DEPARTMENT OF EDUCATION 

Statement of Regulatory Priorities 

I. Introduction 

 The U.S. Department of Education (Department) supports States, local communities, institutions of 

higher education, and others in improving education nationwide and in helping to ensure that all 

Americans receive a quality education. We provide leadership and financial assistance pertaining to 

education at all levels to a wide range of stakeholders and individuals, including State educational 

agencies, local school districts, providers of early learning programs, elementary and secondary schools, 

institutions of higher education, career and technical schools, nonprofit organizations, postsecondary 

students, members of the public, families, and many others. These efforts are helping to ensure that all 

children and students from pre-kindergarten through grade 12 will be ready for, and succeed in, 

postsecondary education and that students attending postsecondary institutions are prepared for a 

profession or career. 

 We also vigorously monitor and enforce the implementation of Federal civil rights laws in educational 

programs and activities that receive Federal financial assistance, and support innovative programs, 

research and evaluation activities, technical assistance, and the dissemination of research and evaluation 

findings to improve the quality of education. 

 Overall, the laws, regulations, and programs we administer will affect nearly every American during his 

or her life. Indeed, in the 2011 to 2012 school year, about 55 million students will attend an estimated 

99,000 elementary and secondary schools in approximately 13,800 public school districts, and about 21 

million students will enroll in degree-granting postsecondary schools. All of these students may benefit 

from some degree of financial assistance or support from the Department. 

 In developing and implementing regulations, guidance, technical assistance, and monitoring related to 

our programs, we are committed to working closely with affected persons and groups. Specifically, we 

work with a broad range of interested parties and the general public including families, students, and 

educators; State, local, and tribal governments; and neighborhood groups, community-based early 

learning programs, elementary and secondary schools, colleges, rehabilitation service providers, adult 

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education providers, professional associations, advocacy organizations, businesses, and labor 

organizations. 

 We also continue to seek greater and more useful public participation in our rulemaking activities 

through the use of transparent and interactive rulemaking procedures and new technologies. If we 

determine that it is necessary to develop regulations, we seek public participation at the key stages in the 

rulemaking process. We invite the public to submit comments on all proposed regulations through the 

Internet or by regular mail. 

 To facilitate the public's involvement, we participate in the Federal Docketing Management System 

(FDMS), an electronic single Governmentwide access point (www.regulations.gov) that enables the public 

to submit comments on different types of Federal regulatory documents and read and respond to 

comments submitted by other members of the public during the public comment period. This system 

provides the public with the opportunity to submit comments electronically on any notice of proposed 

rulemaking or interim final regulations open for comment, as well as read and print any supporting 

regulatory documents. 

 We are continuing to streamline information collections, reduce the burden on information providers 

involved in our programs, and make information easily accessible to the public. 

II. Regulatory Priorities 

A. American Recovery and Reinvestment Act of 2009 

 On February 17, 2009, President Obama signed into law the American Recovery and Reinvestment 

Act of 2009 (ARRA), historic legislation designed, in part, to invest in critical sectors, including education. 

ARRA laid the foundation for education reform by supporting investments in innovative strategies that are 

most likely to lead to improved results for students, long-term gains in school and school system capacity, 

and increased productivity and effectiveness. ARRA provided funding for several key discretionary grant 

programs, including the Race to the Top Fund and the Investing in Innovation Fund (i3) programs. 

 The Race to the Top Fund program, the largest competitive education grant program in U.S. history, is 

designed to provide incentives to States to implement system-changing reforms that result in improved 

student achievement, narrowed achievement gaps, and increased high school graduation and college 

enrollment rates. Congress authorized and provided $4.35 billion for ARRA in 2010, and the Department 

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awarded approximately $4 billion in Race to the Top State grant funds in two phases. The Department 

awarded $600 million to Delaware and Tennessee under the Race to the Top Phase 1 competition and 

approximately $3.4 billion to the winners of the Phase 2 competition: The District of Columbia, Florida, 

Georgia, Hawaii, Maryland, Massachusetts, New York, North Carolina, Ohio, and Rhode Island. 

