Washington Update: NPRM, FAFSA, Title IX, NC-SARA:

Changing Higher Ed Podcast 206 with host Dr. Drumm McNaughton and guest Tom Netting

Table of Contents

Changing Higher Podcast Podcast 206- Washington Update- NPRM, FAFSA,NC-SARA 1,500+ Pages of Title IX with guest Tom Netting
Changing Higher Ed Podcast | Drumm McNaughton | The Change Leader

7 May · Episode 206

Washington Update: NPRM, FAFSA, Title IX, NC-SARA

41 Min · By The Change Leader, Inc.

In this Washington Update, you'll hear an outline of the large Title IX proposed updates, the state of FAFSA and impacts on enrollment, and more...


With over 1,500 pages of new Title IX regulations, ongoing FAFSA simplification challenges, and a flurry of proposed rules on student debt relief, gainful employment, and institutional accountability, higher education leaders are facing a perfect storm of regulatory change. Navigating this complex landscape requires a deep understanding of the issues, strategic foresight, and agility.

In this Washington Update, Dr. Drumm McNaughton engages in a frank and wide-ranging discussion with Tom Netting, President of TEN Government Strategies and a veteran advocate for private colleges and universities. With over three decades of experience working with Congress, federal agencies, and state governments, Netting brings a wealth of insights to bear on these pressing challenges.

From the nuances of the new Title IX rulebook to the downstream effects of FAFSA glitches on fall enrollment, Netting provides a clear-eyed assessment of the risks and opportunities facing institutions. He also previews upcoming regulatory battles over gainful employment standards, state authorization for online programs, and the use of student data for program evaluation.


Is FAFSA Fixed? The Enrollment Fallout of a Rocky Rollout

One of the most pressing issues facing colleges and universities this spring has been the tumultuous rollout of FAFSA simplification. While the streamlined application promised to ease the financial aid process for students and families, technical glitches and processing delays left many in limbo, unable to access accurate aid offers as they weighed enrollment decisions.

According to Netting, the worst of the FAFSA crisis appears to be over. “I believe that the Department has worked through all of the glitches.” However, the fallout for fall enrollment remains uncertain.

“Unfortunately, you’ve got to believe as well…that some people might have become discouraged and walked away,” Netting cautions. “We may see, quite honestly…a potential shift from on-campus to online environments a little bit more as a result of this.”

The FAFSA fiasco has also drawn sharp criticism from Congress. On Tuesday, May 7th, Education Secretary Miguel Cardona is scheduled to testify before the House Education and Workforce Committee in a hearing titled “Examining the Education Department’s Policies, Priorities, and FY 2023 Financial Audit Failure.” The Senate has launched inquiries of its own.

While Netting believes a thorough postmortem of the FAFSA rollout is necessary, he stresses that the priority now must be supporting students and families in the enrollment process. “The most important thing is, students and their ability to make informed decisions with their aid packages,” he says.


1,500+ Pages of Title IX Regulations: A Pendulum Swing

Topping the list of regulatory changes is the Department of Education’s release of over 1,500 pages of new Title IX regulations. These rules, set to take effect on August 1st, represent a significant shift from the previous administration’s approach, with the pendulum swinging back toward an emphasis on victims’ rights.

Netting breaks down the key changes into two main categories: rollbacks of Trump-era rules and the introduction of new protections.

Title IX Rollbacks

Among the most significant rollbacks are:

1. A broader definition of sexual harassment, from “severe, pervasive and objectively offensive” conduct to the more expansive “unwelcome sex-based conduct.”

2. A requirement that institutions use the “preponderance of evidence” standard in adjudicating Title IX complaints rather than the higher “clear and convincing” threshold favored by the previous administration.

3. The elimination of mandatory live hearings and cross-examination of accusers, which victim advocates argued could be re-traumatizing.

New Title IX Protections

On the new protections front, the regulations cement nondiscrimination rules for LGBTQ students and add safeguards against retaliation for pregnant students. The Department has also signaled that more Title IX guidance related to athletics is forthcoming later this year.

For college and university leaders, the challenge will be striking the right balance between supporting victims and ensuring fair processes for all involved. As Netting notes, “We’re looking for a balance here…but the eye of the beholder dictates some of where your observations are in that regard.”


Debt Relief in the Crosshairs: The NPRM on Student Loan Assistance

Another major regulatory front is the battle over student debt relief. After multiple lawsuits challenged the Biden administration’s loan forgiveness plan, the Department of Education has published a Notice of Proposed Rulemaking (NPRM) aimed at expanding its authority to cancel and reduce student debt through regulatory action.

