Tag: administration

  • Biden administration discharges $4.5B in loans for Ashford students

    Biden administration discharges $4.5B in loans for Ashford students

    The Education Department is discharging any remaining loans for more than 260,000 borrowers who attended Ashford University and will move to bar a key executive at Ashford’s former parent company from the federal financial aid system, the agency announced Wednesday.

    The agency’s action, totaling $4.5 billion, builds on an August 2023 decision to forgive $72 million in loans for 2,300 former Ashford students after finding that the college repeatedly lied to them about the cost, time requirement and value of its degree program. The discharges through the department’s borrower-defense program are among the largest in the program’s history. Wiping out the loans for Corinthian College students cost the department $5.8 billion, while the discharges for former ITT Technical Institute students totaled $3.9 billion.

    The University of Arizona acquired the predominantly online institution Ashford in 2020 and rebranded it as the University of Arizona Global Campus. At first, the university partnered with Zovio Inc., a publicly traded company that owned Ashford, to run the rebranded entity but decided in 2022 to buy Zovio’s assets. The University of Arizona has since moved to completely absorb the online campus.

    Borrowers who attended Ashford from March 1, 2009, through April 30, 2020, are eligible for relief.

    “Numerous federal and state investigations have documented the deceptive recruiting tactics frequently used by Ashford University,” said U.S. under secretary of education James Kvaal in a statement. “In reality, 90 percent of Ashford students never graduated, and the few who did were often left with large debts and low incomes. Today’s announcement will finally provide relief to many students who were harmed by Ashford’s illegal actions.”

    The Biden administration has forgiven $34 billion via borrower defense for 1.9 million borrowers, the department said.

    But forgiving loans for Ashford students isn’t enough for the department. Officials proposed a governmentwide debarment of Andrew Clark, who in 2004 founded Bridgepoint Education, which later became Zovio. He stepped down in March 2021.

    The debarment would mean Clark could no longer be employed in any role at any institution that receives funding from Title IV of the Higher Education Act of 1965, which authorizes federal financial aid programs, for at least three years.

    “The conduct of Ashford can be imputed to Mr. Clark because he participated in, knew, or had reason to know of Ashford’s misrepresentations,” the department said in a news release. “Mr. Clark not only supervised the unlawful conduct, he personally participated in it, driving some of the worst aspects of the boiler-room-style recruiting culture.”

    The department’s Office of Hearings and Appeals has final say on whether to debar Clark, who can contest the decision.

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  • Biden Administration Releases Final Regulatory Agenda of Their Term

    Biden Administration Releases Final Regulatory Agenda of Their Term

    by CUPA-HR | January 7, 2025

    On December 13, the Biden administration issued their Fall 2024 Regulatory Agenda, which provides insights on regulatory and deregulatory activity under development across more than 60 federal departments, agencies and commissions. The Fall 2024 Regulatory Agenda is the second agenda published this year, following the Spring 2024 Regulatory Agenda released in July.

    Given the upcoming change in administration, the Fall 2024 Regulatory Agenda is the last that will be released by the Biden administration. The Trump administration will seek to change many regulatory priorities after taking office, meaning that regulations intended to be released after the Biden administration leaves office will change or be withdrawn altogether. As such, the regulations and target dates highlighted below are not final and subject to change once the Trump administration takes office.

    Department of Labor

    Heat Illness Prevention in Outdoor and Indoor Work Settings

    The Biden administration’s regulatory agenda reminds interested stakeholders of the Department of Labor (DOL) Occupational Safety and Health Administration (OSHA)’s notice of proposed rulemaking on heat injury and illness prevention measures for both indoor and outdoor work settings. The comment period is open through January 14, 2025.

    If finalized, the rule would impact all workplace settings under OSHA’s jurisdiction where employees are exposed to heat indexes that equal or exceed 80 degrees, regardless of whether the work is performed in an indoor or outdoor setting. All covered employers would need to circulate heat injury and illness prevention plans (HIIPPs), implement measures for providing breaks and water to employees exposed to high heat, and train employees on heat-related risks and illness prevention, among other provisions.

