PROGRESS REPORT 

 

U.S. Department of Education’s

Implementation of Recommendations from

2015 Report of Task Force on Federal Regulation of

Higher Education

January 31, 2019
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This report provides an update on the Department of Education’s (Department’s) progress in 

meeting the recommendations found in the 2015 report of the Task Force on Federal 

Regulation of Higher Education (Task Force). The Department is engaged in substantial 

efforts to simplify the regulations as requested by the Task Force and to meet the requirements 

of President Trump’s Executive Order 13777, which calls upon all agencies to reduce 

unnecessary regulatory burden. We are proud of our progress but recognize that we have more 

work to do in the coming year. We would like to thank Senator Lamar Alexander as well as 

Senators Richard Burr and Michael Bennet, and former Senator Barbara Mikulski for their 

work in convening such an esteemed group of higher education experts to develop these 

recommendations.

Outlined below are the actions we have taken or plan to take in support of major findings of 

the Task Force. 

Reducing the Cost and Complexity of Federal Regulations

The Department agrees with the Task Force’s finding that our many Dear Colleague Letters, 

manuals and handbooks - including the Federal Student Aid Handbook, the Handbook for 

Campus Safety and Security Reporting, and the Department’s Guidelines for 

Preparing/Reviewing Petitions and Compliance Reports – are overly burdensome to 

institutions and a sign that the title IV requirements are too complex. Hundreds of pages of 

regulations should not result in hundreds of additional pages of subregulatory guidance in 

order for institutions to understand what is expected of them. 

Return to Title IV

In some instances, the Department cannot remedy the complexity of its regulations because 

statutory changes would be required to accomplish that goal. For example, the Department 

recognizes that the current Return to Title IV (R2T4) regulations are difficult to apply, 

especially when students stop attending classes but do not notify the institution or when 

students stop attending some, but not all, classes. Given that R2T4 errors are among the top 

findings during Federal Student Aid (FSA) program reviews, it is time to rethink how title IV 

funds are delivered and how they must be returned when a student stops attending. 

The Department is addressing some targeted R2T4 issues specific to subscription-based 

programs in its current negotiated rulemaking proceedings, but even a lengthy negotiated 

rulemaking process focused entirely on R2T4 would not address many fundamental problems 

because we do not have the statutory authority to fully address those problems. To address the 

root of the issue, Congress needs to act. The Department would be pleased to provide 

technical assistance where requested. 

In another vein, the Department is working to rescind or amend other unnecessarily complex or 

overly-prescriptive regulations and subregulatory guidance, including through revisions of the 

Borrower Defense to Repayment (BD) regulations and the Gainful Employment (GE) 

regulations. 
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Borrower Defense to Repayment

To finalize the rulemaking that the Department started in 2017, we plan to publish a new BD 

notice of proposed rulemaking (NPRM) in early 2019 as the baseline for proposed changes. 

We intend to publish a final regulation by November 1, 2019. 

Gainful Employment

Last year, the Department engaged in negotiated rulemaking and published an NPRM in which 

the Department proposed to repeal the GE regulations. The Task Force highlighted GE as a 

950-page example of regulatory overreach that goes well beyond congressional intent. As 

stated by the Task Force, the GE regulations allowed the prior Administration to “use the 

regulatory process to set its own policy agenda in the absence of any direction from Congress, 

and in the face of clear opposition of that policy from one house of Congress.”1 The 

Department is currently reviewing the nearly 19,000 public comments received in response to 

the GE NPRM and plans to publish final GE regulations in 2019. 

Subregulatory Guidance Documents

The Department has also comprehensively reviewed our expansive higher education library of 

more than 1,500 Dear Colleague Letters and other documents containing subregulatory 

guidance. Based on that review, we have determined that more than 1,200 such documents are 

outdated or do not reflect current policies or best practices and therefore should be retained 

only for historical purposes. The Department will withdraw these documents in the upcoming 

year, which will result in a reduction of nearly 80 percent of higher education subregulatory 

guidance documents. We are also limiting the publication of new Dear Colleague Letters to 

those that are absolutely required to reduce unnecessary burden or provide greater clarity 

requested by the higher education community. 

Title IX Overreach

The Department agrees with the Task Force that it was inappropriate for the Department to rely 

almost entirely on subregulatory guidance to expand the meaning and requirements of Title IX. 