“The department published the Student Loan Debt Relief NPRM that is the continuation of the Biden administration’s efforts on student loan debt relief,” Netting explains. “This was taking what they attempted to do with debt cancellation that the Supreme Court laid aside and now taking a different tact and different track through the regulations.”

The NPRM builds on negotiations that began in late 2022 and concluded with draft rules earlier this year. The public comment period on the proposal runs through May 17th, and Netting expects that “a lot of institutions as well as the service providers and others in the community…will avail themselves of the opportunity to do so.”

While the outcome of the rulemaking process remains to be seen, it’s clear that student debt relief will continue to be a major policy flashpoint. For higher education leaders, staying engaged in the debate and assessing the potential impacts on their institutions will be critical.


Gainful Employment and Accountability: Neg Reg on the Horizon

Looking ahead, Netting flags another round of negotiated rulemaking slated for 2023-2024 on “program integrity and institutional accountability.” This broad umbrella covers a range of hot-button issues, from cash management rules for student aid funds to state authorization requirements for online programs.

One particularly contentious area is the future of gainful employment regulations, which tie a program’s eligibility for federal aid to its graduates’ debt-to-earnings ratios. While the previous administration rescinded the Obama-era gainful employment rule, the Biden administration has signaled its intent to reinstate and expand the accountability measures.

Under the draft proposal, gainful employment standards would apply to all postsecondary programs, not just those at for-profit colleges. “The metrics for gainful employment are applied to all institutions,” Netting notes. “And that includes looking at your earnings potential of your students based on three different metrics.”

For university leaders, this means taking a hard look at program outcomes and job market alignment. “I would strongly, strongly encourage institutions to be prepared for, or at least ask questions of their curriculum developers, especially in online and elsewhere, if they’re prepared for when the NPRM comes out,” Netting advises.


Accreditation and Distance Ed: Navigating the Shifting Terrain

Another key area of negotiated rulemaking is accreditation and distance education. Here, the Department has sent mixed signals about its intended direction.

On one hand, officials have insisted they are not seeking to undermine the State Authorization Reciprocity Agreements (NC-SARA) that have eased regulatory burdens for online programs. “The department has said emphatically, they’re not trying to undermine or dismantle state reciprocity agreements,” Netting reports.

On the other hand, some of the proposals floated during the negotiating sessions have raised red flags for distance education providers. These include requiring online instructors to take attendance, eliminating asynchronous learning options in clock-hour programs, and narrowing the representation on NC-SARA oversight boards.

“There’s differences of opinion of what this will do to online education,” Netting acknowledges. “For the most part, if you’re an online provider, you’re worried, and we’ll see what comes out.”

As with the other regulatory issues, the stakes are high for institutions with significant online offerings. Engaging with policymakers and accreditors to shape the final rules will be essential to protecting quality and flexibility in distance education.


Three Key Takeaways for University Presidents and Boards

1. Review and update campus safety protocols and Title IX training. Ensure that all employees, from front-line staff to senior leaders, understand their obligations under the new regulations.

2. Assess program outcomes and job market alignment in light of the forthcoming gainful employment rules. Work with curriculum developers and industry partners to strengthen the value proposition of your offerings.

3. Stay engaged in the rulemaking process and provide feedback on proposed regulations. Join forces with peer institutions and associations to amplify your voice in Washington.


Final Thoughts

Above all, Netting stresses the importance of proactive leadership in navigating the regulatory landscape. “Review these regulations and pay attention to those that are sharing information,” he advises. “It’s going to be vitally important.”

The sheer scope and complexity of the regulatory changes facing higher education can seem daunting. But as Netting’s insights make clear, university leaders who stay informed, engaged, and agile can not only weather the storm but emerge stronger.

By prioritizing student success, program quality, and institutional accountability, colleges and universities can build trust with policymakers and the public. 

Organizations like The Change Leader, with their expertise in higher education strategy, can support institutions in navigating regulatory complexities and developing plans that align with their missions and values.


About Our Podcast Guest

Tom Netting

Having spent all of his professional career devoted to higher education policy oversight and implementation, Tom Netting has an extensive knowledge of the laws and regulations governing all aspects of higher education. His considerable background and experience have afforded him the opportunity to view the development and implementation of federal higher education and workforce development policy in their entirety – including issues related to higher education and workforce development, health care, veteran affairs policies, and the procurement of federal appropriations.


About Our Podcast Host

Dr. Drumm McNaughton is a consultant to higher education institutions in governance, accreditation, strategy, change, and mergers.


Transcript: Changing Higher Ed Podcast 206 with Tom Netting



Drumm McNaughton: Thank you, David. Today, we welcome back one of my favorite guests, Tom Netting, President of 10 Government Strategies. Tom has worked in the public policy arena for over 30 years, advocating before Congress, federal agencies, and state governments on behalf of private institutions of higher education and post secondary education companies.

