U.S. Department of Education Negotiated Rulemaking – Session One Recap: Part Three

To close out this series of summaries of the first session of Negotiated Rulemaking, today UpdateEd looks at the U.S. Department of Education’s proposed changes to regulations regarding pre-dispute arbitration and class action waivers. We will also analyze the “neg reg” session as a whole.

As identified in the Department’s issue paper (see here), the proposed changes to pre-dispute arbitration and class action waivers are very significant, constituting a return to the 2016 BDR rule’s prohibitions as well as the addition of new provisions. Proposed changes are as follows. Continue reading “U.S. Department of Education Negotiated Rulemaking – Session One Recap: Part Three”

U.S. Department of Education Negotiated Rulemaking – Session One Recap

On Friday, October 8, 2021, the U.S. Department of Education wrapped up its first week-long session of the (virtual) Affordability and Student Loan Negotiated Rulemaking. The Department’s agenda (see here) kicked off with a discussion of each of the twelve issue papers, some with proposed regulatory language, provided to the committee prior to the beginning of the sessions. Continue reading “U.S. Department of Education Negotiated Rulemaking – Session One Recap”

Duane Morris Analyzes USDE’s Notice Establishing Negotiated Rulemaking Committee and First Round of Negotiation Topics

On August 6, 2021, the U.S. Department of Education (USDE) announced that it would be establishing a negotiated rulemaking committee, entitled the “Affordability and Student Loans Committee,” that will, starting in October, meet to begin rewriting certain Title IV-related regulations. The announcement also included a schedule for the virtual negotiation sessions and instructions on how to submit nominations for committee, subcommittee, and advisor spots. The full announcement, officially published on August 10, can be found here.

Continue reading “Duane Morris Analyzes USDE’s Notice Establishing Negotiated Rulemaking Committee and First Round of Negotiation Topics”

USDE Publishes Six Proposed Priorities, Gives Insight Into Biden Administration’s Agenda

On June 30, 2021, the U.S. Department of Education (USDE) published a list of six proposed priorities regarding discretionary grant programs for Secretary Cardona and the Biden Administration’s education agenda. While the priorities mostly cover K-12 issues and a policy response to COVID-19, one particular entry (Priority #5) may provide insight into the Department’s thinking regarding the upcoming regulatory agenda, which is set to kick off later this month.

Continue reading “USDE Publishes Six Proposed Priorities, Gives Insight Into Biden Administration’s Agenda”

Department of Education Interprets Title IX to Protect LGBTQ+ Students

The Department of Education issued on June 16, 2021, a Notice of Interpretation concluding that Title IX prohibits discrimination on the basis of sexual orientation and gender identity. Accordingly, the Department will now “fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive Federal financial assistance from the Department.”

In the Notice, the Department Continue reading “Department of Education Interprets Title IX to Protect LGBTQ+ Students”

U.S. Department of Education Proposes Massive Rewrite of Title IV Regulations

Later this month the Department of Education will embark on the first steps towards a massive rewrite of programs authorized by Title IV of the Higher Education Act of 1965. The Department is seeking input on a wide range of federal higher education topics, as identified in the notice, as well as input on how the Department could address gaps in postsecondary outcomes such as retention, completion, loan repayment, and student loan default by race, ethnicity, gender, and other key student characteristics. Continue reading “U.S. Department of Education Proposes Massive Rewrite of Title IV Regulations”

Another Hint? Interpreting How the Biden Administration Will Approach Title IX Regulations

On April 6, the Department of Education’s Office for Civil Rights (OCR) issued a new letter to students, educators, and stakeholders indicating the process that the Biden Administration will be undertaking on the issues surrounding the Title IX regulations. While light on details, the letter does provide a roadmap for OCR’s next steps and what colleges and universities can expect in the Title IX regulatory arena in the near future. Continue reading “Another Hint? Interpreting How the Biden Administration Will Approach Title IX Regulations”

U.S. Department of Education Solicits Comments on Proposed Institutional Eligibility Criteria for HEERF Supplemental Aid

On February 25th, the U.S. Department of Education published a notice requesting comment on proposed eligibility criteria for implementing the Coronavirus Response and Relief Supplemental Appropriations Act (CRRSAA), Section 314(a)(3) program, called the Supplemental Aid to Institutions of Higher Education (SAIHE) Program for which Congress authorized at set aside of Higher Education Emergency Relief Funds (HEERF). The notice also requests public comment on the proposed criteria and application information that the Department will use to determine eligibility. Only public and non-profit institutions of higher education are eligible for funding under Section 314(a)(3).

