently define distance education as using certain kinds of technology to deliver instruction to students who are separated from the instructor and to support “regular and substantive interaction” between the students and the instructor.

Poulin also would like to see the department provide clarity on the “regular and substantive interaction” standard—an issue WCET has raised concerns about to the department.

He added that, over all, he was worried the rule-making process could lead to restrictions for institutions that “are actually good actors in using these technologies.”

“They’ve started thinking that anyone who does distance education is now a bad actor,” he said.

Cheryl Dowd, the senior director of WCET’s State Authorization Network, said she was worried about the department conflating distance education and state authorization rules.

During the last round of negotiated rule making, the department proposed and later withdrew a definition of distance education. That definition said that distance education programs would be associated with the main campus for institutions that offer on-campus and distance education programs. Institutions that offer only distance education would be located where its administrative offices are located.

Public comments on that definition said it would hamper flexibility for institutions, doesn’t take into account varying state standards and “would create significant disruptions to students and unnecessary costs for institutions without a discernible benefit.”

The department said in documents that it was “persuaded by the commenters that the change we proposed could create significant unintended challenges for students and institutions [and] that requires additional consideration.”