U.S. Department of Education Rulemaking 2021-2022

Watch for timely updates to the resources on this page regarding the 2021-2022 USED Rulemaking.

2021 - 2022 Department of Education Federal Rulemaking 

USED Website for rulemaking notices, recordings, proposal language and transcripts: Negotiated Rulemaking for Higher Education 2021-22. Note the voting outcome.

• Affordability and Student Loans Committee:  12 issues - 4 issues reached consensus
• Institutional and Programmatic Eligibility Committee:  7 issues – 2 issues reached consensus
  • Note Issue #6:  Certification Procedures.  34 CFR 668.14(b)(32)  (addresses Professional Licensure and Reciprocity)

Actions Taken since rulemaking committees concluded:

Final Rules Released

• July 3, 2024 - U.S Department of Education; ED  Electronic Announcement; Certification Procedures 668.14(b)(26) "maximum/minimum rule" for gainful employment programs - 360 Degree Education, LLC et al v. U.S. Department of Education et al, preliminary injunction granted, the rule is ENJOINED pending resolution of the lawsuit (means that this particular subsection is on hold from enforcement).
• May 17, 2024 - U.S. Department of Education;  Certification Procedures - Questions and Answers
• April 09, 2024 - (GE-24-03) Updates on New Regulatory Provisions Related to Certification Procedures and Ability-to-Benefit - limited compliance extension for PPA Professional Licensure regulations through January 1, 2025. Read carefully and document.
• October 31, 2023 - Responsibility, Administrative Capability, Certification Procedures, Ability to Benefit (ATB) effective 7/1/24
• October 10, 2023 - Financial Value Transparency and Gainful Employment effective 7/1/24
• November 1, 2022 - Institutional Eligibility Under the Higher Education Act of 1965, as Amended; Student Assistance General Provisions; Federal Perkins Loan Program; Federal Family Education Loan Program; and William D. Ford Federal Direct Loan Program (Borrower Defense to Repayment Regulations)
• October 28, 2022 - Pell Grants for Prison Education Programs; Determining the Amount of Federal Education Assistance Funds Received by Institutions of Higher Education (90/10); Change in Ownership and Change in Control

Office of Management & Budget (OMB)

Agency Rule List - Fall 2022 provides updates to timelines

• Certification Procedures NPRM target release date April 2023.
• Gainful Employment NPRM target release date April 2023.

Actions Under Review (click on ED)

• June 8, 2022 - Improving Income-Driven Repayment [1840-AD69], Implementing Statutory Changes to Pell Grants for Incarcerated individuals [1840-AD54] and 90/10 [1840-AD55] and Clarifying Rules on Changes in Ownership - COMPLETED
• April 22, 2022 - RIN 1840-AD53 Borrower defense; 1840-AD59 Total and Permanent Disability, Closed School, and False Cert Discharges; 1840-AD70 Public Service Loan Forgiveness; 1840-AD71 Interest Capitalization - COMPLETED
• September 20, 2022 - RIN: 1840-AD53 - Pending EO 12866 Regulatory Review - Borrower Defense to Repayment - In anticipation of Final Rule to b released by November 1, 2022. CONCLUDED 10/24/22.
• September 29, 2022 - RIN 1840-AD69 - Pending EO 12866 Regulatory Review- Pell Grants for Prison Education Programs; Determining the Amount of Federal Education Assistance Funds Received by Institutions of Higher Education (90/10); Change in Ownership and Change in Control - In anticipation of Final Rule to be released by November 1, 2022. CONCLUDED 10/19/22.
• February 17, 2023 - RIN:  1840-AD57 - Pending EO 12866 Regulatory Review - Gainful Employment (1840-AD57); Financial Responsibility (1840-AD64); Standards of Administrative Capability (1840-AD65); Certification Procedures (1840-AD80); Ability to Benefit (1840-AD51) COMPLETED 5/1/23
• August 16, 2023 - RIN:  1840-AD57 - Pending EO 12866 Regulatory Review - Stage: Final Rule - Gainful Employment (1840-AD57) COMPLETED 9/15/23.
• September 18, 2023 - Pending EO 12866 Regulatory Review - Financial Responsibility (1840-AD64); Standards of Administrative Capability (1840-AD65); Certification Procedures (1840-AD80); Ability to Benefit (1840-AD51)  COMPLETED 10/11/23.

Notice of Proposed Rule Making (NPRM)

• May 19, 2023 - Department of Education Releases Proposed Rules on Accountability for Certificate and For-Profit Programs and Transparency into Unaffordable Student Debt; Federal Register Announcement:  Financial Value Transparency and Gainful Employment, Financial Responsibility, Administrative Capability, Certification Procedures, Ability to Benefit; Comment Period through June 20, 2023. (Certification Procedures includes Professional Licensure and may affect Reciprocity)
  • NEW JUNE 8, 2023: SAN & WCET Public Comment NPRM 2023 (Programs Leading to License)  https://bit.ly/san-wcetNPRM2023PublicCommentProfLicensure
  • NEW June 13, 2023:  SAN & WCET Public Comment NPRM 2023 (Reciprocity Impact) https://bit.ly/san-wcetNPRM2023PublicCommentReciprocityImpact
• July 28, 2022- Education Department Releases Proposed Regulations to Protect Veterans and Service Members, Increase College Oversight, and Increase College Access for Incarcerated Individuals; Federal Register Announcement:  Institutional Eligibility, Student Assistance General Provisions, and Federal Pell Grant Program; Comment Period through August 26, 2022. (Pell for Incarcerated Individuals, 90/10 Rule, Change of Ownership Rules)
• July 13, 2022 - U.S. Department of Ed Releases Proposed Regulations to Expand and Improve Targeted Relief Programs; Federal Register Announcement:  Student Assistance General Provisions, Federal Perkins Loan Program, Federal Family Education Loan Program, and William D. Ford Federal Direct Loan Program Comment Period through August 12, 2022. (Borrower Defense proposed regulations)

Looking Ahead to a 2023-2024 Rulemaking: 

January 4, 2023 U.S. Department of Education Released New Regulatory Agenda - indicates notice of intent to commence rulemaking will be released in spring 2023 to address approximately 8 issues including state authorization, definition of distance education, accreditation, and third-party servicers (OPMs).  SAN created the 2023-2024 Rulemaking webpage to follow the Department's next rulemaking process.