 In announcing the winners of the Race to the Top Phase 2 competition, the Secretary noted that 

“[we] had many more competitive applications than money to fund them in this round” and expressed the 

hope that any Race to the Top funding included in the Department’s FY 2011 appropriations would be 

available for Race to the Top Phase 3 awards. In particular, there were nine finalists in the Phase 2 

competition that did not receive funding despite submitting bold and ambitious plans for comprehensive 

reforms and innovations in their systems of elementary and secondary education. These nine finalists 

were: Arizona, California, Colorado, Illinois, Kentucky, Louisiana, New Jersey, Pennsylvania, and South 

Carolina. 

On April 15, 2011, President Obama signed into law Public Law 112-10, the Department of 

Defense and Full-Year Continuing Appropriations Act, 2011 (FY 2011 Appropriations Act), which made

$698.6 million available for the Race to the Top Fund, authorized the Secretary to make awards on “the 

basis of previously submitted applications,” and amended ARRA to permit the Secretary to make grants 

for improving early childhood care and learning under the program. 

 Race to the Top--Early Learning Challenge (RTT-ELC). On May 25, 2011, Secretary Duncan and the 

Secretary of Health and Human Services, Kathleen Sebelius, announced the RTT-ELC, a new $500 

million State-level grant competition to be held in 2011 and authorized under ARRA and the FY 2011 

Appropriations Act. The Departments of Education and Health and Human Services are administering 

this competition jointly. At its core is a strong commitment by the Administration to stimulate a national 

effort to make sure all children enter kindergarten ready to succeed. Through the RTT-ELC, the 

Administration seeks to help close the achievement gap between children with high needs and their peers 

by supporting State efforts to build strong systems of early learning and development that provide 

increased access to high-quality programs for the children who need it most. This competition represents 

an unprecedented opportunity for States to focus deeply on their early learning and development systems 

for children from birth through age five. It is an opportunity to build a more unified approach to supporting 

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young children and their families--an approach that increases access to high-quality early learning and 

development programs and services, and helps ensure that children enter kindergarten with the skills, 

knowledge, and dispositions toward learning that they need to be successful. 

 The Departments of Education and Health and Human Services have published requirements for 

the FY 2011 competition and will complete the competition and make awards by the end of 2011. 

Race to the Top Phase 3. On May 25, 2011, the Department also announced that approximately 

$200 million of the FY 2011 Race to the Top funds would be made available to some or all of the nine 

unfunded finalists from the 2010 Race to the Top Phase 2 competition. The Department recognizes that 

$200 million is not sufficient to support full implementation of the plans submitted during the Phase 2 

competition, and therefore believes that making these funds available to the remaining nine finalists is the 

best way to create incentives for these States to carry out the bold reforms proposed in their applications. 

We have issued final eligibility requirements for the nine unfunded finalists to apply for Race to the Top 

Phase 3 funds. 

B. Elementary and Secondary Education Act of 1965, as Amended 

 In 2010, the Administration released the Blueprint for Reform: The Reauthorization of the Elementary 

and Secondary Education Act, the President’s plan for revising the Elementary and Secondary Education 

Act of 1965 (ESEA) and replacing the No Child Left Behind Act of 2001 (NCLB). The blueprint can be 

found at the following Web site: http://www2.ed.gov/policy/elsec/leg/blueprint/index.html. 

We look forward to congressional reauthorization of the ESEA that will build on many of the 

reforms States and LEAs will be implementing under the ARRA grant programs. In the interim, we may 

propose amendments to our current regulations implementing the ESEA. 

Additionally, as we continue to work with Congress on reauthorization of the ESEA, we are 

currently implementing a plan to provide flexibility on certain provisions of current law for States and 

school districts that are willing to embrace reform. The mechanisms we are implementing will ensure 

continued accountability and commitment to quality education for all students while at the same time 

providing States and school districts with increased flexibility to implement State and local reforms to 

improve student achievement. 

