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Thursday Follow-Up
TPS Neg Reg timing, enrollment signs for Fall, and the Fordham filing in 2U bankruptcy case
Phil Hill
September 05, 2024
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TPS Expansion Updates
In late July I shared the US Department of Education’s (ED’s) blog post notifying its plan to revive third-party servicer (TPS) expansion through negotiated rulemaking and commented on the timing.
What this means from a schedule perspective is likely negotiated rulemaking for TPS in the August - October time period, followed by a proposed new set of rules via Notice of Proposed RuleMaking (NPRM) near the end of the calendar year. There would then need to be a public comment period before final rules would be issued.
Obviously, note that the Trump campaign as well as House Republicans have already said that they intend to kill any changes to the definition and scope of TPS in the regulations, so if Trump wins this rulemaking will likely be moot in terms of formal regulations.
There are obvious political questions to be asked about why ED is making this change in plans in a manner that could easily fail. I and others I respect have our theories, but the important point for now is that TPS expansion is still off the table this year in terms of actual regulations, but there will likely be a lot of activity through negotiated rulemaking before the election.
Based on further research, I was wrong on the timing. I can fairly definitely state now that TPS neg reg will not happen in 2024. Like the review of the bundled services exception (that enables OPM revenue-sharing), the TPS expansion at the federal level is off the table for the current Administration. It will only happen in 2025 if the Democrats win the presidential election. It is true that VP Harris could change the political makeup of ED appointees if she wins, but I doubt that she would change direction in this area.
It is ironic that for all the anti-OPM activity that we have seen at the federal level (GAO report, congressional letters, TPS expansion guidance then pullback, promises of bundled services exception review, etc, at the end of the Biden Administration we will have seen no actual changes in stated regulations or guidance.