Resources:

• The Shot Clock is Ticking Down!  Do You Have a Game Plan for New Licensure Regulations? SAN Member Only 90 Minute Webinar! Video Recording, Slide Deck, Transcript are posted (member login required). Q&A coming soon!; May 16, 2024.
• Ready or Not, Here It Comes! New Regulations When Offering Programs Leading to a License Effective July 1!; WCET Frontiers, 5/16/24
• SAN Professional Licensure New Regulations FAQ - updated by the SAN Special Interest Team for Professional Licensure; May 14, 2024.
• ED’s Evolving State Authorization and Professional Licensure Requirements; Archived Webinar; Presented by Thompson Coburn, WCET, and SAN; April 4, 2024.
• New Federal Regulations, Part 1: Addressing Programs Leading to a License or Certification, WCET Frontiers, October 31, 2023
• New Federal Regulations, Part 2: Addressing Compliance with State Closure Laws and the Impact on Interstate Reciprocity Agreements, WCET Frontiers, October 31, 2023
• Proposed Federal Rules Affecting Programs Leading to a License & State Authorization Reciprocity Need a Delayed Effective Date ; 8/25/23
• ED's New Proposed Regulations:  Part 2, Changes for Programs Leading to Professional Licensure; 5/25/23
• ED’s New Proposed Regulations: Part 1, State Authorization Reciprocity, WCET Frontiers, 5/24/23
• New Federal Aid Rules Drop Proposed Change to “Distance Education” & Expand Pell Grants to Incarcerated Students, WCET Frontiers, 11/2/22
• Notice of Proposed Rulemaking: Time to Review Proposed Regulations & Consider Public Comment, WCET Frontiers, 8/3/22 
• What’s Happened to Those Federal Regs on Professional Licensure and Reciprocity?; WCET Frontiers, 6/24/22
• Digital Learning:  A Mystery about Pending Federal Rules; WCET Frontiers, 6/14/22
• More Federal Rulemaking Excitement for Distance Ed Fans…and Next Steps; WCET Frontiers, 3/24/22
• Excited about March Madness? Proposed Section 32 Will Excite Distance Ed Fans; WCET Frontiers, 3/21/22
• Federal Policy Surprises!  Updates and Call to Action; WCET Frontiers, 2/22/22.

Resources Prepared by SAN:

• 2022 Negotiated Rulemaking Review - two page document; key points addressing Section 32 from Issue #6 Certification Procedures; Professional Licensure & Reciprocity.
• Institution - Planning for Advocacy- Suggestions for institutional planning to participate in the rulemaking process.
• Institution - Planning for Change - Suggestions for institutional planning to address regulatory changes at the institutions.
• Variability of State Professional Licensing Landscape - Examples describing the patchwork of state compliance requirements for programs leading to a professional license 
• Overview of Distance Education Protections Desired by Consumer Advocates - Review of desired consumer protections raised by consumer advocates.

Other Resources:

• Teaching Online Podcast (TOPcast):  April 18, 2022; University of Central Florida;  EPISODE 112: SARA (AND MORE!) UNDER SIEGE; Guests Russ Poulin and Cheryl Dowd join hosts Kelvin and Tom to bring some breaking news on governmental regulation that could change the way online higher education works in the US. Listen carefully and share with institutional colleagues to avoid unpleasant surprises.
• SAN/WCET/WICHE/SREB/NEBHE,MHEC Letter: February 14, 2022, to the Negotiators about proposed changes to a state authorization reciprocity agreement.

U.S. Department of Education Rulemaking Process:

• Federal Regulations are developed by the Department of Education to implement the aspects of the Higher Education Act, which is Federal law.  The process to create the language for the regulations is through the Negotiated Rulemaking Process ("Neg Reg").  
• The rulemaking process is directed through the Administrative Procedure Act (APA).  Strict adherence is required.  Failure to follow the APA requirements could cause a regulation to be challenged and possibly vacated by Federal courts for failing to follow APA process.
• Key stakeholders affected by the issues to be addressed are nominated and become the Negotiated Rulemaking Committee.  This committee meets to discuss the issues and ultimately votes on a regulatory package for those issues.  The committee must vote 100% in favor of the language of the entire regulatory issue package, which is called consensus.  Issues that do not reach consensus can then be written by the Department.
• Strict regulatory calendar process includes the following:
  • Consensus language and language written by the Department is to be released as proposed language subject to a public comment for at least 30 days.
  • The Department must review all public comments and prepare responses as well as submit to Office of Management & Budget (OMB) to review for economic impact.
  • Must be released as final regulations by November 1 in order for the regulations to become effective the following July 1.  Release of final regulations after November 1 delays the effective date until the following July 1.
• Learn more about the Federal rulemaking process through review of these webinars and videos:
  • Webinar: The Federal Rulemaking Process:  How to Follow and Inform Colleagues about the Upcoming Negotiated Rulemaking Meetings and Outcomes; (Recording, Slide Deck, and Transcript)
  • Video #1 Impact of HEA & Role of the Court related to Federal Regulations 
  • Video #2 Negotiated Rulemaking and Proposed Regulations