The Biden administration has stayed busy in the last few weeks of office, generating attention for efforts to expand debt forgiveness and repayment. But that’s not all they’ve been up to impacting postsecondary education.
The outgoing administration finalized new regulations governing distance education programs December 30, which—while removing more controversial elements—will still require institutions to report information about which students who received Federal financial aid are enrolled in distance education or correspondence courses.
On January 14, the Department also shared a Dear Colleague Letter that takes aim at universities’ relationships with Online Program Managers (OPMs). The letter specifically calls out institutions themselves as responsible for the actions of OPMs and other third-parties, particularly around what it calls “misrepresentation” (e.g., describing online programs as “the same as” corollary residential or campus based version of the program when they are different).
So with President-elect Trump taking office on January 20, what happens to these “midnight regulations?”
- Finalized rules: For rules that have been finalized (e.g., Gainful Employment), the new administration will need to put out a Notice of Proposed Rulemaking in the Federal Register and go through the Negotiated Rulemaking process. This will likely be the process that President-elect Trump’s administration uses to revise or remove the Biden administration’s distance education regulations if it chooses to.
- There are also legislative routes for reversing final rules promulgated by the previous administration through the Congressional Review Act, which enables Congress to consider a resolution of disapproval of the regulation. If the resolution is passed, the agency charged with administering the regulations is prohibited from doing so and the agency is unable to issue a rule that is “substantially the same” in the future.
- Non-final rules: There are a few processes through which an incoming administration can stop a non-final regulation. Previous incoming presidential administrations of both parties, including Trump during his first term, have issued regulatory freezes/moratoriums as an early step in their administration. A moratorium allows the new administration to sift through all regulations that were in development under the previous administration and determine whether the regulation should move forward as is, be adjusted, or otherwise halted permanently.
We will continue to monitor closely the status of these new regulations, as well as the new administration’s enforcement of prior regulations.