On May 16, 2023, the United States Department of Education (the "Department") updated its Third Party Servicer Guidance issued in GEN-23-03. The new Dear Colleague Letter ("DCL") officially delays indefinitely the previously issued guidance. It also removes the prohibition on contracts between institutions of higher education and foreign owned or operated third party servicers.
This DCL replaces the prior update posted in a blog by Undersecretary Kvaal, in which he commented that the department was effectively delaying the prior DCL. This formalizes that announcement.
The DCL indicates that institutions will be provided with at least six (6) months advance notice before the effective date of any future formal guidance. The deadlines for audit and contractual requirements in any new guidance will be delayed until the institution's first fiscal year beginning after the effective date for the reporting requirements. We read this to mean that institutions and Third Party Servicers will not be required to retroactively implement the new guidance.
Finally, the Department also clarified that institutions may contract with foreign owned Third Party Servicers. It rescinded earlier guidance on this issue. The Department did note, however, that this issue may be subject to rulemaking in the future.
Institutions and potential Third Party Servicers should continue to evaluate how they may be impacted by new regulation or guidance in this area. It is clear that the Department is intent on increasing its oversight of Third Party Servicers by expanding the scope of services that fall into the Third Party Servicer bucket in the Higher Education Act. In addition, the Department has identified Third-Party Servicers and Related Issues for rulemaking in the fall of 2023. Concerned parties should continue to monitor developments from the Department as they arise over the next several months.
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