In early January, the U.S. Department of Education (ED) issued its semi-annual Regulatory Agenda – an
updated list of all those rules it plans to propose or finalize in the coming months. The list covers a wide
range of topics, like plans to initiate “Negotiated Rulemaking” several higher education fields related to
federal student loans. ED will also move prior discussions in negotiated rulemaking to the “proposed
rule” stage.
Administrative rules that impact all federal education grants, including the Uniform Administrative
Requirement, Cost Principles, Audit Requirements, and the Education Department General
Administrative Regulations (EDGAR) will see some updates. Among the topics ED plans to add are
clarifying subgrant authority under ESSER and providing more information on how ED determines
continuation grant recipients. Both sets of updates will contain technical corrections and reflect new
statutory requirements and references.
More substantive regulations in K-12 education will focus on simplifying the link between IDEA and
school-based Medicaid services, adjusting allocation rules for the Rural Educational Achievement
Program (REAP) to reflect a new understanding between ED and Congress, and correcting technical
errors to rules on select topics including the Impact Aid program and the Family Educational Rights and
Privacy Act (FERPA).
The most controversial rules will likely be the new regulations on Title IX of the Education Amendments
of 1972. The Department of Education plans to release its new final rule in discrimination in educational
programs in May, evidently with the goal of making those regulations effective by the fall of 2023. But
because the contents of the proposed rules, which would prohibit discrimination on the basis of gender
identity and sexual orientation, were controversial and conflicted with a number of State laws, litigation
on the final rule is likely to delay its implementation by weeks or even months. Another Title IX rule, this
one on participation in athletics programs and how it intersects with gender identity and sexual
orientation, was expected to be published in draft form this December. However, the federal
government has not started the last step of the regulatory clearance process – pre-release meetings
with the Office of Management and Budget – at the time of this writing.
In fact, many of these timelines seem optimistic. The fact that the agency posted its fall 2022 regulatory
agenda in January of 2023 suggests that the anticipated action dates will be delayed one to two months
or more as we go into the new year. But the Department of Education is on a tight timeline to publish
the rules and safeguard them against the Congressional Review Act (CRA). Under the CRA, an incoming
Congress and President may strike from the Federal Register any rule published by any agency in the
previous 60 legislative days. This means that any rule finalized in approximately the last six months of
2023 is in danger of being overturned should a new President and Congress decide to do so.
You can track ED’s regulatory agenda here.