C. Higher Education Act of 1965, as Amended 

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 Changes to the FFEL and Direct Loan Programs. On March 30, 2010, the President signed into law 

the Health Care and Education Reconciliation Act of 2010, Public Law 111-152, title II of which is the 

SAFRA Act. SAFRA made a number of changes to the Federal student financial aid programs under title 

IV of the Higher Education Act of 1965, as amended (HEA). One of the most significant changes made 

by SAFRA is that it ended new loans under the Federal Family Education Loan (FFEL) Program 

authorized by title IV, part B, of the HEA as of July 1, 2010. 

 On May 5, 2011, ED announced through a notice in the Federal Register that it was beginning a 

negotiated rulemaking process to streamline the loan program regulations by repealing unnecessary 

FFEL Program regulations and incorporating and modifying necessary requirements within the Direct 

Loan Program regulations, as appropriate. ED held four public hearings in May 2011 to obtain public 

feedback on proposed amendments, as well as on possible amendments to other ED regulations, 

including those governing income-based and income-contingent loan repayment plans and loan 

discharges based on the total and permanent disability of the borrower. Based on the feedback received 

from these hearings, ED will soon form a negotiated rulemaking committee to consider proposed 

amendments and intends to conduct these negotiations in 2012. 

 Approval of New Gainful Employment Programs. Over the last 2 years, the Department has 

conducted two significant rulemakings to enhance its program integrity regulations related to the title IV, 

student aid programs. As part of this effort, on October 29, 2010, the Department issued regulations that 

included requirements for an institution to notify the Department before offering a new educational 

program that provides training leading to gainful employment in a recognized occupation (Gainful 

Employment--New Programs). The Department established the notification requirement out of concern 

that some institutions might attempt to circumvent proposed regulations regarding gainful employment 

standards by adding new programs before those standards could take effect. The Department explained 

that the notification process requirements were intended to remain in effect until the final regulations that 

established eligibility measures for gainful employment programs would take effect. 

 We published the final regulations establishing the gainful employment eligibility measures on June 

13, 2011 (Gainful Employment--Debt Measures). In those regulations, the Department established 

measures for gainful employment programs that are intended to identify the worst performing programs. 

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We believe that when these new regulations go into effect on July 1, 2013, the notification process for all 

new gainful employment programs established in the Gainful Employment--New Programs final 

regulations will no longer be needed. Accordingly, the Department has issued a new NPRM, which 

among other changes, proposes to reduce burden for institutions by amending the Gainful Employment--

New Programs final regulations to establish a smaller group of gainful employment programs for which an 

institution must obtain approval from the Department. 

 Title II of the HEA. The Secretary intends to develop regulations under title II of the HEA to streamline 

the program, institutional, and State report cards; prescribe data quality standards to ensure reliability, 

validity, and accuracy of the data submitted; and establish standards for identifying low-performing 

teacher preparation programs. 

D. Individuals with Disabilities Education Act

 We have issued final regulations that revise the regulations implementing the Early Intervention 

Program for Infants and Toddlers with Disabilities authorized under part C of the Individuals with 

Disabilities Education Act (IDEA) to make changes needed for the appropriate implementation of the early 

intervention program. The final part C regulations incorporate provisions from the 2004 amendments to 

part C of the IDEA. Additionally, the final regulations provide States with flexibility in some areas, while 

ensuring State accountability to improve results, and needed services for infants and toddlers with 

disabilities and their families. 

 The Department has also issued a notice of proposed rulemaking to revise the regulations 

implementing the Assistance to States for the Education of Children with Disabilities program authorized 

under part B of the IDEA and intends to issue final regulations in the coming year. 

 Specifically, over the last 6 months, we engaged in a review of one particular provision of the part B 

regulations, relating to the use of public benefits or insurance to pay for services provided to children 

under part B. IDEA and the part B regulations allow public agencies to use public benefits or insurance 

(e.g., Medicaid) to provide or pay for services required under part B with the consent of the parent of a 

child who is enrolled in a public benefits or insurance program. Public insurance is an important source of 

financial support for services required under part B. With respect to the use of public insurance, our 

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current regulations specifically provide that a public agency must obtain parental consent each time 

access to public benefits or insurance is sought. 

