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Negotiated Rulemaking 2021-22

Institutional and Programmatic Eligibility Committee

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  • rachel-fishman_person_image.jpeg
  • Eddy Conroy Headshot 2024

Amy Laitinen, Rachel Fishman, Sarah Sattelmeyer, Edward Conroy

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Abstract

This year, Secretary Cardona and the Department of Education (Department or ED) will attempt to alter the higher education landscape through a regulatory process known as negotiated rulemaking, also known as “neg reg.” On May 24th, 2021, the Department of Education’s Office of Postsecondary Education announced its intention to establish negotiated rulemaking committees to address a number of issues related to higher education. This negotiated rulemaking will likely have significant implications as the Department seeks to undo the damage done by the DeVos Administration which stripped regulations related to quality assurance and accountability. This website is devoted to tracking the process and providing information about ED’s 2021-22 neg reg, including background papers on the key issues, data, and more. New America’s higher education team will continue to update this website as the process progresses. This page specifically covers the Institutional and Programmatic Eligibility committee. To view information on the Affordability and Student Loans committee, please visit this page.

What's New and NegReg Session Summaries

What's New

We updated this website on January 5th, 2023 with transcripts and videos from each session.

Session Summaries and Agendas

Guide to the NPRM process

Overview:

Session One:

Session Two:

Session Three:

Negotiated Rulemaking 101

While Congress passes laws, it is up to the Executive Branch (usually in the form of federal agencies, like the Department of Education) to implement the laws. In order to implement the law, the Department needs to resolve ambiguity or clarify the meaning around certain terms in order to make implementation possible. It does this by creating “rules,” through a process known as regulation.

While most other federal agencies are allowed to issue regulations without going through a “negotiated rulemaking” process, the Department of Education is different. The Higher Education Act requires that the Department obtain “the advice of and recommendations from individuals and representatives of the groups involved in student financial assistance programs” before issuing regulations on federal financial aid programs (e.g. grants, loans, work-study). The Department must convene a group of stakeholders to provide input on the proposed set of issues, topics, and regulatory language the Department is considering for regulation. According to the law, these representatives, or negotiators, may include “students, legal assistance organizations that represent students, institutions of higher education, State student grant agencies,” and more. If the stakeholders and the Department negotiate and reach agreement, or consensus, on what the proposed regulatory language should look like, the Department is required to propose that language when developing its regulations. If an agreement is not reached, the Department is provided wide latitude in developing its regulations. This process is known as negotiated rulemaking, or “neg-reg.”

The Public Hearings and New America's Submitted Comments

UPDATED: The New America higher education team will be submitting comments on each notice of proposed rulemaking (NPRMs) as they are released. We currently expect four different NPRMs and will update this page as we complete each set of comments.

Before the actual rulemaking, the Department held three days of virtual hearings to establish the rulemaking agenda and committees on June 21st, 23rd, and 24th. You can find the official notice in the federal register here.

Public hearing transcripts and recordings:

The Department invited organizations and groups that are significantly affected by the topics covered in the rulemaking to submit comments—these are oral comments presented during the hearings or written comments submitted by July 1st. Organizations can also submit comments suggesting ED consider topics not listed in the original agenda. You can find New America's submitted written comments here. All other comments can be found here.

Topics Covered by the Rulemaking

The Department of Education proposed rulemaking on a whopping fourteen topics, arguably the most ambitious neg reg list of possible topics to date. ED’s suggested topics in this year's negotiated rulemaking are split between two committees and include:

Institutional and Programmatic Eligibility Committee:

  • Change of ownership and change in control of institutions of higher education under 34 CFR 600.31;
  • Certificates of procedures for participation in Title IV, HEA programs under 34 CFR 668.13;
  • Standards of administrative capability under 34 CFR 668.16;
  • Ability to benefit under 34 CFR 668.156;
  • Financial responsibility for participating institutions of higher education, under 34 CFR subpart L, such as events that indicate heightened financial risk;
  • Gainful employment (formerly located in 34 CFR subpart Q)
  • The 90/10 Rule under 34 CFR 668.28

On October 4th, 2021, the Department published their intent to establish a negotiated rulemaking committee on the 90/10 rule.

Affordability and Student Loans Committee:

For frequently asked questions about negotiated rulemaking, please visit the U.S. Department of Education's research here.

When, Where, & How to Register

The negotiated rulemaking hearings will take place during three separate virtual sessions. These hearings are open to the public, however you must register in advance to watch the rulemaking and can do so by visiting the Department's negotiated rulemaking website.

  • Session 1: January 18-21, 2022 from 10-12:30/1-4:30 eastern;
  • Session 2: February 14-18, 2022 from 10-12/1-4 eastern;
  • Session 3: March 14-18, 2022 from 10-12/1-4 eastern

The Negotiators

The Department has selected negotiators for rulemaking by reviewing public nominations for negotiators. These negotiators usually are knowledgeable about the topic, represent the interests of those significantly affected by the topics proposed for rulemaking, and reflect the diversity of program participants. The Department generally selects one negotiator and one alternate negotiator. The primary negotiator participates in the negreg discussion and votes to reach consensus. The alternate negotiator does so only if the primary negotiator is absent.