Instead, the Department should have engaged in notice-and-comment rulemaking to address 

Title IX compliance issues. To that end, on November 29, 2018, the Department published a 

Title IX NPRM to require that schools respond meaningfully to every report of sexual 

harassment and to ensure that due process protections are in place for all students. We are in 

the process of receiving and reviewing public comments on the NPRM. 

Clery Act

The Department agrees that its implementation of the Clery Act has created an ever-growing 

set of reporting mandates that are communicated through a subregulatory handbook. We wish 

to highlight the recent changes made by FSA to ensure greater consistency in the use of 

terminology with that used by other law enforcement agencies, such as the Department of 

Justice. It is also time for the Department to consider how these reporting requirements can 

help inform students without creating reporting traps that increase institutional risk and that do 

not make campuses any safer for students. Although the Department will not consider the 

Clery Act at its 2019 negotiated rulemaking sessions, we would like to work with the field to 

 

1 Page H 1149; see amendment numbered 214 offered by Chairman John Kline on February 18, 2011 to H.R. 1. 

https://www.congress.gov/crec/2011/02/17/CREC-2011-02-17-pt1-PgH1081.pdf 
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reduce confusion and compliance burdens in the future through changes to the Clery handbook. 

We stand ready to provide technical assistance to Congress for any statutory changes that it 

may wish to consider. 

Creating Smarter, More Meaningful Accountability

FSA Program Reviews

The Department agrees that it has not always acted in a timely fashion to complete program 

reviews of institutions participating in the title IV programs. Delayed program review findings 

can be inordinately costly to institutions, as the longer the Department delays a report, the 

more likely the costs associated with negative findings will escalate. It is in the best interest of 

all parties, including students, for the Department to provide quick program review findings so 

that institutions can take immediate corrective action. 

We are discussing whether, when a program review reveals problems that require more indepth investigation, the program review should be closed, and FSA should instead launch a 

separate investigation to address those specific issues. 

Similarly, when recertification applications are not processed in a timely manner, institutions 

are put on temporary Program Participation Agreements (PPAs) that enable their participation 

in title IV on a month-to-month basis. Not only does this create uncertainty for institutions and 

students, but in many cases it also prevents institutions from making significant program 

modifications or adding new programs, both of which may be necessary to meet workforce 

demands. The Department commits to completing recertification reviews and communicating 

decisions in a timely manner so that institutions can make needed changes to their institutions 

and programs. 

The Department is now working to eliminate the backlog of program reviews and certifications 

by focusing new program reviews on the greatest need and the highest risk; this will allow 

current and outstanding program reviews to be completed in a timely manner. In the upcoming 

negotiated rulemaking, we have proposed ensuring prompt action is taken on program reviews.

The Department is also working diligently to ensure that it does not create new policy through 

FSA program reviews and enforcement actions. We believe there must be consistency in 

decision-making, regardless of which institution is requesting a determination and which FSA 

office is making it. In a continued attempt to achieve these goals and resolve confusion caused 

by past inconsistency, the Department’s policymaking offices will continue to work with FSA 

to provide predictable, fair, and clear directions to the field. 

Reducing Barriers to Innovation

Credit Hour

The Task Force identified a number of examples of regulatory overreach on the part of the 

Department that have limited or deterred innovation. For example, the Department’s definition 

of Credit Hour, which was added through the 2010 Program Integrity regulations, relies on 

“seat time” to measure student progress and disburse title IV aid, despite the fact that new 

pedagogical methods and technologies support innovative delivery and assessment methods 

that may be superior to traditional seat time measurements. 
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We appreciate the concerns raised by the Task Force, and therefore, in our current negotiated 

rulemaking sessions, we are proposing to amend the definition of the term “Credit Hour” to 

return flexibility to institutions, with oversight from accreditors. The Department has also 

requested that negotiators submit feedback about how to create Credit Hour standards and 

guidelines that ensure quality, protect taxpayers, and do not limit innovation. 

State Authorization of Distance Education and Program Length

The Task Force identified as “controversial and burdensome” the State Authorization of 

Distance Education regulations, which the Department issued on December 19, 2016 (the 2016 

final regulations), and partially delayed until July 1, 2020. The Task Force urged Congress to 

clarify that the Federal requirements for State Authorization apply only to the State in which an 

institution is physically located. It also asked Congress to prohibit the Department from 

publishing regulations on this issue. Furthermore, the requirements of some States are so 

onerous that some institutions have stopped enrolling students who reside in those States or 

have ceased placing students in or allowing students to complete internships, externships, or 

clinical rotations in those States. 