Tom is a leader in strategic policy development and advocacy, and he joins us today to give us an update on the recent release from the Education Department of the new Title IX guidance that will go into effect on August 1st, that’s less than three months away. And he’ll be detailing a number of the things that people need to be looking at when it comes to the new Title IX regs.

Tom, welcome back to the show

Tom Netting: Drumm, it’s a pleasure to be back with you.

Drumm McNaughton: and always a pleasure to have you, my friend.

Discussion on Current Events in Washington

Drumm McNaughton: There is so much going on in Washington right now. But before we get into that, how have you been doing?

Tom Netting: Been doing well.

Tom Netting’s Update on FAFSA Simplification

Tom Netting: Busy times, lots of information to both try and assimilate and then present back out. Between everything that’s been happening with the FAFSA simplification and the rollout of processing of student financial aid for students and the decision making policies that just took place earlier this week, that has certainly been timely and topical on all institutions and specifically financial aid individuals minds, but also all the families as they look to try to work to make their decisions.

A lot of new information, as I’m assuming we’ll talk about here in just a few minutes, on regulations in the form of the new Title IX regs, as well as other guidance and NPRMs on student loan debt relief, and also on issues related to gainful employment and the financial value transparency regs.

Drumm McNaughton: Those are all huge topics for our colleagues. Before we get into that though, 30 seconds, FAFSA, is it getting fixed?

Is FAFSA Fixed?

Tom Netting: FAFSA is fixed. I’m happy to report that, and I believe that the Department has worked through all of the glitches. It’s never easy when you roll out an entirely new program, but they have worked diligently in order to get to the point now where they have stipulated and stated publicly that all of the reprocessing has been completed.

So we’re now at a point where I think we can say yes, FAFSA has moved from the errors and some of the concerns to a position where I think everybody can move forward.

Drumm McNaughton: Thank you that that’s good information to know. People are very concerned because of the enrollment cliff coming up, the lack of ability for them to make financial aid decisions. Having this fixed and extending the enrollment dates out, I think, is going to help and I am cautiously optimistic that we will not see a drop off in enrollment because of this.

Tom Netting: We will see, because again, you know, the extension certainly helps with the opportunity and the decision-making process and the like. Unfortunately, you’ve got to believe as well, Drumm, that some people might have become discouraged and walked away. We hope that those numbers are not as significant as some have purported or suggested it may be, but we may see, quite honestly, and you and I have talked about this before, a potential shift from on-campus to online environments a little bit more as a result of this. We’ve seen some of that as a result of COVID, where hybrid learning as well as straight bricks and mortar, has become more in vogue, if you will, my term. But yeah, it remains to be seen. The good news is, you know, regardless of the questions of how we got to this point, the fact that we seem to have gotten over the major threshold of getting the information correct, which is very important, and then disseminated out so that both the institutions can package and all of the students and potentially students and parents can make informed decisions about where they want to pursue their higher education.

Drumm McNaughton: Oh, that’s great. Well, everybody’s keeping their fingers crossed on this one for sure.

Tom Netting: I think we’re there. It’s a shame that, you know, it did take this long, but again, this system in this program is not easy. It is a large program and I know that people and colleagues that I know over at the Department have been working vigilantly, and that is an understatement, to correct what was wrong.

Obviously, there are and another whole potential conversation for the future is where it all went wrong. Certainly Secretary Cardona is going to be called up to talk about that this coming Wednesday in a hearing in front of the House Education and the Workforce Committee. The Senate has already inquired as well.

So, we do need to do a postmortem on how we got here. But the most important thing is, let’s be honest, students and their ability to make informed decisions with their aid packages, and I think we’re there.

Drumm McNaughton: Well, that’s good. You know, the FAFSA was supposed to simplify the application, but nothing about this has been simple,

Title IX Regulation Updates Overview

Tom Netting: Well, you know what? It’s interesting. Yes, the number of questions has certainly been reduced, and that was one of the things that Senator Alexander was very much pressing for. But, there is a lot of information that needs to be gleaned in order to make effective decisions, and to make the operating systems take all of that and cross-reference all of that is no easy undertaking.

1500 Pages of Title IX Regulation Updates

Drumm McNaughton: Especially when you’re using very, very old systems. So, let’s get on to the main topic for today. The Title IV rule. This just came out in conversations that you and I have had. It’s over 1300 pages of information.

Tom Netting: 13-1500, but who’s counting? it’s the Title IX regulations, not Title IV..

Drumm McNaughton: I’m, sorry

Tom Netting: No worries. Just just making sure, well, we’re always talking about Title IV, Drumm, so it’s a little bit of a deviation to talk about Title IX.