    Given the comment period’s closing date, the incoming Trump administration will be tasked with next steps for the heat rule upon taking office. Trump nominated Lori Chavez-DeRemer to serve as DOL secretary, where she will oversee future actions taken with respect to heat injury and illness regulations. While she has not publicly weighed in on the current proposal, she co-led a report during her time in Congress that recommended the creation of a federal heat standard for nonimmigrant agricultural workers. She is also from Oregon, which has already implemented its own state heat illness prevention standard. As such, she may be responsive to moving forward with a heat injury and illness rule if confirmed as DOL secretary, though what those regulations may include remains to be seen.

    Equal Employment Opportunity Commission

    Recordkeeping Requirements for PWFA Charge-Related Records

    The regulatory agenda includes a reminder that the Equal Employment Opportunity Commission (EEOC) published a notice of proposed rulemaking to extend existing recordkeeping requirements under EEO law to include charges under the Pregnant Workers Fairness Act (PWFA). The NPRM was published on November 21, 2024, and the comment period runs through January 21, 2025.

    The PWFA was signed into law in December 2022, and the EEOC subsequently finalized implementing regulations for the PWFA in April 2024. The lengthy regulations provide guidance to employers and workers on people covered under the law and regulations, the types of limitations and medical conditions covered, and how to request reasonable accommodations.

    According to the regulatory agenda, the new notice of proposed rulemaking sets out recordkeeping requirements for institutions of higher education relating to PWFA charges. The regulations do not require the creation of any records, but they do require that all covered entities (including higher ed institutions) maintain all employment and personnel records they make or keep in the regular course of business for a period of one year and all records relevant to a PWFA charge. These requirements are identical to the recordkeeping requirements related to Title VII of the Civil Rights Act, Americans with Disabilities Act (ADA), and Genetic Information Nondiscrimination Act (GINA) charges.

    Federal Acquisition Regulation

    Pay Equity and Transparency in Federal Contracting

    In January 2025, the Department of Defense (DOD), General Services Administration (GSA), and NASA anticipate releasing a final rule to amend the Federal Acquisition Regulation on pay equity and transparency in federal contracting.

    The joint agencies published a pay equity and transparency notice of proposed rulemaking  in January 2024, in which the agencies propose to amend the Federal Acquisition Regulation to implement a government-wide policy that would:

    1. prohibit contractors and subcontractors from seeking and considering job applicants’ previous compensation when making employment decisions about personnel working on or in connection with a government contract (“salary history ban”), and
    2. require these contractors and subcontractors to disclose the compensation to be offered on job announcements (“compensation disclosure” or “pay transparency”).

    Although the agencies are targeting January 2025 for release, the final rule has not yet been sent to the Office of Information and Regulatory Affairs (OIRA) for review prior to publication. All regulations are required to be reviewed by OIRA before they are published for the public, and review typically lasts 30-60 days after the regulation is received. Given the short time left, it appears unlikely that the rule will be published before the end of the Biden administration’s term. It is unknown if the Trump administration will move forward with this rule or seek to withdraw it.

    Department of Homeland Security

    Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program

    The Fall 2024 Regulatory Agenda shows that the Department of Homeland Security aimed for a December 2024 release of additional regulations to modernize the H-1B program. DHS met this timeline, publishing a final rule on December 18.

    The final rule included several noteworthy provisions that addressed concerns raised by CUPA-HR in comments responding to the October 2023 proposed rule, including a modification of the definition and criteria for H-1B specialty occupations.

    The rule also codifies DHS’s current policy to give deference to prior determinations when adjudicating petitions involving the same party and facts (known as the “deference policy”), eliminates the itinerary requirement in the Form I-129, expands the H-1B cap exemptions for nonprofit and governmental research organizations, enhances cap-gap protections for F-1 students transitioning to H-1B status, and strengthens the USCIS site-visit program.

    The final rule takes effect on January 17, 2025, just days before the next presidential inauguration. While it is unclear if the incoming Trump administration will seek to modify or roll back the rule, the codification of key provisions, such as the deference policy, makes them more difficult to rescind without formal rulemaking.