Proponents of the 2016 final regulations contend that requiring institutions to state explicitly 

where a credential is earned will benefit students by providing clarity regarding a State’s 

licensure requirements. This is a legitimate concern; however, those opposed to the 

regulations, including the Task Force, argue that this requirement imposes steep compliance 

costs on institutions and may reduce program options available to students. 

There is ample evidence that the ever-changing State licensure requirements create significant 

barriers to employment for many individuals. Particularly impacted are those who cannot 

afford to complete costly credentialing programs and those who are required to relocate often, 

such as military spouses.2

 The Department encourages States to reduce credentialing barriers 

or at least establish reciprocity agreements in order to enable worker mobility, support 

competition, and protect equality of opportunity.

The Department understands the Task Force’s concerns and is proposing changes to the 2016 

State Authorization and the reasonable program length rule in the current negotiated 

rulemaking process. The Department looks forward to hearing the views of the negotiators and 

to receiving feedback from them and the public as we move to a final regulation.

Creating Smarter, More Meaningful Accountability 

The Task Force also noted the bottleneck created by the Department’s inability to approve new 

programs in a timely manner, even after State and accreditor approvals. This prevents 

institutions from responding to education and workforce needs, and it also adds to the cost of 

developing new programs because many accreditors require institutions to start enrolling 

students within a certain period of time after they approve the program. In fact, the 

accreditor’s or the State’s approval, or both, may expire before the Department processes the 

new program, thus requiring the institution to start over again, pay additional fees, submit new 

applications, and pay costs associated with accreditor site visits. The Department must work to 

 

2 https://obamawhitehouse.archives.gov/sites/default/files/docs/licensing_report_final_nonembargo.pdf
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process new program applications as efficiently as possible, yet also closely scrutinize those 

cases in which institutions are proposing to create new programs that may result in or enable 

unnecessary credential inflation. 

Finally, the Department has encouraged innovative educational models, such as distance 

learning, direct assessment, and competency-based learning. Some institutions that believed 

they were operating consistent with the Department’s regulations – and that even received 

bipartisan accolades from Congress, governors, and education experts for implementing 

innovative practices – have faced recommendations for severe enforcement actions regarding

their practices by Department staff. The Department plans to use the negotiated rulemaking 

process to develop clear, consistent, and fair regulations for distance learning, direct 

assessment, and subscription-based delivery models and has proposed to require accreditors to 

evaluate educational innovations and to determine their credibility and effectiveness. This 

negotiated rulemaking will encourage stakeholders to think of ways to encourage innovation 

and to help institutions explore new pedagogies. 

Calculating the Burden Imposed by the Department

Regulatory Impact Analyses

The Department is not indifferent to the burdens noted by the Task Force that it imposes when 

promulgating new regulations and acknowledges that its regulatory impact analyses rely on 

models that include a number of future projections and assumptions. To the extent that the 

Department can rely on data to build those models, it does so in close collaboration with the 

Office of Management and Budget. However, we often find ourselves unable to access the 

data required to formulate a precise burden determination. For this reason, the Department 

relies upon public comments submitted in response to NPRMs to gather more data or consider 

additional models for improving our estimates of regulatory cost and burden. We need 

institutions and organizations to recommend more precise models rather than making broad 

statements that disagree with our projections but fail to offer alternative methodologies or 

solutions.

Reducing Regulatory Burden to Better Serve Students

Verification

The Task Force highlighted the Free Application for Federal Student Aid (FAFSA®) 

verification process as a source of confusion and frustration for institutions and students. The 

Task Force recommended a more streamlined process that aligned verification with “a targeted 

student-by-student approach” and that based aid eligibility on “prior-prior” year financial 

information. The Department understands these concerns and has taken a number of steps to 

reduce verification burden. 

