The Department of Education published final regulations that had achieved unprecedented consensus prior to the reporting deadline for the master calendar. However, two of the three regulations were not finalized in time for the publishing deadline and so will not go into effect on July 1, 2020 but at a later date.

The House Democrats completed their comprehensive proposal to reauthorize the Higher Education Act. However, this act is not assured of getting out of the House due to a significant price tag. Many are watching the Senate to see if negotiations between Senator Lamar Alexander and Senator Patty Murray will serve as the impetus for passage of this long-delayed update.

Department of Education Regulatory Activity

Neg Reg 2019

While the Neg Reg 2019 discussions led to consensus on three areas — innovation, accreditation, and distance/online education — only one, accreditation, made it through to completion by the Department of Education in time for publication in the Federal Register by Nov. 1.  The other two packages did not make it to the public comment portion of the process.

The package dealing with accreditation and the roles of the various members of the triad (the federal government, the state-level department and the accrediting agency) made it through for publication, and most stakeholders believe the changes are good.  They include:

  • Updating the process for reviewing accrediting bodies.
  • Giving accreditors more flexibility when looking at new programs within institutions to improve innovation vs. “hard and fast” rules.
  • Giving institutions and accreditors more latitude with distance education, as well as the state’s roles and delivery of online education
  • Redefining regular and substantive interaction to give people more access to education at times that are more productive for the individual (think Western Governors University).
  • Encouraging policymakers and accreditors to take institutional and programmatic differences into account during accreditation.
  • Offering new guidance on teach-out plans and the roles and responsibilities of accreditors, states and institutions with regard to these plans.
  • Protecting students’ access to their information and the processes involved when institutions close their doors at the institutional, state and accreditor level.

These improvements on innovation could accelerate students’ progress and get them into the workforce more quickly (which costs them less). The higher education community – primarily the publics and the private non-profits — have been looking for these regulatory changes.

In comparison, the failure to publish the other two proposals (or even go out to the public for comment) was disappointing, even though there are legitimate reasons for this. Department officials said that general counsel and other staff found problematic issues in relation to the broader context when they took a hard look at the proposals.  For example, department officials had concerns about how to measure competency-based education using the credit hour.  

There were many areas that were not considered because they are divisive and fly in the face of regulatory and congressional personnel who are far more familiar with the old model (face-to-face/bricks and mortar).  These areas require groups to look at issues from new perspectives, e.g., delivery, cost, accelerating students’ education to get them into the workforce quicker by taking into account a student’s previous experience (CBE), and work study and apprenticeships. This can be difficult for individuals who haven’t participated in programs outside of traditional delivery systems or in non-traditional work study opportunities that involve mentorships.  For these policymakers, the proposed changes were seen to be jarring.

The changes to the consensus packages will require taking them back to the original participants in the process to attempt to regain consensus – potentially pushing this out to next year or even later because of the upcoming presidential election.

Title IX and Cleary Act Changes

Despite its inability to publish two consensus packages, the Department is getting closer to rolling out two additional regulatory packages – changes to Title IX and Cleary Act.

There has been considerable commentary and discussion on the Title IX package – over 150,000 comments. The public comments are about the victim’s rights, the adjudication process, and the investigation process in relation to the rights of both the accused and the accuser.

The Education Department has culled through the comments, and has sent the guidelines to OMB for its review, the final step before publishing it in the Federal Register (and making it official).  OMB has scheduled meetings through mid-December with multiple interested parties.  

The Department is looking to publish a final rule in the next few months. However, some House Democrats as well as Sens. Murray and Durbin have concerns about the proposed Title IX changes and are using those concerns to hold up reauthorization of the Higher Education Act.

Higher Education Act

Reauthorization of the Higher Education Authorization Act is moving forward in the House. The proposed legislation is designed, among other things, to protect minority-serving institutions, as Hispanic-serving institutions and other groups of institutions were facing the end of funding.

The House Democrats are proposing reauthorization with major changes. Some of the proposals that have attracted major attention include

  • Partnership programs between the state and federal governments that would lead to free community college education;
  • A significant revamping of the roles and responsibilities of the Department in relation to the direct loan program;
  • Significant changes in assessment; and
  • A review of financial need to broaden the ability for students to get financial assistance through Pell Grants.

The plan also would provide a greater amount of consumer information but also would consolidate that information under the Net Price Calculator and the College Scorecard that would be accessible to both consumers and legislators.

Another section of the proposal focuses on for-profit higher education, especially focusing on recent institutional closures. The Democrats are seeking to legislate gainful employment for all programs. There also are a number of areas focused on accountability of the for-profit higher education community, including establishing an oversight and enforcement entity to review for-profit institutions.  The Pell Grants for short-term programs and incarcerated students would not be eligible to participate. The Ability to Benefit program that serves students who don’t have a high school diploma or GED who can show the ability to matriculate by completing six credit hours was modified to bring greater access.

The Democrats also looked at regulatory issues around Title IX and specifically prohibited the Secretary of Education from publishing any revisions to Title IX. This bill, which underwent a three-day mark-up, also has other changes, including reframing substance abuse into substance misuse.

The bill was voted out of committee with a straight party-line vote.

The next step is to take the bill to the House floor, but there is no guarantee that this bill will make it out of the House since there is a considerable price tag attached – some estimates are north of $400 million in new spending, and much of this money would go to institutions serving minority student populations. This leaves a number of moderate and fiscally conservative Democrats wondering whether they can support this legislation because of its price tag.

In the Senate, Sen. Alexander is looking to create a legislative vehicle that will burnish his policymaking legacy through passage of the Higher Education Act before his retirement from public office. He reached out to House Democrats with input on their bill in an attempt to make the proposal palatable to both Democrats and Republicans. These include FAFSA simplification, Pell Grants for short-term programs and Pell Grants for incarcerated individuals.

The House Democrat and the Alexander plans are being analyzed to determine if a compromise can be developed. Several individuals in Washington D.C. are working toward this, even though the nation is heading into an election year.

Three Takeaways for Higher Education Leaders:

  • Take a look at the changes in relation to the accreditation process. This is a divergence from the norm and many institutional leaders will approve of these changes. Being able to think outside of the box and outside of the rigid standards will encourage innovation both online and for bricks-and-mortar institutions.
  • Watch whether Sen. Alexander and Sen. Murray are able to get on the same page and get momentum in relation to a smaller bill, and whether this bill will be acceptable to the House.
  • Watch for Title IX regulations to come out at the end of the year. There is much that institutions were looking for, but there will be many new details to digest for implementation.

Bullet Points

  • Only one area – accreditation — was published in November. Other regulations that achieved consensus were pulled down by Department of Education counsel and staff.
  • The accreditation changes provide for a more individualized approach that will take into account differences in institutions and programs within institutions.
  • Competency-based education and assessment were not published due to concerns raised by Department of Education legal counsel and staff. These areas will go back to discussions.
  • Title IX and Cleary Act continue to be a hot button issue. This area also is influencing House Democrats in their efforts to create a Higher Education Act.
  • The House will consider a proposal created by Democrats to reauthorize the Higher Education Act; however, the cost of this act may be too much to receive full House approval. Sen. Alexander is trying to find ways to make this proposal more palatable to Republicans and Democrats.

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