Drumm McNaughton: I understand. So the way that I look at it, it’s basically breaking it down into two areas. There is some rolling back of the previous regulations that came out of the Trump and Devos Department and then we’ve got some new stuff that’s gotten thrown in there. Let’s start off with the old stuff and how it’s rolling back or changing the regulations that got put in under the last administration.

Implications of the New Title IX RegulationsTitle IX Regulations: Old vs. New Definitions

Tom Netting: Sure, a couple of brief reminders. You have the Cleary Act and you have Title IX. Title IX includes everything from athletics, which we’ll talk a little bit about, and women in athletics as well as other things, but the Cleary Act talks about issues related to campus safety. And, God rest Miss Miss Cleary, and the reason that the act was brought up in her name is because it talks about sexual offenses, and you had the Violence Against Women Act as well.

So you put all these together, and the focus on this particular new set of regulations, revised, addended, amended, really speaks to, once again, assault, sexual assault, all of the various different concerns with regards to protections of victims’ rights and the like. The things that are kind of throwbacks, everything old is new again, as you said, have some significant changes to it.

The notion of what sexual harassment is, from a behavioral standpoint, has been looked at, and again, definitions changed from severe, pervasive, and objectively offensive actions to unwelcome sex-based conduct. A much broader definition, and therefore, again, something that in practice I think we’re going to need to see how this develops in the actual institutional settings, but they, again, overarching one of the comments I would make in general is that we’ve seen the pendulum swing time and time again from protection, more heavily weighted on victims rights, certainly under the Obama administration.

A swing of the pendulum to also try and take into consideration the rights of the accused under the Trump administration. And now a swing back to a broader depth and breadth, once again, on the victim’s right side. We’re looking for a balance here, Drumm, I think that everybody is trying to work towards that balance, but you know, the eye of the beholder dictates some of where your observations are in that regard. But with regard to some of the old throwbacks, as I said, unwelcome sex-based conduct is certainly a broader definition than severe, pervasive, and objectively offensive. So that is a tilt, once again, towards the victim or the accuser issue.

Similarly with regard to the basis of determination on whether or not the action is something that needs to be adjudicated through the hearing process. No longer live hearings. We’ll talk about that in a minute. But still, investigation and adjudication require the institutions to use the preponderance of the evidence standard, whether the accused is a student or employee, for violating the policies, unless there is clear and convincing evidence otherwise, standard higher bar, that can be utilized. These are things that become very important in the process of the investigation, and the process is one of the areas where, once again, significant changes have been made.

I just alluded to the fact that under the previous administration, there had to be a live hearing and the opportunity for representatives of the accused to cross-examine the accuser.And that was again perceived by many as a triggering event. You could potentially be putting a victim through questions that trigger a potential victimization once again.

So, they have isolated and insulated some of those interactions. You still have the opportunity for the dialogue to take place. But live hearings are no longer mandated the ways in which the assimilation and processing of the information, for both parties, and in the interest of getting all of the information out from both sides, is still there, but it doesn’t require some of this direct interaction that had been concerned in the past,

Drumm McNaughton: Well, it’s interesting to me that all of these first three things, the definition, the preponderance of the evidence versus the clear and convincing standard, and removing the live hearing and cross-examination requirements, they all kind of go hand in glove with each other.

It’s interesting to me that instead of using clear and convincing evidence, which is the bar that you have to meet for a criminal. For criminal. Now it’s moving; it’s dropping back down to the Obama standard of the preponderance of evidence, which is a civil lawsuit evidentiary requirement.

Tom Netting: And it’s almost the difference between, as you said, the higher bar, clear and convincing, leaves little room for interpretation. The preponderance of the evidence literally is 50 plus one, as opposed to the higher level, is what I’ve heard some people, not so jokingly or affectionately, refer to it.

Or if your gut is telling you that there is a strong likelihood, that’s where the preponderance of the evidence, and obviously, I’m moving away from, as you articulated so well, the legal definitions to the reality of how some of this is interpreted boots on the ground side of, of this process.

Drumm McNaughton: And with the criminal complaint to be convicted either by judge, you know, if it’s a judge saying, it’s the judge saying, “Yes. This happened.”, or if you have a jury, you’ve got to have 12 people who all say, “yes”. If you have 11 and one says, “No, I’m not so sure,” you have a hung jury, and you don’t get anything done. So that to me, that’s interesting because, as we talked about before coming on the air, and you mentioned earlier, it’s taking into account more of the victim’s rights than it is the accused, which it is a balance. It has to be a balance. And we, we all know that right now our country is having a difficult time finding balance.