    Department of Education

    Discrimination Based on Shared Ancestry or Ethnicity

    Keeping with the date set in the Spring 2024 Regulatory Agenda, the Department of Education’s Office for Civil Rights (OCR) originally targeted December 2024 for the release of a notice of proposed rulemaking to amend Title VI of the Civil Rights Act of 1964 and OCR’s enforcement responsibilities for cases involving discrimination based on shared ancestry or ethnic characteristics. OCR is issuing this in response to a 2019 Trump executive order and a 2021 Biden executive order.

    The proposed rulemaking has become a higher priority for OCR, given the recent political activity on campus related to the Israel-Hamas war and related scrutiny from Congressional Republicans of higher education’s response to protests on campus. OCR explains the need for this rulemaking by stating that they have “received complaints of harassment and assaults directed at Jewish, Muslim, Hindu and other students based on their shared ancestry or ethnicity.”

    OCR missed the December target date, and the rule has not yet been sent to OIRA for review prior to publication. Given the short amount of time the Biden administration has before the end of its term, it seems unlikely that this rule will be published before the Trump administration takes office. It is unknown if and how the Trump administration would move forward with regulations on the same issue, though they may seek to publish a proposal given the first Trump administration’s 2019 executive order on combatting antisemitism.

    Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance: Sex-Related Eligibility Criteria for Male and Female Athletic Teams

    In the Fall 2024 Regulatory Agenda, OCR kept its rule to finalize Title IX requirements related to transgender students’ participation in athletic programs to its “long-term actions” list, but the Biden administration subsequently withdrew it on December 20, 2024, halting all efforts to finalize the rule.

    As a reminder, the April 2023 proposed rule recommended language that would prohibit schools receiving federal funding from adopting or applying a one-size-fits-all ban on transgender student participation on teams consistent with their gender identity.

    The Trump administration is likely to reverse the Biden administration’s Title IX regulations that expand protections to individuals facing discrimination on the basis of sexual orientation and gender identity. Trump and Republicans also spoke of bans on transgender women’s participation in women’s sports during the 2024 election campaign. As such, the Trump administration could choose to issue a separate Title IX rule regarding transgender students’ participation in athletic programs, though it remains to be seen if they will do so.

    Looking Ahead

    As mentioned above, the target dates and regulations themselves are likely to change once the Trump administration takes office. The public will not have insight into the anticipated regulatory and deregulatory activity under the Trump administration until the Spring 2025 Regulatory Agenda is released, which will likely be sometime in late spring or early summer 2025. CUPA-HR will continue to keep members apprised of all relevant regulatory activity as it develops throughout the year.



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  • Biden administration finalizes distance ed, TRIO rules

    Biden administration finalizes distance ed, TRIO rules

    The Biden administration’s regulations changing how colleges are held accountable and adding new requirements for institutions to access federal financial aid are now in place, though legal challenges loom. 

    Demetrius Freeman/The Washington Post/Getty Images

    Colleges will have to submit to the federal government new data on their distance education programs under a batch of new rules the Biden administration finalized Monday.

    The rules, which will take effect July 1, 2026, will likely be the president’s last package of new regulations for colleges and universities before Trump takes office Jan. 20.

    The new regulations carry out Biden’s plan to increase federal oversight of online programs, but the final version doesn’t go as far as the president initially intended After receiving significant pushback from online education lobbyists, the Education Department conceded, backing off a plan to  disallow asynchronous options for clock-hour courses or require colleges to take attendance in online classes.

    The package does, however, still include rules that require colleges to report more data on enrollment in distance education classes, which include those offered online or via correspondence. Higher ed institutions won’t have to begin submitting the data until July 1, 2027.

    “Online learning can reach more students and sometimes at a lower cost to students, but what we know about the outcomes of online education compared to traditional in-person instruction is woefully inadequate,” Under Secretary James Kvaal said in the release. “The new reporting in this final rule will help the department and the public better assess student outcomes at online programs and help students make informed choices.”

