Published by: WCET | 11/14/2024
Tags: Distance Education, Managing Digital Learning, Negotiated Rulemaking, Policy, Regulation, SAN, State Authorization, U.S. Department Of Education
The direction for regulations and guidance for digital and distance education shifted greatly with the recent election. As you may recall, the U.S. Department of Education (the Department) was planning to release sweeping regulatory changes on distance education, accreditation, state authorization reciprocity, and mandatory fees for books and materials. They also planned changes to guidance for “bundled services,” which affects online program management relationships.
You asked about the state of the outstanding regulations and guidance. We will give you our best insights in this blog post. A future post will explore what might be expected from the new administration…and beyond.
The truism in that title seems obvious, but we often hear from people who think that promised change is wholesale and immediate. It is not.
Many Department regulations are currently in place and have been for years. A few examples include regular and substantive interaction, obligations to meet authorization and professional licensure requirements in other states, and student identity verification – which ensures that the distance student completing an assessment is the same one who registered for a course.
Existing Regulations or Guidance: Any existing regulations will remain in effect until they go through an official process to be changed. Similarly, guidance is amended or withdrawn formally by the agency providing the guidance. There are several pathways for the official change process for existing regulations. In the following section, we will highlight what those processes are. Meanwhile, we urge you to remain in compliance with existing regulations and guidance.
Proposed Regulations or Guidance: Any proposed regulations do not go into effect until they complete all of the statutorily mandated processes to be implemented. Currently, several regulations are midstream in the process and have not reached the far side of the river. We will highlight some of those of interest the WCET and SAN memberships.
There is a little more than two months between the election and the inauguration. The leadership (sometimes several levels down) in each and every department of the federal government will change due to political appointments and then set plans, mesh with career staffers, and find its own way forward.
The incoming administration is much better prepared than they were in 2016. They are even seeking to undertake some “creative” solutions to quickly get their people in place (use “recess” appointments to dodge delays in Senate confirmations) and hasten the implementation of their agenda (replacing career staff). Speculation on possible nominees for Secretary of Education include several who would definitely shake the rafters.
On the other hand, the Trump team has not signed the agreements required to facilitate the transition and obtain necessary clearances. This could slow them down.
With a shift in the party controlling the White House, there could be some changes to federal regulations. Institutions are responsible for compliance with federal regulations. Changes to regulations typically require revisions through the statutorily directed rulemaking process. However, as discussed below, a Congress aligned with the White House priorities may be able to overrule new federal regulations. Additionally, the courts can weigh in to interpret statutory authority and vacate regulations.
Federal regulations are developed by administrative agencies (i.e., U.S. Department of Education, U.S. Department of Justice, etc.) to implement statutes. Regulations have the same legal effect as statutes.
Federal regulations, such as those developed by the U.S. Department of Education (the Department) must follow the rulemaking process directed by the Federal Statute – the Administrative Procedure Act (APA), to ensure public notice and comment. Generally speaking, to change regulations, currently effective regulations and any regulations that are released as final must go through another rulemaking process to amend or eliminate the regulation. Typically, that process takes the Department 18-24 months from the notice of rulemaking to the final effective rule.
The Trump administration has no responsibility to continue the rulemaking process for any issues that were negotiated by a rulemaking committee (i.e., Winter 2024 rulemaking issues) but not released as final by the end of the Biden administration.
The Congressional Review Act (CRA) is a federal law that acts as a deregulation shortcut allowing Congress to overturn recently finalized federal regulations. In a nutshell, this federal law allows Congress, by a simple majority vote of both chambers, the ability to overturn new federal regulations within 60 legislative days of when they were issued. Once a rule is overturned, the CRA prohibits the reissuing of a new rule that is substantially the same rule that was overturned. Rules released by the Biden administration post approximately August 1, meeting the 60 legislative days, could be considered ripe for repeal. This is of interest related to distance education regulations as there is the possibility that the regulations, if issued as final before the Biden administration leaves office, could be subject to the CRA.
Over the last few decades, many regulations have been challenged in court with regulations vacated or the implementation directed by court decisions. Regulations that are legally challenged have sometimes been subject to a court order to temporarily suspend enforcement pending a final court opinion. Recent regulations have been challenged with claims of lack of statutory authority, failure to follow the APA, and constitutional arguments. The court opinion is considered case law with the same force and effect of law as codified statutes and regulations.
Given the history of the first Trump administration, executive orders may be used as an option to deregulate. An executive order could direct agencies to delay and review all new regulations to consider whether to revise or rescind through a new rulemaking. Executive orders can be overturned by legislative action of Congress. The Supreme Court can overturn an executive order if the order conflicts with the U.S. Constitution.
Occasionally, guidance, which has no independent legal effect or force of law, is released by the administrative agency to provide the agency’s view of the statutes and regulations.
Guidance, often called a Dear Colleague Letter (DCL), is to be written in plain language and only intended to clarify existing requirements in statute and regulation. Guidance is developed and withdrawn by the agency in a relatively informal manner and is not required to follow the APA that ensures public notice and input. The Biden administration may issue guidance before leaving office. The next administration has no legal obligation to maintain the guidance and could choose to withdraw the guidance.