Tom Netting: That is also very correct. Well, and it puts a lot of pressure, quite honestly, Drumm, back on the institution and their process, the way in which they structure their process, the level of competency of their investigations, and trying to garner and glean all of the information possible, to go through this process. That’s where I think that again, schools are going to have to pay a great deal of attention to what their plans look like.

Not that they haven’t in the past, and I’m not suggesting in the least that institutions haven’t focused highly on this in the past, but kind of segwaying into some of the other facets of this, the level now of responsibility of the institution to not only have a Title IX coordinator, which was required in the past, but the level of education that needs to be brought forward to the institution, and not just the Title IX coordinator, but permeate and being pervasive throughout the institution, literally, and I don’t mean this tongue in cheek, although it’s going to sound like it, every front ready from the janitor to the faculty and the staff to the administration in the administration building is going to need to have at least some base level training on Title IX and the responsibilities that regs go so far as to say, “and the intake of new employees to your institution have to be informed and educated on Title IX requirements.”

Inherent in that is the reality that now basically every member of your institution is now part of the culture and the responsibility to be mindful of what Title IX includes. Sexual harassment, bullying, all of the other different aspects of the regulations, and bring those forward if they ever witness them.

That’s a cultural shift, and that is certainly, again, raising the tide of the level of awareness is believed that will then be brought forward in helping to protect individuals, some of whom, let’s be honest. and we’ve talked about this before; some of where the individuals may be very apprehensive to even come forward

Drumm McNaughton:  I’ve seen that personally with students coming up to me and saying, yes, they were sexually assaulted, etc. And they didn’t want to come forward for multiple reasons, and under the old regulations, I would not have been bound as a consultant to the institution, I would not have been bound to say you have to do something. I could have just gone Oh, gee, that’s too bad. That’s not who I am. Now, I am bound by these regulations once they go into effect. I am bound by these to say something.

Role of Institutions Under New Title IX Regulations

Tom Netting: Precisely, And to your point of once they go into effect, an important thing to keep in mind, you talked about in reference to Title IV before, the Title IV regulations, as we all know, and we’ve talked about ad nauseam on some of the other regs as they’ve come forward, and we’ll talk a little bit about some of the regs that are pending right now at the end of this, I believe, but because this is not a Title IV regulations under Title IX of the Higher Education Act, it’s not bound by the master calendar, the process that normally means that you have to promote a final regulation on or before November 1st of the preceding year for it to go into effect July 1 of the next year.

Because this is Title IX, not Title IV, the window for implementation is not bound by that section of the law. Therefore, the timeline for implementation of this new set of regulations, all of those 1,555 or 1,395 pages, preamble and everything included, is due to go into effect August 1st of this year, literally three months from now.

So as you can imagine, while we’re going through our first take, on regulations two weeks old, a lot of time and a lot of continued discussion and dialogue are going to be necessary, I think, to make sure that the schools are doing the best they can to implement this by August 1st.

Drumm McNaughton: Now that’s, that is very, very fast. The first thing that comes to mind is any Title IX consultant out there is going to be making a lot of money between now and then to get this stuff out to the people who need it.

Tom Netting: I think there will be a lot of webinars coming forward from law firms and other entities and some of the folks that have focused on this for many, many, many years. A couple of the other things, just in terms of the key issues, I think, for institutions. Clear geography, once again, has always been an important issue. On-campus versus off-campus, and where the settings are that are the responsibility of the institution. That has been broadened. So there are more off campus issues of potential allegations of misconduct that result in a quote, unquote, hostile campus environment. That’s another new definition we’ve seen brought forward in this process.

It was touched on in the past, but again, the pendulum is swung more towards inclusion of external areas, whereas under the Trump administration that clear geography had been constrained a little bit more. Again, what you’re thinking about here and let’s be honest, the most reasonable and rational area that a lot of the focus on this is in off campus housing and also in and I don’t mean this to demean or accuse any Sorority or Fraternity, but that’s another one of the key areas where they’re trying to protect.

Drumm McNaughton: Which makes perfect sense. If something happens off campus in, you know, the Greek houses, whatever, or wherever, it doesn’t matter. And then you have the same two people in a class together, something that happens off campus is going to be brought on campus and it creates that hostile environment, which is not conducive to learning, and that’s why students are there.

Tom Netting: And can be such a triggering event. And again, you know, one of the things that you see, regardless of administration, is there is a very clear desire to protect victims from repeat victimization. Whether that’s through the process of investigation, as we’ve talked about previously, and again, there’s a balancing act there, but certainly, some of the areas, Drumm, where there have been discussions, multiple times before, is what to do when both individuals still have to potentially pursue their education together on the same campus. That gets even more challenging depending on the size of the campus and how you deal with some of those issues.

So again, they’re trying to look at all facets of this as they look to implement regulations.

