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Negotiated Rulemaking

Negotiated rulemaking is a process in which a governmental agency forms a committee with representatives of various interested parties ​to ​​negotiate the ​terms of a proposed rule. ​The goal of a negotiated rulemaking proceeding is to build consensus on regulations before notice and comment rulemaking procedures.

​If the stakeholders on the committee reach consensus on the content of the rule and make a recommendation, the final rule, when issued, is much more likely to be implemented without costly legal challenges or delays. If, however, the negotiated rulemaking committee does not reach consensus, the federal agency may submit their own final draft of the regulation.

Capitol

Negotiated Rulemaking for 2021-2022

Protections for Students, Loan Repayment, Targeted Loan Cancellation Programs, and Other Higher Education Regulations

On May 24, 2021, the U.S. Education Department announced a new round of negotiated rulemaking on at least 14 higher education-related topics and invited comment on any regulatory issue that that can improve outcomes for students, especially borrowers. Potential topics may include:

  • Ability to benefit
  • Borrower defense to repayment
  • Certification procedures for participation in federal financial aid programs
  • Change of ownership and change in control of institutions of higher education
  • Closed school discharges
  • Discharges for borrowers with a total and permanent disability
  • Discharges for false certification of student eligibility
  • Financial responsibility for participating institutions of higher education, such as events that indicate heightened financial risk
  • Gainful employment
  • Income-contingent loan repayment plans
  • Mandatory pre-dispute arbitration and prohibition of class action lawsuits provisions in institutions’ enrollment agreements
  • Pell Grant eligibility for prison education programs
  • Public service loan forgiveness
  • Standards of administrative capability

The agency hosted a series of virtual public hearings on June 21, June 23, and June 24, 2021 to solicit stakeholder feedback. AACRAO joined other higher education associations in submitting written comments on each of the proposed agenda items, encouraging the department to focus on increasing access for all students while employing risk-based oversight and enforcement wherever practicable to protect students and taxpayer dollars. Moving forward, the department will review all of the comments, then solicit nominations for negotiators to serve on the rulemaking committees, which are expected to convene in late summer 2021.

The Education Department also intends to solicit stakeholder feedback on regulations in response to the Fiscal Year 2020 appropriations bill, which made changes to the 90/10 rule to require that private for-profit institutions derive at least 10 percent of their revenue from non-federal sources like Title IV aid programs and benefits for veterans and military servicemembers. By law, the department may not begin regulatory activity on this provision until October 1, 2021.

UPDATES

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Accreditation & Innovation

Negotiated Rulemaking for 2018-2019

The U.S. Education Department recently concluded its previous round of negotiated rulemaking on more than a dozen topics. The rulemaking panel reached consensus in April 2019 on federal rules governing college accreditation, state approval of online colleges, definition of a credit hour, religious institutions, and competency-based education, among other issues.

Final rules governing Distance Education & Innovation and TEACH Grants & Faith-Based Entities took effect July 1, 2021.

Final rules governing Accreditation & State Authorization took effect July 1, 2020.

AACRAO Past President Dr. Tina Falkner, Director of the Office of Student Finance at the University of Minnesota - Twin Cities, served as an alternate on the Accreditation and Innovation Negotiated Rulemaking Committee, representing 4-year public institutions.

Committee and Subcommittee Members