November 2018 | Lewis-Burke Associates LLC
​A VIEW FROM WASHINGTON

Congress may have left D.C. to campaign back home this past month, but the Trump Administration has continued to make waves in federal education policy.  The U.S. Department of Education intends to revise a full slate of higher education related regulations, detailed further below.  A federal court, however, did intervene on attempts by for-profit colleges and the Trump Administration to halt and to delay the Obama Administration’s regulation to allow defrauded borrowers to forgive their student loans, known as borrower defense to repayment.  The court’s ruling means that the U.S. Department of Education will have to allow forgiveness to move forward, although implementation details are still uncertain. A trial over Harvard University’s admissions policies and affirmative action has dominated education headlines.  The case may eventually end up in the recently reconstituted and more conservative U.S. Supreme Court.
 
The 2017 Harry W. Colmery Educational Assistance Act, commonly referred to as the Forever GI Bill, called for a recalculation of housing allowances for student veterans based on the primary campus location attended.  Due to technical problems of implementing this change, which was to go into effect in August, the U.S. Department of Veterans Affairs has fallen behind in providing housing allowances to potentially hundreds of thousands of student veterans.  The House Veterans Affairs Committee intends to review the on-going housing payment delays in November when congressional members return.
 
Stay tuned for special post-election coverage as Lewis-Burke will delve into and share what the new Congress will mean for education policies and funding. 
 

 

ED Solicits Nominations for Accreditation and Innovation Negotiated Rulemaking Committee
On October 15, the Department of Education (ED) announced its intention to establish a negotiated rulemaking committee to prepare proposed regulations for student aid programs under Title IV of the Higher Education Act (HEA).  ED is requesting nominations for individual negotiators to serve on the committee who represent stakeholder constituencies for the issues to be negotiated.  ED also announced the creation of three subcommittees and requested nominations for individuals with relevant expertise to participate on the subcommittees.  Regulatory issues to be considered include accreditation, distance education, competency-based education, TEACH Grants, and more.

ED’s request for negotiator nominations follows its July 31 announcement of its intention to begin rulemaking, its request for written comments on topics for consideration by the negotiated rulemaking committee, and three public hearings where comments were also solicited.  As a result of these comments and feedback, ED has decided to establish a single Accreditation and Innovation negotiated rulemaking committee and three topic-based subcommittees.  Additionally, ED noted that they are scheduling additional days for the committee meetings and will use “redlined regulatory text as the starting point of negotiations instead of issue papers” to streamline the process and ensure proper attention to each topic.  ED intends to select negotiators for the committee who represent the interests significantly affected by the topics proposed for negotiations and reflect the diversity of higher education institutions.  Nominations for negotiators to serve on the committee and subcommittees are due on or before November 15, 2018. 

Sources and Additional Information:

• The full solicitation, with requested nomination details, can be found at https://www.federalregister.gov/documents/2018/10/15/2018-22506/negotiated-rulemaking-committee-negotiator-nominations-and-schedule-of-committee. 
• The full write-up by Lewis-Burke can be found at https://www.lewis-burke.com/sites/default/files/policy_update_-_ed_solicits_negotiator_nominations_for_negotiated_rulemaking_committee.pdf.

A Full Regulatory Agenda
The Administration published its Unified Agenda of Regulatory and Deregulatory Actions (Agenda) on October 17.  The Agenda includes regulatory actions by executive agencies that are likely to occur in the next 12 months and notes, “By amending and eliminating regulations that are ineffective, duplicative, and obsolete, the Administration can promote economic growth and innovation and protect individual liberty.”  Below are pending regulatory actions that are likely to impact higher education.

U.S. Department of Education (ED)

• Regulations to be addressed in the January 2019 rulemaking:
  • State Authorization and Related Issues: ED is proposing to amend, through negotiated rulemaking, the regulations governing the legal authorization of institutions by States.
  • Accreditation and Related Issues: ED is proposing to amend, through negotiated rulemaking, the regulations relating to the Secretary’s recognition of accrediting agencies and accreditation procedures as a component of institutional eligibility for participation in federal student financial aid.
  • Ensuring Student Access to High Quality and Innovative Postsecondary Educational Programs: ED proposes to create and amend, through negotiated rulemaking, regulations relating to institutional eligibility and operations for participation in federal student financial aid programs.  Regulations relating to the definition of credit hour, competency-based education, direct assessment programs, regular and substantive interaction, and other regulations will be considered.  The Department asserts that these regulatory revisions are, “to promote greater access for students to high-quality, innovative programs of postsecondary education.”
  • Eligibility of Faith-Based Entities and Activities-Title IV Programs: ED is proposing to review and amend, through negotiated rulemaking, regulations related to the eligibility of faith-based entities to participate in the Department’s higher education and student aid program, in order to reduce or eliminate unnecessary burdens and restrictions on religious entities and activities.
  • TEACH Grants: ED is proposing to amend, through negotiated rulemaking, the regulations relating to the Teacher Education Assistance for College and Higher Education (TEACH) Grant in order to simplify and clarify program requirements, minimize inadvertent grant-to-loan conversions, and improve outcomes for TEACH Grant recipients.
• Updating Regulations Relating to the Graduate Assistance in Areas of National Need (GAANN) Program: ED intends to amend regulations concerning the GAANN program.  The most recent GAANN competition included several new areas of national need including “National Civic Literacy.”
• Updating Regulations Relating to the Higher Education Act Title III and Title V Programs: ED is proposing to amend the regulations concerning the programs authorized under Titles III and V (these programs primarily provide grants for minority-serving institutions).  According to ED, these changes are intended to, “further enable minority-serving institutions to strengthen student services and other elements of their missions.”
• Priority for Minority Science and Engineering Improvement Program (MSEIP): ED is proposing to issue a Secretarial priority in MSEIP grant competitions. 
• Institutional Accountability: These rules relate primarily to the regulations around Borrower Defense to Repayment (BDTR).  A federal judge recently ruled that the BDTR regulations promulgated by the Obama Administration in 2016, which were delayed by the current administration, may go into effect. 
• Program Integrity; Gainful Employment: These rules relate to the Title IV eligibility regulations governing certain postsecondary educational programs that prepare students for gainful employment in a recognized occupation.  Similar to the timing issues associated with the BDTR regulations, ED has missed a filing deadline, which means the regulations developed under the Obama Administration remain in effect.  New rules may be finalized by the end of the year.
• Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance: ED plans to issue a notice of proposed rulemaking to clarify the Title IX regulations on sex discrimination, including complaints of sexual misconduct and procedures to address misconduct.  The announcement of rulemaking is excepted sometime in November.

Significant regulatory proposals that will impact higher education are also being considered by the Department of Homeland Security, Department of State, and the Department of Labor.  These regulations would include changing the current “duration of status” system (the period a student is pursuing a full course of study and any authorized practical training) for foreign student visas to one with a maximum period of authorized stay.  Also being considered are revisions to the regulations related to the waiver of the "two-year home-country physical presence requirement” for certain exchange visitors.  Additionally, regulations are pending regarding guidelines for third parties to accredit industry-recognized apprenticeship programs and regulations governing overtime pay exemptions.

Sources and Additional information:

• The Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions is available at https://www.reginfo.gov/public/do/eAgendaMain.