Virtual USDE Negotiated Rulemaking Process Update and Opportunities

Dr. Heather Perfetti, President, Middle States Commission on Higher Education

Dr. Heather Perfetti, President, Middle States Commission on Higher Education

As part of the Middle States Commission on Higher Education’s strategic priority to promote advocacy initiatives for its members, we would like to draw your attention to the virtual negotiated rulemaking process currently underway by the U.S. Department of Education (USDE). MSCHE President Dr. Heather Perfetti was named as a primary negotiator on the Affordability and Student Loans Committee representing accreditors. The Department’s negotiated rulemaking intends to make regulatory changes for the programs authorized by title IV of the Higher Education Act of 1965, as amended.

The negotiated rulemaking committee, which met once in October, will meet from November 1-5, 2021, and again from December 6-10, 2021. MSCHE encourages members to visit the USDE page and look for opportunities to virtually attend the proceedings. In addition, all are invited to register to make public comments at the end of each day. There is also a Prison Education Programs Subcommittee, which will make recommendations to the full committee, and will meet for a second time from November 8-10, 2021.

Currently, the United States Department of Education is also seeking comments regarding the 90/10 rule:

The Department intends to regulate on what is commonly referred to as the 90/10 rule. Section 2013 of the American Rescue Plan Act of 2021 (ARP) amended HEA section 487(a)(24) to require that a proprietary institution derive at least 10 percent of its revenues from sources that are not Federal education assistance funds. Federal education assistance funds are “Federal funds that are disbursed or delivered to or on behalf of a student to be used to attend such institution.” Section 2013(c)(2) of the ARP provides that regulations developed and published on 90/10 by the Department will not be effective until on or after January 1, 2023.

Virtual public hearings for interested parties to comment on the 90/10 rule only, will be held on October 26, 2021, from 2-4 p.m., Eastern time, and on October 27, 2021, from 10 a.m. to noon, Eastern time. You can register to provide comments at the USDE page linked above.

There is also the opportunity to submit written comments by November 3, 2021, and more information about next steps can be found here. A negotiated rulemaking committee on the 90/10 rule is expected to convene next year.