The Biden Administration recently announced that it will establish a negotiated rulemaking committee charged with developing a series of new higher ed regulations.

The committee will focus on a range of topics, but notably exclude highly anticipated efforts to regulate so-called Third-Party Servicers (TPS). The reprieve may only be short term, however: the Department indicated plans to update its TPS guidance in early 2024.

What Is Negotiated Rulemaking? Read W/A Senior Vice President Alison Griffin’s negotiated rulemaking primer in Forbes.

Education businesses, investors and institutions have paid close attention to the TPS issue since ED rescinded a February Dear Colleague Letter (DCL) that would have greatly expanded the definition of a TPS, with far reaching implications for the sector.

Although ED has indicated that it still intends to revise the DCL, the Department has yet to issue further guidance since an April 2023 blog post.

What’s in? Topics that will be covered during the negotiation, include:

  • A review of the the definition of distance education as it pertains to clock hour programs, and further reporting requirements for students who enroll primarily online;
  • Potential changes to institutional eligibility requirements, including state authorization;
  • Changes to provisions that guide the Return of Title IV funds process; and
  • Changes to provisions that address disbursement of student funds and cash management procedures.

The Department also announced a subcommittee to address participant eligibility requirements for the federal TRIO programs.

What happens next? ED is requesting nominations for both primary and alternate negotiators. Nominations for negotiators can be submitted directly to ED and must be received by December 13, 2023. More details about the requirements for negotiators are outlined in the Federal Register notice.

  • Once negotiators are selected, they will meet three times: January 8-11, February 5-8 and March 4-7, 2024.
  • The negotiators for the subcommittee reviewing TRIO eligibility criteria will meet twice: January 12 and February 9.

Go deeper: Our team will continue to provide updates and analysis. For questions, please reach out to us.