Drumm McNaughton: Yeah, this, this all makes so much sense. I, frankly, I was not a big fan of the previous revisions. I like these better, but that’s just my own personal opinion.

Moving on. I’ve got some new stuff that’s coming out with this, and some of that stuff is a bit on the controversial side, depending on your political leanings.

Tom Netting: And you, you kind of segued into that one. Talk about teeing it up for me. One of the new big areas in the regulations is the prevention of any form of retaliation and the protection of individuals and employees as the process goes forward with the investigation, adjudication, and resolution. So a great deal more has been put in to the thought process in these regulations and barriers and walls put up on protections from retaliation, and the implications of what can happen if there are forms of retaliation that are attempted.

This again kind of comes back into a challenge, I think, for institutions, though, because protecting both sides of this, victim and accused, through the investigation process is important, and then afterward.

What is also very interesting, and I probably should have highlighted this sooner, is the fact that the regulations are also more directed at immediate or more timely investigation and review. They don’t want this to languish or linger on the campus or as part of the process.

They’re looking for the investigation to be triggered, pardon the use of that term in this context, or brought forward as expeditiously as possible in order to not let some of these things linger. And then again, let the anxiety and or other forms of human concern that would go with it.

Drumm McNaughton: Have they actually specified a number of days that this has to be at least initiated, if not concluded?

Tom Netting: My synapses of my brain are not telling me that they did. I think that they left some latitude there. But I’ll go back and check because they do set up parameters, but I don’t think that it was specific to 14 days, 21 days, 31 days or other periods of time and framework, like we see in other facets of the regulations. But let me go back and check on that, cause I’m not, not totally sure of that. Like I said, you know, we’re peeling back the levels of this big onion one at a time. So

Drumm McNaughton: You know, Tom, I’ve always known you’ve had a great memory. You know, you look at a page and, you know, five seconds later, you’ve got everything memorized. I’m surprised. Ha,

Tom Netting: 1,555 pages doesn’t come easily, my friend.

Drumm McNaughton: Oh, I know it doesn’t. The other one that I think is very, very controversial is going to be it’s cementing the legal protection for the LGBTQ. Easy for me to say. They also include pregnant students in there.

Tom Netting: Yeah, the pregnant students is new L-B-G-T-Q, AI et al.. So as not to offend anybody, and I apologize like you, if we left out any part of the acronym, it’s certainly not intentional. They have, as you said, kind of gone back to cementing and making more direct references in that regard.

Pregnant students and protection for pregnant students in terms of, once again, not only retaliation but also bullying and other forms of abuse are part of the additions now that are new to the process. I think that those again are things that we’re gonna need to see, Drumm, some more guidance comes out on, you know, I know what pregnancy is, but how that is articulated as part of the protections from harassment and the other aspects of this. I certainly can understand, you know, that those are things that, once again, on high school as well as college campuses that can be problematic for individuals and the like. So we definitely want to protect against that.

I will also take this opportunity, under LBGTQ AI plus et al., to talk about the fact that the department makes it very clear that there is still more guidance under Title IX to come on the athletics side of the Title IX equation. That’s one of the reasons I alluded to the fact that Title IX and Clery, along with the Violence Against Women Act, are all kind of, they coalesce under kind of the same umbrella, but they are rather distinct and definitive pieces of a collective whole. And so therefore the guidance comes out in different ways and for different reasons, so we’re waiting and the administration said very clearly that they are still looking at the athletic side of Title IX and we’ll be providing more guidance in the future. Um, you know, I anticipate that being later in the year

Drumm McNaughton: Yeah, I fully expect it will come out maybe later in the year, maybe after the first of the year. Who knows?

Upcoming Educational Policy Changes

Tom Netting: Could be. Again, going back to the start of today’s presentation, it’s not like the Department of Education hasn’t had a lot on its plate, with FAFSA simplification and all of that rollout, other new regs and other things that they have been working on, all of the debt relief that’s been provided now, 161 billion and counting. So they’ve been working on a lot of different things.

Drumm McNaughton: Yeah, most definitely, which brings us to an interesting portion talking about the lawsuits

Tom Netting: Uh, yes.

Drumm McNaughton: have filed. I think 15 at this point.

Legal Challenges to New Regulations

Tom Netting: No sooner was the ink dry on the federal register notice or even the unofficial notice back on April 18th, and then the official notice on the 29th, the reality is that 15 states, it was originally 5 almost immediately, it’s now up to 15 states that have put forth litigation against these regulations.

You have states like Florida and the governor in Florida who have said just simply we’re not going to abide by these. So it’s going to be very interesting to see how all of the legal side and discussions take place again because this is an August 1 date of implementation. The rush for a number of these suits are to seek preliminary injunctions and or stays on implementation. So again, while institutions are going to be challenged with assessment, review, and implementation of the ability to comply, we’re also obviously all going to be looking at the courts to see how different challenges all unfold.

