NAICU Washington Update

"Neg Reg" Teams Finish Round One

March 09, 2009

The negotiated rule-making ("neg reg") process to develop consensus regulations for certain aspects of the new Higher Education Act completed its first phase of negotiations in Washington on March 5.  With five negotiating teams having convened over three weeks, the process now adjourns until April to give the Department of Education time to develop draft regulations based upon preliminary negotiations.  Team members will come back in April to further negotiate the details.

The first round of talks began with each of the teams addressing items such as the goals and elements of the process and a review of protocols, member lists, and agendas.  Some teams also added primary representatives and/or alternates, while other teams, for various reasons, blocked new entrants.

Some of the teams' discussions of the protocols and membership revealed a difference between the Department of Education's interest in team members who could provide operational details, and associations' desire for representatives conversant with their memberships and issues.  For example, there was discussion of whether negotiator's being from a private institution automatically make that negotiator a true representative of all private colleges.  The distinction is critical, because once a team has reached consensus, any organization that has nominated team members is bound by the team's decision.  This has been a long-standing source of friction, and attempts to address it legislatively haven't completely settled the matter.

Negotiated rulemaking is a critical step in the reauthorization process.  Many of the gains made by private colleges in the lengthy Higher Education Act reauthorization could be lost if the regulations move back toward some of the more troubling proposals that almost became law.  While regulations can't override law, murky legislative language can lead to multiple legal interpretations - and a chance for mischief.

NAICU staff are actively engaged in the rule-making process, and have been a part of all sessions - whether as formal negotiators or public participants.  Among the key issues we are monitoring are the many new student aid provisions, campus safety requirements, illegal downloading provisions, transfer of credit, accreditation, student disclosures, fraud and abuse provisions, and new student aid conflict of interest rules for colleges.


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