Education Department Advances Partial Rulemaking Package

The Department of Education is moving forward with proposed regulations that reflect only half of the issues considered during the Program Integrity and Institutional Quality negotiated rulemaking session that ended in March.

The delay in finalizing the other half of the package means institutions of higher education will, for the time being, be spared from controversial changes to rules governing state authorization, accreditation, and cash management. NAICU has strenuously advocated for changes to these proposed provisions, which would negatively affect exemptions for in-state authorization, reciprocity agreements for distance education, accreditation, the ability to provide reduced cost books and supplies to students, and refunds of cash-value meal plan accounts.

Earlier this week, the Department sent proposed regulations on return to Title IV (R2T4), distance education, and TRIO to the Office of Management and Budget (OMB) for the final stage of regulatory review before the regulations are published. The proposals are not yet public, but, based on the final language on the table during negotiated rulemaking, the regulations are likely to address the following issues:

• R2T4. The greatest issue of concern to private, nonprofit institutions in the negotiations on R2T4 was the Department’s proposal to require institutions to take attendance for courses delivered entirely through distance education, except for dissertation research courses.
• Distance Education. The Department proposed very limited changes to institutional distance education regulations. The most significant change would eliminate the ability to offer asynchronous clock hour distance education programs.
• TRIO. These changes would broaden eligibility for TRIO programs to any student who has or is seeking to enroll in a high school in the United States or its territories.

By sending the partial regulatory package to OMB now, the Biden Administration appears to be attempting to finalize the regulations on R2T4, distance education, and TRIO before November 1, which would mean the rules would become effective on July 1, 2025. The delay in the proposed rules on state authorization, accreditation, and cash management means that those regulations are less likely to go into effect next July 1, if at all.