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, adulteducation 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
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. 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 Departmentawarded 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, a uthorized 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 supportingyoung 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 AmendedChanges 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.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, ourcurrent 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 areable 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.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.• 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.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