This year, the Education Department plans to amend the rules governing accreditation, state authorization, distance learning, money management, and third-party service providers. Also planned for this spring by the agency are new Title IX and gainful employment regulations.
The United States Department of Education intends to keep busy with another round of negotiated rule-making given that Republicans currently hold the majority in the House of Representatives and the threat of oversight.
Agenda for 2023
The regulatory agenda for 2023, which was announced on Wednesday, builds on the department’s two-year effort to overhaul regulations. A few new regulations will take effect on July 1 and the department still needs to finalize a few new rules from earlier negotiated rule-making sessions this year. This year’s agenda includes changing laws governing third-party service providers, cash management, state authorization, accreditation, and distance learning.
Clare McCann, a higher education fellow at Arnold Ventures and a former employee of the Education Department under the current administration, said, “This is especially ambitious in light of everything that the departments have already done and everything that they still need to finish.”
The notice of intent to start the negotiated rulemaking process will be published by the department in April. The department also intends to publish new regulations this spring regarding the definition of employers that qualify for Public Service Loan Forgiveness, improving income-driven repayment, and gainful employment. According to the agenda, a final set of regulations updating Title IX of the Education Amendments of 1972 is anticipated in May.
Additionally, the department still intends to publish a separate notice outlining proposed guidelines for transgender students participating in sports. The department did postpone until December 2023 the updating of the rules for Title VI of the Civil Rights Act of 1964, which was designed to shield students from harassment and discrimination because of their shared ancestry or ethnic characteristics.
To combat antisemitism, the department has previously stated that a new regulation would be issued in December 2022. According to McCann, the department has addressed a variety of accountability-related issues in previous rounds, and this year’s agenda fills in the gaps of what wasn’t accomplished, particularly about state and accreditor oversight.
“Regulations on both of those issues were promulgated under the Trump administration, and they created several issues that weakened oversight of institutions,” she said. These are the final two issues that can be resolved administratively without statutory change if what you want is a strong accountability agenda.
With the two parties controlling Congress, it seems unlikely that any legislation will be changed during the next two years. The regulatory agenda for the department is silent on the specific changes that are intended, and a request for more information was not answered by the press office.
According to Cynthia Jackson Hammond, president of the Council for Higher Education Accreditation, “One can suspect that [the Education Department] will want to codify in regulation some of the guidance it promulgated in the wake of the Florida legislation concerning accreditation as well as other subjects.”
It will be crucial to include CHEA in the negotiations given its accreditation expertise. Given its ambitious agenda, the department will need to put in a lot of effort to achieve its regulatory goals, according to Hammond.
Jamienne Studley, the president of the WASC Senior College and University Commission and the chairwoman of the Council of Regional Accrediting Commissions, announced that the group of regional accrediting agencies would be meeting the following week to discuss the issues they would like to see taken into account during the rule-making process.
We have some time to consider it, according to Studley. “I believe it will be fascinating. I’m not yet ready to discuss the subject’s substance. The department and accreditors, according to Studley, share several important objectives, one of which is to make sure that all accredited institutions “deserve that status and deserve to participate in Title IV.”
At the moment, federal regulations define distance education as the use of specific types of technology to support “regular and substantive interaction” between the students and the instructor while delivering instruction to students who are dispersed from the instructor.
In response to public comments, it was stated that this definition would limit institutional flexibility, ignore different state standards, and “would cause significant disruptions for students and unnecessary costs for institutions without a discernible benefit.”
According to documents from the department, “Commenters were persuaded that the change we proposed could create significant unintended challenges for students and institutions [and] that requires additional consideration.”