    The final rule also included technical changes to federal college prep programs known as TRIO. But the department decided not to move forward with a plan to open eligibility to some TRIO programs to undocumented students—a long-sought goal of some TRIO directors and advocates, as well as higher education associations. 

    Distance Education

    But one of the most controversial parts of the rule for colleges and universities was whether Biden would decide to end any asynchronous options for students in online clock-hour programs, which are typically short-term workforce training programs that lead to a certificate.

    A Trump-era rule allowed asynchronous learning activities—such as watching a prerecorded video—to count toward the required number of credits in short-term clock-hour programs. But the department said in its proposal that because of the hand-on nature of many clock-hour programs, the change often results in a “substandard education” that “puts students and taxpayers at risk.” 

    Hundreds of professors and higher education groups disagreed. Some, particularly those representing for-profit programs, argued in public comments that the proposal exceeded the department’s authority and would burden institutions. Others said the new rules reflected an antiquated mindset about college modality, arguing that disallowing asynchronous options could limit access for students who benefit from the flexibility that online education provides.

    While the department decided not to end asynchronous distance ed programs, the agency intends to keep a close eye on the courses. 

    “The department refined these final rules based upon extensive public comment on a notice of proposed rulemaking published over the summer,” department officials said in a news release. “However, we remind institutions that asynchronous clock hours cannot be used for homework and that there must be robust verification of regular and substantive interaction with an instructor.”  

    No Expanded TRIO

    Although the decision not to expand eligibility for TRIO has fewer implications for colleges, the move is a blow for the TRIO directors and immigration equity advocates who have been working for years to open up the program.

    Miriam Feldblum, executive director of the Presidents’ Alliance on Higher Education and Immigration, told Inside Higher Ed that nearly 100,000 undocumented students graduate from high school each year, many of whom could benefit from TRIO services. 

    But Republicans opposed the idea. Six GOP members of Congress, including Virginia Foxx, a North Carolinian and former chair of the House education committee, blasted the concept in a letter to Secretary Miguel Cardona in August.

    “The proposed expansion is a blatant attempt to provide additional taxpayer-funded services to those not seeking citizenship in the name of reducing ‘burden.’ The department’s proposed expansion will stretch funding thin and risk those currently eligible for TRIO,” they wrote.

    Some college administrators and TRIO directors in red states are worried about the potential political backlash Biden’s new regulation could cause for their programs.

    “The fighter in me thinks that this is a tough time to go to battle and have an unforced error or a target on our backs and [on] TRIO, given the contentious nature of immigration policy right now,” Geoffrey Garner, a TRIO program director from Oregon, said in at January 2024 advisory committee meeting. “We just think right now is not the best time for this proposal, as much as it breaks my heart to say that out loud.”

    That advisory committee ended up backing the changes to expand some TRIO programs to undocumented students.

    Education Department officials said its decision wasn’t due to political tensions. Rather, they said the proposal “was too narrow … in scope of additional populations to be served.”

    Under the department’s proposed rule, high school students who aren’t citizens or permanent residents could qualify for Upward Bound, Talent Search and Educational Opportunity Centers but not Student Support Services or the McNair Scholars Program.

    “An expansion of student eligibility under only certain TRIO programs would create confusion, as many grantees administer grants under more than one TRIO program,” officials wrote in the final rule. “Eligibility for only certain TRIO programs would increase administrative burden by requiring grantees to deny similarly situated noncitizens from participating under certain TRIO programs, but not others.”

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  • Higher education in England needs a special administration regime

    Higher education in England needs a special administration regime

    Extra government funding for the higher education sector in England means the debate about the prospect of an HE provider facing insolvency and a special administration regime has gone away, right?

    Unfortunately not. There is no additional government funding; in fact the additional financial support facilitated by the new Labour government so far is an increase to tuition fees for the next academic year for those students that universities can apply this to. It is estimated that the tuition cost per student is in excess of £14K per year, so the funding gap has not been closed. Add in increased National Insurance contributions and many HE providers will find themselves back where they are right now.

