Today, the U.S. Department of Education (ED) announced it will hold public hearings on April 11-13, 2023 as a way to receive feedback from stakeholders on the regulatory issues that may impact postsecondary student success.

The Department is considering the following topics for upcoming rulemaking:

  • The Secretary’s recognition of accrediting agencies and other quality assurance metrics
  • Institutional eligibility, including definitions of state authorization
  • The definition of “distance education” as it pertains to clock-hour programs and reporting regarding students who enroll primarily online  
  • Third-party servicer issues including reporting, financial responsibility, compliance and past performance requirements as a component of institutional eligibility for participation in Title IV programs
  • Return of Title IV funds to address requirements for participating institutions to return unearned Title IV funds in a manner that protects students and taxpayers, and easing the burden for institutions
  • Cash management to address timely student access to disbursement of Title IV funds
  • Federal TRIO programs, including improvements to program eligibility

ED is also seeking feedback on ways in which it can improve federal student loan borrowers’ understanding of repayment options as a way to encourage borrowers to enroll in an income-driven repayment (IDR) plan (instead of enrolling in deferment or forbearance).

The Department’s announcement comes on the heels of a Dear Colleague letter, which set forth new guidance on third-party servicers and Online Program Managers (OPMs). Our team has written on this new guidance and hosted a webinar with Charlie Rose and Dennis Cariello from HMBR on March 2.

How can I make comments at the public hearings?

Individuals who would like to make comments at the public hearings must register by sending an email message to no later than 12 ET on the business day prior to the public hearing at which they wish to speak. The inquiry should include the name and email address of the speaker, the general topic(s) to be addressed, and at least two dates and times during which the individual would be available to speak. 

The public hearings will be held April 11-13 from 10am-noon ET and 1pm-3pm ET.

What’s next?

This notice of intent to commence rulemaking is the first step in the process of issuing new regulations. After these public hearings are held, ED will determine which issues they will focus on through rulemaking and will seek nominations for negotiators who will serve on negotiated rulemaking committees starting in Fall 2023.

What is Negotiated Rulemaking?

Negotiated Rulemaking is the process by which the legislative intent of the Higher Education Act (HEA) can be translated into action. In short, negotiated rulemaking works like this:

After choosing the negotiators, ED hosts a series of meetings (oftentimes between 2-3) facilitated by a neutral professional mediator. The negotiators react to proposed issues and draft regulatory language that ED presents. The objective is to reach consensus on ED’s proposed rule on a specific topic. If the negotiators reach consensus, then ED must publish the regulations as agreed upon for public comment. If negotiators do not reach an agreement, ED may craft its own rules that are based on—but not bound by—the negotiations.