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Business and Policy Areas
Business and Policy Areas

Future of Recent ED Regulations Uncertain

February 21, 2017

Republican control of both the executive and legislative branch allows the GOP to follow through on campaign promises to cut federal regulation. One of President Trump’s first executive orders, signed on January 30, directed federal agencies to trim their current and future rulemakings following two new standards. One standard calls for agencies to identify for elimination two existing regulations for every one new regulation promulgated. The other standard requires offsetting the incremental cost of all new and repealed regulations for FY17 so it totals to zero or less. Details on how these standards are to be applied are not yet available.

One available tool is the little-used Congressional Review Act, which allows implementation of recently issued regulations to be blocked by Congress in an expedited process. Only one higher education rule has been targeted under the CRA so far. On February 7, the House voted 240-181 to rescind rules on teacher preparation programs issued October 31 by the Department of Education under the Obama administration. The Senate has not yet acted on the resolution but is expected to schedule a vote on it soon after the Presidents Day recess.

The rules mandated a new accountability system under Title II of the Higher Education Act and made corresponding changes to the criteria for Teacher Education Assistance for College and Higher Education (TEACH) grant program. They were the end result of a contentious rulemaking process that began in 2012. NACUBO joined 30 associations in filing comments expressing serious concerns about the proposed rules in 2015. Many higher education associations, led by the American Council on Education, support having the rules blocked, calling them “burdensome and problematic.”

Other ED Rules Face Scrutiny

Two other ED rules, finalized in the waning days of Obama’s term, are seen as vulnerable to modification or repeal by the Trump administration.

  •  The borrower defense to repayment rules, in addition to setting standards for forgiveness of student loans, seek to protect federal interests with significant changes to the financial responsibility standards. The rules, published on November 1, are currently set to take effect on July 1, 2017.
  • Culminating another protracted rulemaking process, rules addressing state authorization for distance education and study-abroad programs were issued on December 19. Because ED missed the statutory “master calendar” deadline, the rules do not become effective until July 2018. The final rules immediately generated concern in the higher education community when representatives of the National Council for State Authorization Reciprocity Agreements (NC-SARA) interpreted the new rule as excluding its members due to language about state laws that might conflict with a reciprocity agreement.  One of the last acts by the outgoing Undersecretary of Education Ted Mitchell, on January 18, was sending a letter to NC-SARA clarifying ED’s position.  

Other ED rules may also be reexamined. Republican administrations are generally friendlier to for-profit institutions, which are already lobbying for elimination or changes to the gainful employment rules. On the other hand, 16 groups representing veterans recently sent a letter to House and Senate committee leaders urging support for those rules, arguing that they protect veterans.


Anne Gross
Vice President, Regulatory Affairs