In an updated regulatory agenda issued this week, the Department of Education announced new plans to amend numerous federal rules governing Title IV of the Higher Education Act. The Department also provided an update on its previously announced rulemaking plans.
 
New Regulations Planned
Most of the new items that appear on the Department’s updated regulatory agenda will affect the regulations governing the Title IV student financial aid programs and related rules and thus will require the Department to engage in negotiated rulemaking. These topics include:

•  Accreditation;
• State authorization;
• Return to Title IV;
• Cash management;
• Third-party servicers (presumably including online program management companies);
• Improving use of deferments and forbearances; and
• Distance education.

 Notably, many of these topics were the subject of the Trump Administration’s negotiated rulemaking session held in 2018-19. According to the updated agenda, the Department expects to begin the process of forming a negotiated rulemaking committee in April 2023.
 
In addition to amending provisions governing the Title IV programs, the Department also formally announced its plan to issue a notice of proposed rulemaking (NPRM) to address nondiscrimination on the basis of sex in athletics. In July 2022, the Biden Administration issued proposed Title IX regulations but declined to address how Title IX should be applied in the context of athletics. Instead, the agency planned a separate rulemaking on criteria regarding the eligibility of transgender students to participate on sex-segregated athletic teams. The NPRM on athletics is expected to be published early this year.
 
Updated Information on Existing Regulatory Plans
 In addition to announcing new rulemaking plans, the Department’s updated regulatory agenda contains new information on previously announced regulatory actions.  Here are several key activities the Department is planning for the coming year:
 
January
 The Department expects to publish an NPRM about free inquiry on college campuses and a final rule on employer eligibility in the Public Service Loan Forgiveness (PSLF) program as early as this month. The free inquiry NPRM is expected to revise Trump-era regulations governing freedom of speech and religion at colleges and universities and the PSLF final rule is expected to clarify which for-profit employers can be considered as eligible employers in the program.
 
In addition, the Administration announced a new Income-Driven Repayment plan last August that stemmed from the Affordability and Student Loan committee negotiated rulemaking session. Further details of this plan have yet to be revealed but the updated unified agenda has indicated that an NPRM was supposed to have been published in December 2022. Given this information, it is expected that this NPRM could be released as early as this month.
 
April
In April, the agency expects to publish two NPRMs. The first would address the remaining topics – ability to benefit, gainful employment, financial responsibility, administrative capability, and certification procedures – from negotiated rulemaking sessions held in 2021 and 2022. The second would seek to amend the regulations governing the Family Educational Rights and Privacy Act.
 
May
The Department announced it has targeted May for its publication of final rules on Title IX.  It also anticipates publishing an NPRM addressing disability discrimination under section 504 of the Rehabilitation Act of 1973 in May.
 
December
The Department announced this week that it was delaying – until December – publication of proposed rules addressing discrimination based on national origin under Title VI of the Civil Rights Act, including discrimination based on shared ancestry or ethnic characteristics or citizenship or residency in a country with a dominant religion or distinct religious identity. In the meantime, the Department issued guidance reminding colleges and universities of their legal obligations under Title VI. In particular, the guidance identifies circumstances in which Title VI may prohibit discrimination based on race, color, or national origin against students of any religion, such as students who are Jewish, Christian, Muslim, Sikh, Hindu, or Buddhist.