Drumm McNaughton: Yeah, it’s, it’s going to be a mess. It’s going to be a mess.

Tom Netting: Keeps you busy. Keeps you busy.

Drumm McNaughton: Exactly. And, and so moving on to some other things, just to kind of wrap up our conversation today, there are some other things that have just come out of the Department that people need to take notice of.

Notice of Proposed Rulemaking (NPRM) on Student Loan Debt Relief

Tom Netting: Yeah, I would, I would talk briefly about three things that I think again are for the good of all of your listeners and institutions across the entire higher education spectrum. The first is taking them kind of in order of time frame, the NPRM on student loan debt relief. A notice of proposed rulemaking for those not familiar with the acronym NPRM. The department published the Student Loan Debt Relief NPRM that is the Continuation of the Biden administration’s efforts on student loan debt relief, and this was taking what they attempted to do with debt cancellation that the Supreme Court laid aside and now taking a different tact and different track through the regulations, probably more directly related. Again, Executive Orders and the opportunity for the authority from the President and or from the administration to have sought that relief the way they did, obviously the courts didn’t think that was capable of being done, but there are areas under the regulations and they’re looking to expand the waiver oversight and, opportunities for the Department itself and the Secretary through its administration to provide debt relief, debt cancellation, and or other forms of reductions. And they’ve worked on those regulations. It was part of negotiations that took place the tail end of last year. Two day sessions over a three month period, and then the continuation of those discussions now culminating in a proposed set of draft regulations. Public comment, it was opened up beginning in the middle of April. We now all have until May 17th to respond. A lot of institutions as well as the service providers and others in the community, I think, will avail themselves of the opportunity to do so. And this is important because once again, it sets regulatory opportunities for cancellation or other forms of waivers of some or all of student’s debt, so this is a biggie that is out there and open for public comment.

Similarly, you’ll recall from our prior conversations, Drumm, the other part of the 23 24 negotiated rulemaking was on program integrity and institutional accountability, and that had a number of other major discussions included in it. Everything from the cash management regulations, and issues with regards to whether books, supplies, and other equipment can continue to be part of tuition and fees in the administration of student loan packages, or whether those need to be taken out. And students need to have the ability to opt in as opposed to opt out of getting the resources from the institution.

This becomes a big deal for the publishers and others because of bundling, packaging of resources as opposed to having kids, like back in years in my day, or at least in mine, and I think yours, going and buying all seven books. Instead, the publishers have gotten to the point where they will take the specific portions that the instructors say is relevant to their curriculum and bundle those “e books” and so many other things.

State Authorization and Accreditation

Tom Netting: The other major issues are state authorization and accreditation. State authorization from the standpoint of online education, the state reciprocity agreements, which heavily influence and provide the underpinning for the regulatory environment. So, institutions providing online education don’t have to try and meet all 50 states requirements individually. They’ve aggregated that down to a set. And then there is the whole issue of accreditation.

Drumm McNaughton: Yeah. With the state authorization, because I’ve got a lot of clients who are very Interested in this, what are the rumors you’re hearing that you can talk about of how this is gonna go?

Tom Netting: Well, the Department has said emphatically, they’re not trying to undermine or dismantle state reciprocity agreements. But the conversations during the negotiations spoke of different direction to be quite honest. Things like, putting into regulation that the state entities that are responsible for these reciprocity agreements should only include representatives from the states, not from the communities and others are problematic. Because it doesn’t necessarily lend itself to the full appreciation of the challenges of the community that’s providing the online education. There were a number of other issues with regard to online education that are of concern. Things like requiring all online educators to take attendance. Requiring and removing the ability for asynchronous learning to be provided in a clock hour environment. Changes to the regulations that were granted in 2019 that they’re looking to take away now. So, you know, again, there’s differences of opinion of what this will do to online education. For the most part, if you’re an online provider, you’re worried, and we’ll see what comes out. I know that we have the incoming, and now I think seated,head of of NCSARA, the National Committee for State Authorization, Reciprocity Agreements, as well as others coming out pleading with the department to maybe refine what they were putting forward. We’re going to have to wait and see.

Keep in mind, once these come out, they will come out in a notice of proposed rulemaking and the public will have the opportunity once again to provide their commentary as well. I anticipate, not that I have a crystal ball, but given that these are under the master calendar, we’re probably going to see them published within the next month or two, probably June,for a July or August deadline for a submission of comments and the reality is because you have to back that up to that master calendar deadline of November 1st and give the Department the opportunity to take all the comments and I believe on this second package, to say nothing of the student loan debt relief, we are going to see a significant number of public comments the Department will have to take into consideration and bring forward.