During the winter of 2024, the Department of Education engaged in negotiated rulemaking. After soliciting public comment in 2023, the Department decided to negotiate rules for accreditation, distance education, attendance, reciprocity, state authorization, and Return to Title IV (including inclusive access), among other topics. After negotiations failed to reach consensus, except for the TRIO issue, the Department released proposed distance education regulations for public comment earlier this summer. The proposed regulations included:
After the release of the NPRM and proposed regulations, the Department entered a 30-day public comment period. After the public comment period, the Department is required to respond to all public comments. The draft final regulations are then per Executive Order 12866 submitted to the Office of Management and Budget (OMB) for an Office of Information and Regulatory Affairs (OIRA) Review. At that point, the OIRA Review includes a required set of EO 12866 meetings to give the public one last opportunity to weigh in on the regulations. Once the draft final regulations complete the EO 12866 process, OIRA may provide guidance to the agency to revise the regulatory package prior to the Department releasing the regulations as final. If the Department releases the final regulations by November 1st, they can go into effect on July 1st of the following year. In the case of the distance education NPRM, the Department did not meet the November 1st deadline.
The Department could still move forward with the OMB/OIRA review and release the distance education related and TRIO regulations as final prior to the January inauguration. However, because the regulations would be finalized and released so close to the next Congressional term, they would be subject to the Congressional Review Act. Should Congress and the new Trump administration choose, they could strike down those regulations and the Department would be unable to bring them forward again. Because of this, it is highly unlikely that the Department will move forward with the distance education regulations, and they are, most likely, dead.
As for state authorization, accreditation, and inclusive access, these regulations are most certainly dead. The Department does not have time to release an NPRM and engage in the public comment and OMB/OIRA 12866 process. And because the incoming Republican administration is antagonistic towards anything that would limit reciprocity and inclusive access, it is highly unlikely that a Republican Department of Education would move these regulations forward.
The recent WCET Frontiers post, Meeting the Looming Web Accessibility Regulations: The Time to Start Was Yesterday provided nuance and direction for compliance with new U.S. Department of Justice regulations released in April 2024, that apply to all “state and local governments to make their websites and mobile applications accessible for people with disabilities.” These regulations affecting public institutions became effective in June 2024 with compliance dates in 2026 and 2027 depending on the size of the jurisdiction for which the public entity serves.
The legal authority to develop web accessibility regulations comes from the federal law, Americans with Disabilities Act (ADA), signed into law in 1990 by President George H.W. Bush. Title II of the ADA addresses state and local government entities. Part A protects disabled individuals from discrimination. New regulations revise the implementation of this Federal law by adding specific requirements for web accessibility to protect disabled individuals to ensure that web content is equally available.
It is unclear if the Trump administration will attempt to delay or revise these regulations. These regulations have been final and effective since June 2024. Given the subject matter of this regulation, one must consider that any action by the administration would likely be addressed by judicial or legislative interventions. Additionally, public institutions must be aware of the possibility of private lawsuits if they are not compliant by the appropriate date given the size of the jurisdiction they serve, if the rules are not subject to a delay.
The Higher Education Act forbids institutions from paying contracted student recruiting services a fee per student that they attract. In 2011, the Department issued guidance allowing for a “bundled services exception.” Incentive compensation” was allowed in the cases where recruiting was included with other services, such as online program development and marketing. This led to the growth of the Online Program Management (OPM) industry and worries about abuse of this exemption.
In February 2023, the Department seemingly tried to address this issue by expanding the requirements for institutions using “Third-Party Servicers.” The expansion of this narrow category aimed at financial aid processing services to, seemingly, covering every institutional contract with an external entity caused an uproar. The Department paused implementation of the guidance and promised a replacement and/or holding negotiated rulemaking on the issue. The Department officially rescinded the 2023 Third Party Servicer guidance effective November 18, 2024. Despite the March 2023 Department announcement of Intent to Establish a Negotiated Rulemaking to include the third-party servicer issue, that issue has not taken any further steps in the rulemaking process.
There is a small possibility that the Department could update or rescind the 2011 guidance that created the exception. This has been expected for years. Even if they do, it might be amended again quickly by the incoming group.
It is not wrong for you to feel a sense of whiplash as the rules (whether regulation or guidance) change back-and-forth as the party in power switches. Congress has been ineffectual in passing laws for years and the action has fallen to the federal agencies.
Much of what we have discussed over the last few years either will not happen or may go away. In 2016, we made the mistake of thinking that a Trump Administration might mean he would deregulate everything. That was not the case! Although, some of the names suggested as Secretary of Education, if selected, may be so caught up in culture wars that deregulating their pet issues or simply running the place might fall by the wayside.
What will happen? We will continue monitoring. Watch for a future Frontiers post.
Cheryl Dowd, Russ Poulin, and Van Davis