Working with Congress, the Department has adopted “prior-prior” year tax information for use 

in determining title IV eligibility. In addition, the Department has worked with the Internal 

Revenue Service (IRS) to create a Data Retrieval Tool (DRT) that enables students and parents 

to upload information directly from their tax returns to the FAFSA®, thus reducing the burden 

of completing the FAFSA®. Adata security vulnerability required the IRS to take its DRT 

offline for seven months, but it is once again available to students and parents. 
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For individuals who do not file tax returns; however, verification is particularly difficult 

because the IRS will not have tax data for those individuals. The Department’s verification 

process was previously modified to require the use of tax transcripts and not tax returns to 

perform the verification function, even though the Department’s regulations provide for 

flexibility in this area. While the Department wishes to combat improper payments, this 

reduced flexibility can pose extra difficulties for students and parents, especially in the event 

that a parent is estranged or the IRS has no record of individuals filing taxes. 

The Department believes that the best way to reduce the verification burden is to allow the 

Department to verify information directly with the IRS. If allowed to perform this verification 

directly, neither institutions nor students would be asked to provide additional documentation 

to complete the verification of many data elements. In order for the Department to establish 

such a direct verification system, a statutory change is required in order to waive the 

prohibitions on data sharing described in Section 6103 of the Internal Revenue Code. The 

Department appreciates the efforts of Senators Alexander, Murray, Whitehouse, and Gardner 

to improve data sharing, and looks forward to supporting bipartisan and bicameral legislation 

to streamline data sharing in order to reduce burden to students and institutions. 

In the meantime, the Department has agreed to allow the use of both tax returns and tax 

transcripts as a means of completing verifications. We will also allow the use of attestations to 

affirm family size, non-filing, and other data elements where other supporting evidence is not 

available. The Department is conducting an analysis in order to understand better how many 

students who are flagged for verification do not, as a result, enroll or remain enrolled in school. 

We also seek to determine more accurately how heightened verification is successful or 

unsuccessful in reducing improper payments.

Financial Responsibility Standards

The Department agrees that financial responsibility standards for title IV institutions are in 

need of significant update and revision. Negotiated rulemaking on financial responsibility 

standards is a costly and labor-intensive undertaking, however. In addition, in order to fully 

update the financial responsibility standards to take into account contemporary accounting 

practice, statutory changes may be necessary. 

In the 2018 Borrower Defense to Repayment (BD) Notice of Proposed Rulemaking (NPRM), 

the Department included an adjustment to our methodology to take into account a recent 

change in Financial Accounting Standards Board (FASB) standards related to the treatment of 

lease liabilities. However, we recognize that other concerns remain, especially regarding the 

treatment of endowment holdings and earnings, and that more work must be done. The 

Department is committed to addressing this FASB change in the new BD NPRM to be 

published later this year, but understands that this will solve only one of many problems that 

make the composite score methodology an incomplete test for many institutions.
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Institutional Accreditation

The Department agrees with the Task Force that the process by which it recognizes accrediting 

agencies has allowed the Department to intrude too far into the accreditation process. We also 

agree that the recognition process has become burdened by minutia and that it fails to 

distinguish between mundane paperwork and the evaluation of student learning and academic 

quality in assessing compliance and applying sanctions or corrective action requirements. 

In December, the Department released two white papers outlining our principles and priorities 

for rethinking higher education generally and accreditation specifically.

3

 In these documents, 

we propose taking a multifaceted approach to restoring accreditor autonomy and ensuring that 

accreditors’ primary role is the evaluation of academic programs and services rather than 

administrative functions, governance, paperwork and processes. Specifically, the Department 

is – 

 Revising the Guidelines for Preparing/Reviewing Accreditation Petitions and 

Compliance Reports handbook, which is currently almost 90 pages long, to better 

explain exactly which documents should be included in an agency’s petition for 

recognition. 

 Adding site visits to the Department’s recognition review procedures to conduct a more 

comprehensive review of the agency’s records, interview staff, and observe the agency 

in action. This allows the Department to randomly select files to review, rather than 

relying on what the agency chooses to submit along with its petition for initial or 

renewal of recognition.

 Returning to a “substantial compliance” standard to allow institutions and agencies that 

need to make minor changes to written documents, but are otherwise compliant in 

practice, to receive recognition or accreditation but be required to submit monitoring 

reports as needed. 

 Clarifying that evidence of effectiveness for the purposes of Department review 

includes evidence that the agency has applied its standards correctly and consistently, 

but also recognizing that an agency is not out of compliance simply because it has not 

had the need or opportunity to apply each policy or standard during the most recent 

recognition review period. 

 Expanding the timeline of the recognition review process to provide greater opportunity 

for staff to review agency practices in order to promote continuous agency 

improvement and for agencies to make minor corrections to policies or documents prior 

to the final recommendation by Department staff. 