The Department identified several constituencies that they would like to see represented at the negotiation table. Here is the list of negotiators for the Institutional and Programmatic Eligibility committee:

Federal Negotiator

  • Gregory Martin

Accrediting Agencies

  • Jamienne S. Studley, WASC Senior College and University Commission (WSCUC) (primary)
  • Laura Rasar King, Council on Education for Public Health (alternate)

Civil Rights Organizations and Consumer Advocacy Organizations

  • Carolyn Fast, The Century Foundation (primary)
  • Jaylon Herbin, Center for Responsible Lending (alternate)

Financial Aid Administrators at Postsecondary Institutions

  • Samantha Veeder, University of Rochester (primary)
  • David Peterson, University of Cincinnati (alternate)

Four-Year Public Institutions of Higher Education

  • Marvin Smith, University of California, Los Angeles (primary)
  • Deborah Stanley, Bowie State University (alternate)

Legal Assistance Organizations that Represent Students and/or Borrowers

  • Tyler Johnson, Brooklyn Legal Services (primary)
  • Jessica Ranucci, New York Legal Assistance Group (alternate)

Minority-Serving Institutions

  • Beverly Hogan, Tougaloo College (retired) (primary)
  • Ashley Schofield, Claflin University (alternate)

Private, Nonprofit Institutions of Higher Education

  • Kelli Perry, Rensselaer Polytechnic Institute (primary)
  • Emmanual A. Guillory, National Association of Independent Colleges and Universities (NAICU)(alternate)

Proprietary Institutions of Higher Education

  • Bradley Adams, South College (primary)
  • Michael Lanouette, Aviation Institute of Maintenance/Centura College/Tidewater Tech (alternate)

State Attorneys General

  • Adam Welle, Minnesota Attorney General's Office (primary)
  • Yael Shavit, Office of the Massachusetts Attorney General (alternate)

State Higher Education Executive Officers, State Authorizing Agencies, and/or State Regulators of Institutions of Higher Education and/or Loan Servicers

  • Debbie Cochrane, California Bureau of Private Postsecondary Education (primary)
  • David Socolow, New Jersey's Higher Education Student Assistance Authority (HESAA) (alternate)

Students and Student Loan Borrowers

  • Ernest Ezeugo, Young Invincibles (primary)
  • Carney King, California State Senate (alternate)

Two-Year Public Institutions of Higher Education

  • Anne Kress, Northern Virginia Community College (primary)
  • William S. Durden, Washington State Board for Community and Technical Colleges (alternate)

U.S. Military Service Members, Veterans, or Groups Representing them

  • Travis Horr, Iraq and Afghanistan Veterans of America (primary)
  • Barmak Nassirian, Veterans Education Success (alternate)

Civil Rights Organizations (an addition to the table that reached unanimous consent on day one of session one)

  • Amanda Martinez, UnidosUS (primary)

The Department also asked for nominations for advisors. Advisors are not be members of committees nor do they participate in reaching consensus.

Advisors (non-voting):

  • David McClintock, McClintock & Associates, P.C. (Compliance Auditor with Experience Auditing Institutions that Participate in the Title IV, HEA Programs)
  • Adam Looney, David Eccles School of Business at the University of Utah (Labor Economist or an Individual with Experience in Policy Research, Accountability, and/or Analysis of Higher Education Data

A full list of negotiators, advisors, office of general counsel representatives, and facilitators can be found here. The protocols are here.

Recordings and Transcripts of Neg Reg

We will upload recordings and transcripts of committee meetings once they become available.

Session One:

Negotiator chat transcripts-currently only some days are available

Session Two:

Negotiator chat transcripts-Currently only some days are available

Session Three:

U.S. Department of Education Issue Papers and Other Resources

The Department has provided issue papers that contain background information on each topic it will consider for regulation, along with regulatory text and other resources, depending on the topic. The Department also provides other resources and negotiators have their own opportunity to submit resources and suggested regulatory text:

Ability to Benefit

Session One

Session Two

Session Three

Draft Consensus Language from March 18, 2022

Standards of Administrative Capability

Session One

Session Two

Session Three

Gainful Employment

Session One

Session Two

Session Three

Financial Responsibility

Session One

Session Two

Session Three

Changes of Ownership and Change in Control

Session One

Session Two

Session Three

Certification Procedures

Session One

Session Two

Session Three

Title IV Revenue and Non-Federal Education Assistance Funds (90/10)

Session One

Session Two

Session Three

Draft Consensus Language from March 18, 2022

Negotiated Rulemaking Twitter Feed

Please follow the conversation using #NegReg. Follow our negotiated rulemaking official account @HigherEdNegReg, and @amylaitinen1, @sellensatt, @higheredrachel, and @e_conroy1 for further commentary.

More About the Authors

Amy Laitinen
Amy Laitinen white bg.png
Amy Laitinen

Senior Director, Higher Education

Sarah Sattelmeyer
Sarah Sattelmeyer

Project Director, Education, Opportunity, and Mobility

Eddy Conroy Headshot 2024
Edward Conroy

Senior Policy Manager, Education Policy Program

Programs/Projects/Initiatives

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Negotiated Rulemaking 2021-22