According to the notice, the Department is proposing to use the following institutional criteria to determine SAIHE eligibility of those institutions with the greatest unmet needs related to COVID-19: Continue reading “U.S. Department of Education Solicits Comments on Proposed Institutional Eligibility Criteria for HEERF Supplemental Aid”

U.S. Department of Education Final Rule on Distance Education and Innovation: What You Need to Know

On September 2, 2020, the U.S. Department of Education (“Department”) published a Final Rule, available at https://ifap.ed.gov/federal-registers/FR090220, on distance education and innovation.  The regulations are effective July 1, 2021; however, institutions are permitted to voluntarily implement any or all provisions as of September 2, the date of publication of the final rule.  The Department states that the rule is intended to “strike a balance” between fostering increased innovation in distance education offerings while protecting students and taxpayers.The rule makes the following regulatory changes:

• Allowing asynchronous delivery of some courses or portions of courses delivered as part of clock hour programs (this significant change was made in response to public comments on the proposed rule);
• Providing flexibility to distance education, competency-based education (CBE), and other types of educational programs that emphasize demonstration of learning rather than seat time when measuring student outcomes;
• Clarifying the distinction between distance education and correspondence courses and more clearly defining the requirements of “regular and substantive interaction” between students and faculty and the permissibility of engaging instructional teams in the delivery of education through distance learning;
• Clarifying the requirements for direct assessment programs, including how to determine equivalent credit hours and how to distribute aid to simplify administration, reduce confusion, and protect taxpayers;
• Limiting the requirement for institutions with strong track records to obtain approval from the Education Secretary for only the first direct assessment program offered by the school at a given credential level;
• Requiring institutions to report to the Education Secretary when adding a second or subsequent direct assessment program or establishing a written arrangement for an institution or organization that is not eligible to participate in the title IV, HEA program to provide more than 25 percent, but no more than 50 percent, of a program;
• Recognizing the value of “subscription-based programs,” and simplifying rules regarding the disbursement of title IV funding to students enrolled in these programs; and
• Requiring prompt action by the Department on applications by institutions to the Education Secretary seeking certification or recertification to participate as an eligible institution in the HEA, title IV program.

The rule also adds a definition of “juvenile justice facility” to ensure that students incarcerated in a juvenile justice facility continue their eligibility for Pell Grants.

Additional regulatory changes include:

• Encouraging employer participation in developing educational programs by clarifying that institutions may modify their curricula based on industry advisory board recommendations without relying on a traditional faculty-led decision-making process;
• Simplifying clock-to-credit hour conversions and clarifying that homework time included in the credit hour definition do not translate to clock hours, including for the purpose of determining whether a program meets the Department’s requirements regarding maximum program length;
• Encouraging institutions to give students equal credit for time spent preparing for and participating in lecture and laboratory courses;
• Clarifying that an institution may demonstrate for purposes of participating in title IV, HEA programs, a reasonable relationship between the length of a program if the number of clock hours does not exceed either 150 percent of the minimum requirement to work in the State in which the institution is located or 100 percent of the minimum hours in an adjacent State;
• Providing that the Education Secretary will rely on the accrediting agency or State authorizing agency to evaluate an institution’s appeal of a final audit or program review determination by the Department that includes a finding about the institution’s classification of a course or program as distance education or the institution’s assignment of credit hours; and
• Encouraging closing institutions to offer quality teach-outs by permitting the application of sanctions to individuals or institutions affiliated with other institutions that closed without executing a viable teach-out plan or agreement. 

The final rule culminated a rulemaking that began nearly two years ago, building on the Trump administration’s Rethink Higher Education agenda that “challenged past practices, assumptions, and expectations about what ‘college’ is, what it should do, and how it should operate.” It remains to be seen whether these regulations would be subject to amendment from a change in Secretary, but we view this set of rules as less controversial than others amended or rescinded by Secretary DeVos (such as Gainful Employment and Borrower Defense to Repayment) and not likely to be a priority for change by a new Administration. Institutions of higher education should familiarize themselves with these rule changes as they develop distance education programs.