 We are now proposing to amend the regulations to provide that, instead of having to obtain parental 

consent each time access to public benefits or insurance is sought, the public agency responsible for 

providing special education and related services to a child would be required, before accessing a child’s 

or parent’s public benefits or insurance, to provide written notification to the child’s parents. The 

notification would inform parents of their rights under the part B regulations regarding the use of public 

benefits or insurance to pay for part B services, including information about the limitations on a public 

agency’s billing of public benefits or insurance programs, as well as parents’ rights under the Family 

Educational Rights and Privacy Act and IDEA to consent prior to the disclosure of personally identifiable 

information. 

 We are proposing these amendments to reduce unnecessary burden on a public agency’s ability to 

access public benefits or insurance in appropriate circumstances but still maintain critical parent 

protections, and we do this for several reasons. Specifically, we are mindful of the importance of 

ensuring that parents have sufficient information to make decisions about a public agency’s use of their 

public benefits or insurance and the disclosure of their child’s educational records for that purpose. At the 

same time, these proposed amendments are designed to address the concern expressed to the 

Department by many State personnel and other interested parties that, since the publication of the part B 

regulations in 2006, the inability to obtain parental consent has contributed to public agencies’ failure to 

claim all of the Federal financial assistance available for part B services covered under Medicaid. In 

addition, public agencies have expressed concern over using limited resources and the significant 

administrative burden of obtaining parental consent for the use of Medicaid and other public benefits or 

insurance each time that access to public benefits or insurance is sought. Consequently, many of these 

parties have requested that the Department remove the parental consent requirement. 

E. Family Educational Rights and Privacy Act 

 Given the President's emphasis on improving the collection and use of data as a key element of 

educational reform, we intend to issue final regulations in the coming year to amend our current 

regulations for the Family Educational Rights and Privacy Act of 1974 (FERPA) to ensure that States are 

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able to effectively establish and expand robust statewide longitudinal data systems while protecting 

student privacy. 

F. Other Potential Regulatory Activities 

 Congress may reauthorize the Adult Education and Family Literacy Act (AEFLA) (title II of the 

Workforce Investment Act of 1998) and the Rehabilitation Act of 1973 (title IV of the Workforce 

Investment Act of 1998). The Administration is working with Congress to ensure that any changes to 

these laws (1) improve the State grant and other programs providing assistance for adult education under 

the AEFLA and for vocational rehabilitation and independent living services for persons with disabilities 

under the Rehabilitation Act of 1973; and (2) provide greater accountability in the administration of 

programs under both statutes. Changes to our regulations may be necessary as a result of the 

reauthorization of these two statutes. 

III. Retrospective Review of Existing Regulations 

 Pursuant to section 6 of Executive Order 13563 "Improving Regulation and Regulatory Review" (Jan. 

18, 2011), the following Regulatory Identifier Numbers (RINs) have been identified as associated with 

retrospective review and analysis in the Department’s final retrospective review of regulations plan. Some 

of the entries on this list may be completed actions, which do not appear in The Regulatory Plan. 

 However, more information can be found about these completed rulemakings in past publications of the 

Unified Agenda on Reginfo.gov in the Completed Actions section for that agency. These rulemakings can 

also be found on Regulations.gov. The final agency plans can be found at: 

http://www2.ed.gov/about/open.html. 

RIN Title of Rulemaking Do we expect this rulemaking to 

significantly reduce burden on 

small businesses? 

1820-AB64 Assistance to States for the 

Education of Children With 

Disabilities 

No. 

1840-AD01 High School Equivalency 

Program and College Assistance 

Migrant Program, the Federal 

TRIO Programs, and Gaining 

No. 

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Early Awareness, and Readiness 

for Undergraduate Program 

1848-AD02 Program Integrity Issues No. 

1840-AD05 Title IV of the Higher Education 

Act of 1965, as Amended 

No. 

1840-AD06 Program Integrity: Gainful 

Employment—Measures 

No. 

1840-AD08 Titles III and V of the Higher 

Education Act of 1965, as 

Amended 

No. 