    It is a problem that there is no viable insolvency process for universities. But a special administration regime is not solely about “universities going bust.” In fact, such a regime, based on the existing FE special administration legislation, is much more about providing legal clarity for providers, stakeholders and students, than it is about an insolvency process for universities.

    Managing insolvency and market exit

    The vast majority of HE providers are not companies. This means that there is a lack of clarity as to whether current Companies and Insolvency legislation applies to those providers. For providers, that means that they cannot avail themselves of many insolvency processes that companies can, namely administration, company voluntary arrangements and voluntary liquidation. It is debatable whether they can propose a restructuring plan or be wound up by the court, but a fixed charge holder can appoint receivers over assets.

    Of these processes, the one most likely to assist a provider is administration, as it allows insolvency practitioners to trade an entity to maximise recoveries from creditors, usually through a business and asset sale.

    At best therefore, an HE provider might be able to be wound up by the court or have receivers appointed over its buildings. Neither of these two processes allows continued trading. Unlike administration, neither of these processes provides moratorium protection against creditor enforcement either. They are not therefore conducive to a distressed merger, teach out or transfer of students on an orderly basis.

    Whilst it is unlikely that special administration would enable survival of an institution, due to adverse PR in the market, it would provide a structure for a more orderly market exit, that does not currently exist for most providers.

    Protections for lenders

    In addition to there being no viable insolvency process for the majority of HE providers, there is also no viable enforcement route for secured lenders. That is a bad thing because if secured lenders have no route to recovering their money, then they are not going to be incentivised to lend more into the sector.

    If government funding is insufficient to plug funding gaps, providers will need alternative sources of finance. The most logical starting point is to ask their existing lenders. Yes, giving lenders more enforcement rights could lead to more enforcements, but those high street lenders in the sector are broadly supportive of the sector, and giving lenders the right to do something is empowering and does not necessarily mean that they will action this right.

    Lenders are not courting the negative press that would be generated by enforcing against a provider and most probably forcing a disorderly market exit. They are however looking for a clearer line to recovery, which, in turn, will hopefully result in a clearer line to funding for providers.

    Protections for students

    Students are obviously what HE providers are all about, but, if you are short of sleep and scour the Companies and Insolvency legislation, you will find no mention of them. If an HE provider gets into financial distress, then our advice is that the trustees should act in the best interest of all creditors. Students may well be creditors in respect of claims relating to potential termination of courses and/or having to move to another provider, potentially missing a year and waiting longer to enter the job market.

    However, the duty is to all creditors, not just some, and under the insolvency legislation, students have no better protection than any other creditor. Special administration would change that. The regime in the FE sector specifically provides for a predominant duty to act in the best interest of students and would enable the trustees to put students at the forefront of their minds in a time of financial distress.

    A special administration regime would therefore help trustees focus on the interest of students in a financially distressed situation, aligning them with the purposes of the OfS and charitable objects, where relevant.

    Protections for trustees

    Lastly, and probably most forcefully, a special administration regime would assist trustees of an HE provider in navigating a path for their institution in financial distress. As touched on above, it is not clear, for the vast majority of HE providers, whether the Companies and Insolvency legislation applies.

    It is possible that a university could be wound up by the court as an unregistered company. If it were, then the Companies and Insolvency legislation would apply. In those circumstances, the trustees could be personally liable if they fail to act in the best interest of creditors and/or do not have a reasonable belief that the HE provider could avoid an insolvency process.

    Joining a meeting of trustees to tell them that they could be personally liable, but it is not legally clear, is a very unsatisfactory experience; trust me, this is not a message they want to hear from their advisors.

    A special administration regime, applying the Companies and Insolvency legislation to all HE providers, regardless of their constitution or whether they are incorporated, would allow trustees to have a much clearer idea of the risks that they are taking and the approach that they should follow to protect stakeholders.

    In the event a special administration was to be brought in, we would hope it would not need to be applied to a market exit situation. Its real value, however, is in bringing greater legal clarity for lenders and trustees and more protection for students, in the current financial circumstances that HE providers find themselves in.

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