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- ED Promises to Revise the TPS Expansion in a Blog Post
ED Promises to Revise the TPS Expansion in a Blog Post
Previous Dear Colleague Letters remain in effect
Did I just read an attempt to regulate through a blog post? I think I did.
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The US Department of Education (ED) released a blog post today that in effect pulls back the recent Dear Colleague Letter (DCL) guidance that expanded the definition of third-party servicers (TPS). Given the challenge of ED regulating through guidance, it adds another layer of complexity to comment on guidance through a blog post. Nevertheless, this is good news.
There are three key parts of this announcement:
ED will revise DCL 23-03 (indirectly saying that they will not rescind it), with the biggest change being the removal of the exclusion of foreign ownership of a TPS.
The effective date of the revised DCL 23-03 is no longer September 1st and will now be “at least six months after its publication” of the changes.
ED listed several activities in the blog post that it does NOT consider TPS activities:
On one hand, all the changes mentioned in the blog post are improvements over the submitted DCL 23-03. On the other hand, this post clearly shows that ED plans to thread the needle and keep as many of the TPS expansions in place that they can get away with. ED is committed to the chosen approach, despite the overwhelming feedback through public comments.
The official DCL has not yet been updated. I will say that if ED thinks a blog post clarification of regulatory guidance is sufficient, rather than rescinding or updating the DCL itself, then we will have another mistake to contend with. I hope I am wrong, but it looks like ED is just winging it with process, trying to buy time until they can revise the DCL but keep as much as possible. This introduction of blog posts into the mix is ridiculous. Institutions and vendors need clarity, not additional contradictory informal statements. Hopefully the actual revision process will go through negotiated rulemaking.
In a premium newsletter on the 2U lawsuit against ED and Secretary Cardona, I wrote:
I cannot say whether the lawsuit directly caused ED to write this blog post, but I will say that the delayed effective date and promises for revision in effect achieves the stay requested in the lawsuit.
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