Washington Watch: ED tees up key regulatory efforts

Photo: AACC/Matthew Dembicki

President Obama’s administration was notable for its ambitious postsecondary regulatory activity. This included new policy approaches that were not necessarily prescribed by statute. The Trump administration has signaled both formally and informally that it, too, is preparing to move aggressively into creating new regulatory policy, though clearly with different priorities. Both administrations’ regulatory initiatives are linked to a lack of congressional productivity in higher education, particularly in being unable to reauthorize the Higher Education Act (HEA). In any case, community colleges have much at stake in a number of upcoming rulemakings — basically as much as if Congress had addressed the same issues, since regulations have the force of law.

Gainful employment

Press reports indicate that the U.S. Education Department (ED) will soon publish new gainful employment regulations (GE). These controversial rules, issued initially by Obama in 2009, have sent shivers down the spines of community college officials, primarily for their extensive reporting requirements. The regulations were focused fundamentally on weeding out from federal aid eligibility poorly performing programs at for-profit institutions, and community colleges were largely not impacted. But the cost of implementation was tremendous, though impossible to quantify across the sector.

It is extremely likely that upcoming GE regulations will reflect those advanced by ED in negotiated rulemaking sessions last year. (Community colleges were represented in these sessions.) There, Trump proposed eliminating all sanctions associated with GE, while extending the GE reporting/disclosure framework to all undergraduate programs, not just the more limited universe defined in statute. (For community colleges, this essentially included all Title IV-eligible certificate programs.)

This approach’s basic thrust (acknowledging that the primary, if not the sole, goal of most college students is to secure better jobs) is one with which the American Association of Community Colleges (AACC) concurs. But eliminating any role in policing student over-borrowing, as in the previous GE regulations, is worrisome. AACC is awaiting the formal “notice of proposed rulemaking” (NPRM) and plans to file detailed comments on the rules.

Borrower defense to repayment

In late July, ED proposed new rules on borrower defense to repayment regulations, outlining the conditions under which student loan borrowers are released from repayment obligations because of unacceptably poor institutional performance and related factors. In all likelihood, this regulation will directly affect very few community colleges, but it is still important because of its implications for the for-profit industry. AACC expects to join with other higher education associations in filing a formal response.

Accreditation et al

The department also has noted its intent to address a variety of regulatory issues that, generally speaking, impact the more ”academic” side of institutions, though with direct links to the Title IV student aid programs.  This will first involve public hearings — where AACC will present its views on the topics — followed by negotiated rulemaking sessions.

ED’s goal in this process is to update higher education regulatory policy and promote innovation. This would be done, in part, through eliminating some of the conditions and constraints on accreditors that serve as “gatekeepers” for Title IV. Possible changes to the regulatory definition of a credit hour, put into place by Obama, would also have tremendous implications for higher education, as would potential alterations to online education policies. As leaders in developing competency-based education (CBE), community colleges clearly have a lot at stake in potential changes there as well. In fact, a “negreg” subcommittee will be devoted to CBE.

It’s important to note that a House committee-reported bill to reauthorize HEA (H.R. 4508, the PROSPER Act) addresses all of these topics in one fashion or another, and an enacted HEA bill, whenever that might occur, could require ED to re-regulate in these areas. But ED is not waiting for that to happen.

AACC plans to be intimately involved in this key regulatory process, so it’s critical for member colleges to provide input on these areas.

Catch up on previous Washington Watch articles.

About the Author

David Baime
is senior vice president for government relations and policy analysis at the American Association of Community Colleges.