And we haven’t even talked about, as I said, accreditation, where both the review of the accreditors under NACIQI, the National Advisory Committee on Institutional Quality and Integrity, that’s a mouthful, and their oversight of the accreditors is a part of that process, as well as a literally complete recasting of the requirements of the accrediting bodies in their oversight of the institutions.

Wrap-Up and Future Directions

Drumm McNaughton: That’s one we’re gonna have to donate quite a bit of time to once it comes out

Tom Netting: Heady, heady issues. And yeah, that one’s going to be. I will tell you, Drumm, each one of those three issues, state authorization, accreditation, and the cash management. And keep in mind, there’s also some R2T4, which is return a title for funds and some other issues in with these regs as well. So there’s a lot, once again, you heard me kind of fictitiously talk about peeling back the layers of the onions on Title IX, the layers of responsibility for responding to the program integrity and institutional quality NPRM is going to be significant.

Drumm McNaughton: I just, I kind of sigh to myself and go, it would be so much simpler if dot, dot, dot. It just doesn’t happen.

Tom Netting: Well, keep in mind the over, keep in mind the overlays. Like I said, we’ve got August 1 where we’ve got to have all of the title 9 stuff implemented and keep in mind, we’re still trying to figure out what it is we’re implementing, and all that’s got to be done by August 1st. If these regs come out or in a proposed rule, anytime in May or June with a 30 day window, we’re going to be shuffling to deal with those responses at the same time your institution is trying to implement correctly all of the Title IX.

Oh, and by the way, just in case you were wondering, those regulations that went into effect are going into effect this July 1st on gainful employment and financial value transparency. The computations of metrics for all programs at all institutions, with some being subject to eligibility, implications, loss of eligibility if you’re part of the gainful employment regime, the new audit guide for that in the introduction and an information page were things that the department also published this week. So lots of moving parts, lots of different compliance issues all on the table at the same time, providing a hell of a lot of challenges for administrators and institutions across the entire higher ed spectrum, but all things we’ve got to focus on.

Drumm McNaughton: Well, Tom, as always, this has been a wonderful, wonderful wrap up and you’re able to do this, you condense over 1, 500 pages into 35 or 40 minutes. That’s impressive.

Tom Netting: Well, thank you and again, more to follow because it is important that we get to all of the specifics embedded in those regulations and like you said, and I’m, I’m one of those Wonks, we will be continuing to provide additional information, talking with the Department, seeking more interpretations and clarifications on all the issues we talked about today, because it is important and because, again, we need to make sure that we’re in compliance and doing things to the betterment of our students and their educational opportunities.

Three Key Takeaways for University Presidents and Boards

Drumm McNaughton: Absolutely. Three takeaways for presidents and boards.

Tom Netting: Three takeaways, get with your individuals responsible for campus safety and campus review immediately, to ensure you already have a certain Title IX coordinator, but start to look at how much more pervasive the education and training at your institution needs to be. Again, including new employees, having that as part of their training at the point of entry. It specifies that must take place. Review these regulations and pay attention to those that are sharing information.

I would also strongly, strongly encourage institutions to be prepared for, or at least ask questions of their curriculum developers, especially in online and elsewhere, if they’re prepared for when the NPRM comes out on program integrity and institutional accountability and financial value transparency, because the metrics for gainful employment are applied to all institutions. And that includes looking at your earnings potential of your students based on three different metrics, are things that you want to look at in that audit guide.

Drumm McNaughton: Now, those are great takeaways. Thank you. What’s next for you, my friend?

Tom Netting: I’m continuing to review these things, and Congress is continuing to move. I think that there is some potential for additional discussions on workforce innovation and opportunity act being reauthorized. But in an election year, and with less than 130 days on the legislative calendar, probably not, but you still have to pay attention to that. And a lot of focus on once again, the regulatory environment, and certainly last but not least, Drumm,, the concerns about what are going on on all of college and university campuses right now.

Drumm McNaughton: Oh, absolutely. It’s, it’s a shame. It’s not surprising, but it just is another manifestation of how divided we are as a country.

Tom Netting: And again, I was very careful just to say that I, my thoughts and prayers are with all the administrators and all of the students on both sides. You know, we, we come to higher education to learn, and it is an experiential opportunity, but we hope that there are takeaways from that as we continue to mature.

Drumm McNaughton: Absolutely. Take care, again, thank you, my friend.

Tom Netting: Thank you. And a pleasure as always. And, you know, look forward to the opportunity to maybe have another one of these once that NPRM comes out on those other issues, because it’s going to be vitally important.

Drumm McNaughton: Sounds like a plan. Take care, brother.

Tom Netting: Thank you, Drumm.


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