 Engaging in negotiated rulemaking on the accreditor recognition regulations to reduce 

unnecessary burden and support responsible and carefully monitored innovation.

Consumer Information

The Task Force identified the enormous amount of information institutions are required to 

report to the agency as a source of significant burden and expense. We agree that the 

Department must reduce the amount of data institutions are required to report and find new 

ways to display the most important and useful data to the public so that it can be used to make 

 

3 https://www2.ed.gov/admins/finaid/accred/rethinking-higher-education-accreditation-reform.pdf and 

https://www2.ed.gov/admins/finaid/accred/rethinking-higher-education.pdf
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informed enrollment decisions. For example, the Department plans to update the College 

Scorecard to include program-level data, such as the median earnings and median debt of 

recent completers, which will better inform student choice and encourage more responsible 

borrowing. 

The Department removed references to national averages or medians from the College 

Scorecard. Such national medians are irrelevant and misleading because they do not 

differentiate between institutions with different missions or serving different student 

populations. Instead, the Department will revise the College Scorecard to allow students to 

compare institutions and to help them understand how to view those outcomes in the context of 

each institution’s mission, academic programs, and students served. 

The Department has revised what was formerly called the College Shopping Sheet to a take 

into account the recommendations of the National Association of Student Financial Aid 

Administrators (NASFAA) and to make the document more useful and understandable to 

students. We have also changed the name of the form to the College Financing Plan to reflect 

the increasing reliance on loans to pay for a college education. The changes to the College 

Financing Plan will be implemented on a voluntary basis over the next year as the Department 

tests its efficacy with students and, working with the financial aid community, solicits 

additional feedback from the field.

The Department is retiring terms that refer to loans as “aid” or “awards” because these terms 

may be misleading to students and may result in uninformed and in some cases accidental 

borrowing. We also support restoration of the annual promissory note to ensure that students 

understand that they are taking loans rather than receiving grants when they approve the 

release of Federal Direct Loans. The Department’s Next-Gen Financial Aid initiative will 

provide for more regular contact between the Department and borrowers to improve borrower 

education, including regarding loan products and loan repayment options.

The Department is also reviewing potential flexibilities within our statutory authority to allow 

institutions to establish borrowing limits to prevent students from taking on debt they are 

unlikely to be able to repay. If regulatory flexibility is insufficient, we would support statutory 

changes to give institutions the tools they need to reduce over-borrowing. 

Improving the regulatory process

For the negotiated rulemaking sessions that recently started, the Department has made several 

procedural changes to be responsive to the recommendations of the Task Force. For example, 

in response to concerns about the Department grouping too many disparate topics into a single 

rulemaking effort, the Department has added subcommittees to bring additional experts to the 

conversations that can make informed recommendations to the negotiators as they develop and 

discuss proposed changes. Although subcommittee members will not have a vote on final 

consensus, we believe that their expert advice will ensure the process considers all viewpoints 

on each topic with a greater likelihood of reaching consensus. We have also started the 

process by presenting our proposals as marked-up regulations, rather than more generalized 

issue papers, to initiate more concrete and focused conversations at the start of the negotiating 

sessions. 
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In addition, we are working to develop risk-based, risk-adjusted, and risk-informed models to 

target our regulatory oversight efforts, to provide more meaningful and relevant data to 

students and parents, and to differentiate between institutional quality and institutional 

selectivity. 

We appreciate the work of the Task Force and its carefully developed recommendations for 

reducing unnecessary regulatory burden. We recognize that we have significant additional 

work to do to address all of the recommendations of the Task Force, but we are proud of the 

progress we have made so far and believe that our accomplishments will bring regulatory relief 

to all institutions.

The Department sees as its first priority the enforcement of regulations that reasonably protect 

students and that safeguard student and taxpayer investments in postsecondary education. It is 

imperative that the Department’s rules and actions preserve student choice, honor institutional 

mission, and recognize that adults engaged in lifelong learning bring a variety of goals and 

expectations to the classroom that may be different than those brought by traditional students. 

We look forward to continuing to work with Congress to reduce unnecessary regulatory 

burdens and to restoring autonomy of mission and academic programming to the colleges and 

universities who know best how to serve their students. We would also be pleased to work 

with Congress on a reauthorization of the Higher Education Act, as amended, to address the 

issues raised by the Task Force on Federal Regulation of Higher Education.