1840-AD10 Application and Approval 

Process for New Programs 

Yes. 

1880-AA86 Family Educational Rights and 

Privacy 

No. 

1880-AA84 The Freedom of Information Act No. 

1890-AA14 Direct Grant Programs and 

Definitions That Apply to 

Department Regulations 

No. 

1890-AA16 Department of Education 

Acquisition Regulations 

No. 

IV. Principles for Regulating 

 Over the next year, other regulations may be needed because of new legislation or programmatic 

changes. In developing and promulgating regulations we follow our Principles for Regulating, which 

determine when and how we will regulate. Through consistent application of the following principles, we 

have eliminated unnecessary regulations and identified situations in which major programs could be 

implemented without regulations or with limited regulatory action. 

 In deciding when to regulate, we consider the following: 

• Whether regulations are essential to promote quality and equality of opportunity in education. 

• Whether a demonstrated problem cannot be resolved without regulation. 

• Whether regulations are necessary to provide a legally binding interpretation to resolve ambiguity. 

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• Whether entities or situations subject to regulation are similar enough that a uniform approach 

through regulation would be meaningful and do more good than harm. 

• Whether regulations are needed to protect the Federal interest; that is, to ensure that Federal 

funds are used for their intended purpose and to eliminate fraud, waste, and abuse. 

 In deciding how to regulate, we are mindful of the following principles: 

• Regulate no more than necessary. 

• Minimize burden, to the extent possible, and promote multiple approaches to meeting statutory 

requirements if possible. 

• Encourage coordination of federally funded activities with State and local reform activities. 

• Ensure that the benefits justify the costs of regulating. 

• To the extent possible, establish performance objectives rather than specify compliance behavior. 

• Encourage flexibility, to the extent possible, and as needed to enable institutional forces to achieve 

desired results. 

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The 1 Actions Described in the Regulatory Plan

Title

Regulation 

Identifier 

Number

Rulemaking 

Stage

Title IV of the Higher Education Act of 1965, as Amended 1840-AD05 Proposed Rule Stage

Department of Education (ED) 

Office of Postsecondary Education ( OPE ) RIN: 1840-AD05

 View Related Documents

Title: Title IV of the Higher Education Act of 1965, as Amended

Abstract: The Secretary proposes to amend the title IV, HEA student assistance regulations to (1) reflect that, as of July 1,

2010, under title II of the Health Care and Education Reconciliation Act of 2010 (the SAFRA Act), no new Federal Family

Education Loan Program loans will be made and (2) to reflect other changes to improve the effectiveness and efficiency of the

student loan programs, particularly with regard to the discharge of loans for persons with total and permanent disabilities.

Priority: Economically Significant Agenda Stage of Rulemaking: Proposed Rule

Major: Yes Unfunded Mandates: No

CFR Citation: 34 CFR ch VI (To search for a specific CFR, visit the Code of Federal Regulations ) 

Legal Authority: 20 USC 1070a; 20 USC 1071 to 1087-4; 20 USC 1087a to 1087j; 20 USC 1098e; PL 111-152

Legal Deadline: None

Regulatory Plan:

Statement of Need: These regulations are needed to reflect the provisions of the SAFRA Act (title II of the Health Care and

Education Reconciliation Act of 2010) and to reflect other amendments to the HEA resulting from the SAFRA Act.

Legal Basis: Health Care and Education Reconciliation Act of 2010, Public Law 111-152.

Alternatives: The Department is still developing these proposed regulations; our discussion of alternatives will be included in

the notice of proposed rulemaking.

Costs and Benefits: Estimates of the costs and benefits are currently under development and will be included in the notice of

proposed rulemaking.

Risks: None.

Timetable:

Action Date FR Cite

NPRM 03/00/2012 

Regulatory Flexibility Analysis Required: Undetermined Government Levels Affected: No

Federalism: No

Public Comment URL: www.regulations.gov

Agency Contact: David Bergeron Department of Education

Office of Postsecondary Education

Room 8022 1990 K Street NW.

Washington , DC 20006 

Phone: 202 502-7815 

E-Mail: david.bergeron@ed.gov

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