Higher Ed News: 116th Congress, Negotiated Rulemaking Process and Education Department Reorganization

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116th Congress Neg Reg Negotiated Rulemaking Process and Education Department Reorganization

Higher Ed News: 116th Congress, Negotiated Rulemaking Process and Education Department Reorganization. Since seating the 116th Congress three weeks ago, there has been a lot going on in Washington. Tom Netting of CSPEN, the Central States Private Education Network, which represents schools nationwide to public policymakers in Washington and throughout the nation, joins us to give an update on what we can expect out of the 116th Congress with respect to higher education, the 2019 Negotiated Rulemaking process, and the Education Department reorganization.

The 116th Congress

Given a split Congress, we can expect some changes in higher ed, and perhaps this may be what is needed to move the Higher Education Act and other policies through.

Changing Players

The big news coming out of the Senate is that Sen. Lamar Alexander (R-Tenn) has announced this will be his last two years in Congress. He has led the Senate Health, Education, Labor, and Pensions Committee since 2015, and he, along with Sen. Patti Murray (D-WA), ranking member of the Democratic party, have done a considerable amount of work in a bipartisan fashion.

The new chairman of the House Education and Labor Committee is Congressman Bobby Scott (D-VA). Rep. Scott has served in multiple roles on the committee, including chairman and ranking member, and is very familiar with the process and leadership of the committee. Rep. Virginia Foxx (R-NC), the former committee chair, will be the ranking member.

The good news is that similar to Alexander and Murray in the Senate, Scott, and Fox have a good rapport and have worked in a bipartisan fashion, and we have four individuals who, despite their differences, can work together and have the opportunity to push things across the finish line.

Higher Education Act

Reauthorizing the Higher Education Act is one of those things which needs pushing. Reauthorization is should happen every 5 to 6 years, but has been delayed the last three times – it has been 11 years since the last reauthorization, and the previous two were in 2008 and 1998, 10 years apart.

Getting this to the finish line is critical. In the last 11 years, there have been a number of changes that require legislative action. For example, students need revisions to help support them in their access to higher education; institutions need help in bringing innovation and other aspects forward; and Congress and the Department and the community need the opportunity to bring necessary reforms to the table.

The HEA is one of the few remaining education issues on which Sen. Alexander has not put his stamp. Given he’s a former Secretary of Education and former chancellor of the University of Tennessee, this is something very near and dear to his heart, and we expect this is high on his list of things to accomplish.

Negotiated RuleMaking Process

The first session of the 2019 Negotiated Rulemaking process began last week with the Accreditation and Innovation (full) committee in session, and the three subcommittees met on Friday.

For those who are unfamiliar with the Neg Reg process as it is sometimes called, there is a full committee comprised of 16 primary and 16 alternate members representing the various constituencies in higher education, and three subcommittees focusing on faith-based entities, TEACH grants, and distance learning. A significant amount of the work will be done at the subcommittee level, who will report out to the full committee for approval / disapproval of the recommendations.

There are two significant differences between this and previous Neg Reg processes. First, the Department is using what they are calling consensus buckets in an attempt to gain consensus around individual issues or proposals so that if one set does contain full consensus, they can move that forward as a consensus proposal even if others do not.

This is a distinct difference from the all or nothing proposals of the past negotiated rulemaking processes, and gives hope that negotiators might have a shot at completing a very ambitious agenda, or at least some pieces of it. The alternative is that for those areas which are not completed to consensus, the Department will issue its guidance which may be in opposition to many constituencies’ desires.

The other difference is who is permitted to speak at committee meetings. The Department attempted to limit discussion to the primary negotiator and allow the alternate only to speak if the primary was not in attendance, (in the past you had both the primary and alternate negotiator being able to speak as they saw fit), but there was pushback from the committee. Ultimately, the protocol was modified to provide for limited circumstances in which both the primary and the alternate would speak. This seemed to work out well in the full committee deliberations.

Committee Meetings Report

The full committee got off to a good (but late because of weather) start with discussions about accreditation and the agenda. There was some drama at the beginning – seating the state higher education executive officers (SHEEAs) and state attorneys general in the groups. It was ultimately decided that the SHEEAs would be seated on the full committee and states attorneys general will be seated as primary negotiator at a distance education and educational innovation subcommittee.

Some of the biggest issues that negotiators will be examining are credit hour and substantive interaction definitions and how those impact competency-based education and federal financial aid. Much of this work will be done at the subcommittee level, and it will be interesting to see how this plays out with the consensus buckets.


The current schedule is that the full committee will meet the weeks of February 10 and March 25, and subcommittees will meet in the week prior to the full committee. The formal Neg Reg process will end on March 28 if all things remain on schedule, but that is predicated on getting all the work done that is necessary, as well as achieving consensus on one or more of the various consensus buckets.

We can expect to see interim reports coming out from CSPEN and the various news agencies that report on higher ed news following each of the sessions.

Final Report Out

Expect to see summaries for those items for which consensus was reached in early April, but for those areas that did not reach consensus, we will be left to speculate on where the conversations of the negotiations left off, where the department positioning was, and what we might anticipate it to be as the process goes forward.

As is the case with previous negotiated rulemaking, the Department will have the months of April and May (and probably into June) to develop its notice of proposed rulemaking, and probably will publish it in the summer for comments. The final regulations should be published on or about November 1 of this year in order for them to become effective by July 1, 2020.

Giving Input to the Process

If someone wishes to give input, they can find the list of participants at the Department of Education‘s website. Also, if you would like to access the live YouTube and streaming videos of the negotiations as they take place, here is the link.

Education Department Reorganization

The Department of Education recently announced a reorganization, much of which is linked to the Department’s notion of next-generation FSA (federal student financial aid). The Department is looking to first reform the delivery mechanism for federal student financial aid and the backend.

They have started building the new system infrastructure geared towards getting better and more accessible information to the individual borrowers and students. They intend to use platforms that utilize mobile devices, as well as the web and the Internet, to bring more information to the consumer in real-time on everything from their past applications to their specific loan data.

The next step is how to deal with the responsibilities of the Department as it relates to the delivery of FSA. This includes the servicers and the collection activities on the far back end. There have been a couple of starts and stops with this that have resulted in the courts being involved to determine who should be involved and how they should be involved, but hopefully, this will lead to a better way to do FSA.

As part of the reorg, they have filled 24+ vacancies. These are high- to mid-level individuals across the entire spectrum of higher education, including elementary, secondary, office of civil rights, and others. Hopefully, filling these vacancies will allow the Department to provide more guidance and information in areas such as Borrower Defense to Repayment Regulations and Gainful Employment.

This reorg is not without some concern. There is downsizing going on at the same time, and many are concerned this is a signal to those that believe that the Department should be abolished. Additionally, there are those who view this as yet another way support both the Trump and the Republican agenda by putting people in place who favor some communities to the detriment of others, e.g. for-profit over community colleges or traditional higher education institutions.

Government Shutdown

The current Washington shutdown has not affected the Department of Education too much as it was part of the Labor HHS appropriations bill previously passed by the Senate. However, there are a number of other agencies that affect the Department, e.g., the Federal Register – until guidance is published in the Federal Register, it cannot take effect. Thus, the Department may have completed the BDR guidance, but it cannot go into effect.


Cybersecurity is coming up on people’s radar again, not that it should have ever left. The issue was raised at the FSA conference in two presentations by the Department of Ed personnel, who stressed that this area is ever-changing. Institutional leadership must be mindful of cybersecurity as it relates to the protection of personal data and compliance. The Department is saying that they can help, so reach out to them.

See our other publications on the Neg Reg updates and how they influence your institution. 

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