Reflections from Negotiated Rulemaking

January 22, 2019
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two people negotiate while a third signs a document

by Tina Falkner, AACRAO President

After a day and a half delay due to 10” of snow in the DC metro area, the Negotiated Rulemaking committee convened at noon on Tuesday, January 15, and met from 9-5 on Wednesday, January 16.

Negotiated rulemaking is the process that the Department of Education can engage in “to prepare proposed regulations for the Federal Student Aid programs authorized under title IV of the Higher Education Act of 1965, as amended (HEA)." In July ED published in the Federal Register their intention of forming a negotiated rulemaking (neg reg) committee and then held three public hearings to collect comments on the topics proposed for coverage in this round of Neg Reg.

AACRAO at the table

The negotiations are between ‘interested parties’ or constituency groups (for this particular round: financial aid administrators; legal assistance organizations that represent students; title III eligible institutions; four-year public institutions; private, nonprofit institutions; private, proprietary institutions; institutions that offer primarily distance education; two-year public institutions; regional accrediting agencies; programmatic accrediting agencies; national accrediting agencies; faith-based institutions; students; employers; and veterans) and ED. In both the public comment period and at the start of the meeting there was considerable concern raised that there wasn’t enough representation of the student consumer protection perspective, as well as the fact that there was no seat at the negotiating table for the voice of the states.

Changes to the process
In a departure from past neg reg sessions, ED proposed redlined versions of the sections of the HEA that are being addressed in this round of negotiating. ED is also attempting to group the seemingly disparate topics into ‘packages’ to potentially facilitate consensus with the negotiators. Additionally, there are three subcommittees that aren’t necessarily comprised of members of the larger negotiating committee that will meet separately to discuss the groupings of proposed changes and bring recommendations to the full, voting committee at our February rulemaking meeting. ED noted that the changes this round are an attempt to expidite the process of getting to consensus. All of these changes to the standard process seemed to really upset people who had participated in the rulemaking process in the past.

Issues addressed

The first order of business for the committee was to hear petitions for additions to the negotiating committee. I thought this would be fairly routine and simple; I couldn’t have been more wrong. There was considerable debate about adding a seat for the states Attorneys General. In the end, ED would not concede to allow them either voting or alternate membership. State Higher Education Executive Office (SHEEO) representation was approved after much less debate.

The committee also debated the protocol that governs the negotiation proceedings. Again, I thought this would be simple and straightforward. And, again, I was wrong. The committee was concerned about another change to the former process that outlines that alternate negotiators are not allowed to speak unless the main negotiator is absent for a significant portion of the day. In the past, I now understand, that both constituency group negotiators were allowed to talk during the negotiations. The committee modified the proposed language to allow the alternate to speak somewhat more freely when the topic being discussed is more relevant to their experience.

After much of the ‘housekeeping’ items were agreed upon, the committee began discussing the proposed draft regulatory language regarding accreditation. Much of the discussion focused on why ED proposed the changes in the accreditation section of HEA, specifically asking about “what problems were the proposed regulatory changes designed to fix?” ED could not cite specific instances for nearly all of the changes we discussed. The general sense of the room was that the proposed language would weaken the gate-keeping power of accreditation agencies and therefore introduce more risk for fraud, waste and abuse within Title IV financial aid administration.

One very perplexing aspect of the negotiations were that ED proposed new definitions of specific terms that are used in the accreditation portion of HEA but the committee wasn’t allowed to start the negotiations by discussing the definitions, but rather were instructed that deliberations would start at the beginning of the section and progress sequentially. I got the sense, and I thought it too, that if you don’t know the underlying meaning of a particular word or phrase it is nonsensical to agree to a sentence that uses it. The days of negotiating ended with the committee making it through preliminary discussion on twelve pages of proposed text - I do wonder how we will ever make it through all of the proposed regulations.

Share your thoughts

I’ve been asked by several colleagues on campus how the experience was and I have responded, “Interesting in both the Minnesota Nice way and in the true sense of the word” (and for those of you who aren’t familiar with Minnesota Nice it is like when something tastes yucky and you say it is ‘interesting’). I will continue to reflect on my experiences and please feel free to reach out to me if you have questions, concerns or issues that you would like me to relay about the proposed regulatory language.