Summer is ending and the fall term is weeks away. As we pay attention to educating students, the U.S. Department of Education staff are mounting their surfboards to ride another wave of regulatory changes for colleges and universities. Let’s look at what federal actions will be cresting soon…

Accreditation

In April and May, the Accreditation, Innovation, and Modernization (AIM) Committee held its deliberations and came to consensus on regulatory changes. As summarized by the Council for Higher Education Accreditation (CHEA), the proposed changes include:

• Streamlining transfer of credit.
• Strengthening conflict of interest controls (for accrediting agencies).
• Opening the market for new accreditors.
• Simplifying the recognition process for institutions seeking to change accreditors.
• Emphasizing student outcomes (over input measures).
• Protecting academic freedom and intellectual diversity.

These are changes that begin a process that will have deep impact on institutions, especially how transfer decisions are made, accountability for student outcomes affects college processes, decision-making on changing accrediting agencies, or navigating “intellectual diversity” while being asked to avoid other types of “diversity.”

On August 5, the Department sent their proposed language to OMB for review. Once OMB approves the final version (likely, in the next few weeks), a Notice of Proposed Rulemaking (NPRM) is released for public comment. As Antoinette Flores of CHEA suggests:
“I keep hearing people say that comments don’t matter because the Department reached consensus and nothing will change. As the person that sat on the other side working with a team of folks reading and responding to every single comment, that is absolutely not true. That means institutions, accrediting agencies, associations, think tanks, student organizations, professors, researchers, members of Congress, and the public should weigh in thoughtfully and constructively.”

The comment period might be short. It is anticipated that the Department would like to publish these regulations by November 1. They need to hit that deadline for the regulatinos to become effective on July 1, 2027.

Be ready to comment.

The Unified Agenda Gives Us a Peak at the Next Waves

So what else is coming? The “Unified Agenda” published by the Office of Information and Regulatory Affairs lists the status of each Department’s current regulatory actions and new items being proposed. If they follow this agenda, the coming months will be busy. I will cover what is of more interest to the digital learning community…

College Textbook/Materials Packaging

You may recall that the debates between the “inclusive access” (publishers and institutions forge agreements that cut textbook prices, but limited student purchase options) and the open education (develops free course materials) communities. Talk became heated when this issue was raised under the previous Administration. “Inclusive access” usually requires students to “opt out” of not purchasing a book, but there are tremendous savings. Opponents wanted an “opt in” option instead. The cited unsavory practices in some college/publisher agreements, which upset those who entered those contracts with purer motives.

Given that the “opt out” rule remained in place, it is unclear what the Department will propose. The title they gave the issue, “Reducing Anti-Competitive Regulatory Barriers,” gives us a telling hint. That sounds like the Department is taking a pro-publisher position.

Oddly, the Department cites the wrong regulatory section in this notice, it should be 34 C.F.R. 668.164(c)(2). Obviously, they are going beyond the “opt out” discussion and will be addressing some of the other perceived limitations in that section. Perhaps they will tackle institutional documentation on the price and availability of books or having to demonstrate “compelling health or safety reasons” for using the course materials.

A first call for rulemaking is scheduled for September.

Transfer of Credits

Oddly, in the same “Reducing Anti-Competitive Regulatory Barriers” notice, there are a few words tacked onto the end of the main descriptoin: “…and to improve the transferability of college credits.” There is no other mention of this issues in the notice and I am not sure what this has to do with being anti-competitive textbook procurement requirements.

Please do not forget that transfer is a big emphasis of the accreditation reforms mentioned in the above negotiations. I can only assume that they are thinking of additional penalties or incentives for institutions to accept more transfer credits.

That should be part of the Anti-Competitive call for rulemaking scheduled for September.

Addressing Title IV Eligibility Issues

Another upcoming rulemaking proposal is of interest even though it does not necessarily affect digital learning. An upcoming rulemaking will focus on Title IV aid regulations, as the impact faith-based and for-profit institutions. Let’s not sleep on this one. The Federal financial aid focus is broad enough that whatever comes from it could have an impact on all institutions. The Department:

“…proposes to address Title IV eligibility issues to remove requirements that unnecessarily target faith-based or for-profit institutions and interfere with efficient and beneficial mergers, sales, and transfers of institutions of higher education. Such issues to be addressed in the context of institutional eligibility for participation of Federal student financial aid include rules governing change of ownership, cash management, administrative capability standards, program length requirements, and financial responsibility requirements.”

Keeping the wave theme, this is likely focused on a “wipeout” of what the last administration implemented for these institutions. They also go one step further and seek to end the 90/10 rule aimed at for-profit institutions. This law regulates the amount of Federal financial aid money that can fund a for-profit institution. It will be interesting to see how they handle this as I believe this is a statutory requirement.

A first call for rulemaking is overdue and should come out soon.

Additional Issues

The Department also plans to hold rulemakings on:

• Foreign gifts and contracts received by institutions.
• Rescinding the Saving on a Valuable Education (SAVE) Plan, which is an already deceased Biden program.
• Campus safety and security reporting pursuant to the Clery Act.

These are all due to be started in the coming months.

In Conclusion…

Get ready for wave after wave of regulatory action in the coming months. If they are like others held during this Administration, then the Department will enter each negotiation with a proposal that is fairly complete. Negotiators will be picked and negotiations will be held with the goal of coming to consensus…perhaps very quickly.

Even so, follow what happens and use your time to provide input of comments when requested. Volume in comments makes a difference.

Russ Poulin
CEO
EduPolicy Insights, LLC