Biden Administration Seeks Input on Higher Education Regulatory Issues

Alison Griffin

On Monday, May 24, the Biden Administration announced a first round of hearings to gain feedback and input from the higher education community about topics to be potentially addressed through negotiated rulemaking, the process by which the legislative intent of the Higher Education Act (HEA) can be translated into action. (Read: this is how the majority of the rules that govern for- and non-profit institutions get written.)

Virtual hearings are scheduled for June 21, 23 and 24, 2021. Hearings will be held from 10am - 12pm EST and 2pm - 4pm EST each day.

Initial topics that the U.S. Department of Education is interested in regulating on include, but are not limited to the following::

  • Borrower defense to repayment

  • Gainful employment requirements

  • Loan repayment cancellation provisions for borrowers in public service fields, borrowers with disabilities and borrowers whose institutions close

  • Change of ownership and change of control of institutions of higher education

  • Pell Grant eligibility for prison education programs

The full list of topics can be found on the Department’s website.

Ultimately, the Department is interested in comments on regulations that address gaps in postsecondary education outcomes such as retention, completion, student loan repayment and loan default. Further, the Department encourages commenters to talk about these programs with a focus on disparate impacts by race, ethnicity, gender and other key demographic characteristics.

Following the public hearings in June, the Department is expected to solicit nominations for non-federal negotiators who can serve on negotiated rulemaking committees, which will convene in the summer of 2021.

While many in higher education are intently focused on rulemaking around the 90/10 rule for for-profit institutions, the regulatory activity associated with the implementation of this rule will not begin until October 1, 2021.

Individuals who are interested in making comments at the public hearings must register by sending an email message to negreghearing@ed.gov no later than the day prior to the hearing at 12pm EST, identifying the hearing at which they would like to speak. Determinations to speak will be made on a first-come, first-serve basis and comments will be limited to 3-5 minutes. More details can be found on the Department of Education’s website.

Our team has written frequently on topics of negotiated rulemaking, including some of the topics under consideration by the Department of Education such as gainful employment and borrower defense to repayment.