- On EdTech Newsletter
- Posts
- Compare and Contrast, DCL edition
Compare and Contrast, DCL edition
How we got to this point debating whether rev share will be allowed
Phil Hill
March 14, 2023
For a brief moment over the weekend, I experienced a bizarre experience online.
@GoldieStandard@kevincarey1@jselingo@EvieCummings23 While I am quite uncomfortable with the idea of a Twitter debate leading to agreement . . .
I agree. Process in 2011 was flawed, and process in 2023 is flawed (but greater in impact if they don't withdraw or change).
— Phil Hill (@PhilOnEdTech)
7:02 PM • Mar 12, 2023
That discussion centered on whether the 2023 TPS Expansion guidance (Dear Colleague Letter 23-03) followed a similar process to the 2011 Bundled Services guidance (DCL 11-05). Let’s look deeper.
Was this forwarded to you by a friend? Sign up, and get your own copy of the news that mattered sent to your inbox every week. Sign up for the On EdTech newsletter
Feel free to forward this newsletter as On EdTech+ is free through May 2023. Upgrade to the On EdTech+ newsletter
On to the update.
When talking about process, it is worth establishing the different levels that go into federal rules. The following is intended to be brief and establish some basics while not fully exploring all of the nuances of the statutes and guidance.
Definitions and Processes
From Wikipedia (naturally):
Congress frequently delegates authority to an executive branch agency to issue regulations to govern some sphere. These statutes are called "enabling legislation." Enabling legislation typically has two parts: a substantive scope (typically using language such as "The Secretary shall promulgate regulations to [accomplish some purpose or within some scope]" and (b) procedural requirements (typically to invoke rulemaking requirements of the Administrative Procedure Act (APA), Paperwork Reduction Act (PRA,codified at 44 U.S.C. §§ 3501–3521), Regulatory Flexibility Act (RFA, codified at 5 U.S.C. §§ 601–612), and several executive orders (primarily Executive Order 12866).[2] Generally, each of these laws requires a process that includes (a) publication of the proposed rules in a notice of proposed rulemaking (NPRM), (b) certain cost-benefit analyses, and (c) request for public comment and participation in the decisionmaking, and (c) adoption and publication of the final rule, via the Federal Register.[2][3] Rulemaking culminates in the inclusion of a regulation in the Code of Federal Regulations.
The Government Accountability Office (GAO) offered a concise definition of sub-regulatory guidance in its 2015 report on guidance processes used at four federal agencies, including the Department of Education (ED).
Guidance documents, sometimes referred to as sub-regulatory guidance, set forth policy on or interpret statutory, regulatory, or technical issues and come in a variety of formats and names. Agencies rely on guidance documents—which are not legally binding—to clarify statutes or regulatory text and to inform the public about complex policy implementation topics. The number of guidance documents related to regulations issued by agencies has often been reported to outnumber the agency regulations that these documents can help explain. However, little is known about internal agency procedures for developing this guidance and the strategies agencies use to solicit public comment and feedback on these documents.1
Congress and affected parties often request additional guidance to elaborate on implementation of a statute or regulation. At the same time, concerns have been raised about the level of oversight for agencies’ guidance, whether agencies seek feedback from affected parties on guidance, and how to ensure that agencies do not issue guidance when they should undertake rulemaking.2 Given both the importance of guidance and the concerns about its use, in 2007 the Office of Management and Budget (OMB) recognized the need for good guidance practices. In particular, OMB established review processes for the documents with the most broad and substantial impact.3
Dear Colleague Letters (DCL) such as those in this discussion represent a form of sub-regulatory guidance that is interpretive in nature, seeking to clarify existing regulations. DCLs can be updated or even rescinded by the same agency that released earlier versions, often arising from a new administration coming into power.
Key to this discussion:
Legislation requires an act of congress and the president.
Regulation requires a formal rulemaking process.
Guidance is not legally binding, but it does show the agency’s interpretation of regulations. As described by the GAO, agencies should follow established internal processes when issuing guidance.
Higher Education Context
In US higher education, the legislation of interest is the Higher Education Act (HEA), initially passed in 1965 and re-authorized in 1968, 1972, 1976, 1980, 1986, 1992, 1998, and 2008. The 1992 reauthorization of the HEA included a new provision banning incentive-based compensation, largely targeted at recruiting practices at for-profit institutions. In 2002, ED added 12 “safe harbors” for activities that would not be considered incentive compensation, and two of these safe harbors dealt with tuition revenue sharing and enabled the OPM market.