NAICU Washington Update

Negotiated Rulemaking Committee Adds Additional Session

March 07, 2019

Grappling with an ambitious regulatory agenda that governs many elements of federal higher education policy, negotiators on the rulemaking committee established by the Department of Education have voted to add a fourth session to their deliberations. The Department agreed to add an additional meeting in April after negotiators argued that they would not otherwise have sufficient time to address the multiple regulatory changes proposed by the Department. 

Although the pace of deliberations has been slow, several common themes have emerged during the first two negotiated rulemaking sessions, which occurred in January and February. 

First, negotiators have pointedly questioned the Department’s rationale for many policy changes related to accreditation.  Negotiators for the Department, meanwhile, appear to be amenable to some of the accreditation changes proposed by non-federal negotiators, as well as to proposals to amend regulatory language in other areas.

Second, the Department’s decision to establish three subcommittees to advise the full committee has produced mixed results. Based on a report from the subcommittee examining TEACH grants, consensus seems to be building around a regulatory fix for inadvertent grant-to-loan conversions under the program. In contrast, consensus is likely to be elusive for the faith-based subcommittee, which appears to be evenly divided regarding proposals to improve access to the Title IV programs and to add exceptions related to religious institutions. 

Despite progress on these fronts, many issues remain to be addressed. In particular, due to time constraints, the subcommittee examining distance education and educational innovation was unable to complete its report to the full committee. As a result, the full committee has not yet examined some of the Department’s proposals to expand Title IV access for distance education and short-term programs. These issues are likely to be among some of the more controversial changes offered by the Department, given that many negotiators have balked at proposals that seem to promote innovation at the expense of student and borrower protections. 

Negotiations will continue in March, starting with the subcommittees on March 11-12. Following the subcommittee discussions, the full committee will reconvene on March 25-28 and again on April 1-3 for its final session. If the full committee fails to reach consensus, the Department will have the right to publish regulations in line with its own vision, regardless of the views of the negotiators. 

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