Updated: May 19, 2023
On May 16, the U.S. Department of Education published a further update to its Third-Party Servicer (TPS) guidance that states in part: “we are rescinding our 2023 and prior guidance . . . prohibiting contracts between colleges and foreign-owned or operated servicers.” This update makes official the Department’s blog post statement of April 11, 2023.
As such, the Dear Colleague Letter (GEN-23-03) that had expanded the definition of a TPS will not go into effect, and the previously standing prohibition on institutions contracting with a foreign-owned or operated entity is removed. As a result, D2L can continue to confidently assure the U.S. market that there is no foreign or other limitation impacting our ability to serve U.S. institutions and partners.
D2L will continue to keep the Brightspace community apprised of any material developments. For further questions, please reach out to [email protected].
Updated: April 12, 2023
On April 11, 2023, the U.S. Department of Education posted a further update on Third-Party Servicer (TPS) guidance that states, in part: “We intend to remove the provision of the guidance document pertaining to foreign ownership of a third-party servicer.”
This update removes any doubt about D2L’s ability to continue to serve our partners and customers across the United States without limitations. D2L appreciates the Department’s timely response to the related questions and concerns raised by D2L and institutions of higher education.
The Department also stated its intent to: “consider clarifying and narrowing the scope of the guidance in several areas, including software and computer services, student retention, and instructional content.” We remain confident that D2L Brightspace and related services should not be captured as a TPS activity and remains outside the scope of any further updated guidance.
Finally, the Department indicated its intent to issue further revised guidance at some point in the future, but that will not include the prior provision pertaining to foreign ownership of a third-party servicer. As such, the September 1, 2023 effectiveness date is delayed to a date uncertain, and the long-standing guidance (pre 2/15/23) is reinstated.
D2L will continue to keep the Brightspace community apprised of any material developments. See our updated FAQ below.
For further questions or if you’d like to discuss this issue further, please reach out to [email protected].
Updated: March 1, 2023
On February 28, 2023, the U.S. Department of Education updated its recent February 15, 2023 Dear Colleague Letter (DCL) regarding a “Third Party Servicer” (TPS) under the Higher Education Act (HEA), Title IV.
Most notably, the Department has delayed the effective date of new guidance and related reporting requirements until September 1, 2023. In so doing, the Department notes its wishes that parties have “a clear understanding of the requirements” and “a reasonable amount of time to comply.”
D2L appreciates the Department’s actions that recognize the ambiguity and disruptive impact of the guidance and its initial effectiveness date. D2L maintains our views as expressed in our February 23, 2023 statement (See Below). We remain confident that D2L Brightspace and related services are outside the scope of the updated, non-binding guidance. The Department’s action and statement suggest their recognition that the guidance is, or is being interpreted as, overly broad regarding ed tech and other services.
D2L expects further clarity from the Department over the coming months ahead of the new September 1, 2023 effective date. The Department is accepting public comments through March 28, 2023, and may revise the TPS guidance based on feedback received. D2L will continue to raise questions, concerns and recommendations and encourages our clients and partners to also provide comment to the Department.
We want to again reassure our partners and customers in the United States that D2L will continue providing our products with the same level of high-quality service they have come to expect.
D2L will continue to monitor this effort and keep the Brightspace community apprised of any material developments.
For further questions or if you’d like to discuss this issue further, please reach out to [email protected].
February 23, 2023
On February 15, 2023, the U.S. Department of Education released revised guidance regarding the activities that make service providers to an institution of higher education a “Third Party Servicer” (TPS) regulated by the Higher Education Act (HEA), Title IV.
Given the breadth of these ambiguous changes, D2L has received several inquiries about the company’s ability to continue providing its products and services to U.S. institutions. We are confident that D2L Brightspace and related services are outside the scope of the updated, non-binding guidance. We want to reassure our partners and customers in the United States that D2L will continue providing our products with the same level of high-quality service they have come to expect.
The Department’s announcement is ambiguous, and whether the guidance is compatible with the existing definitions of TPS under the HEA and the Department’s own regulations is, at the very least, debatable. However, D2L is confident the learning management system it provides to U.S. institutions is not captured by the new guidance.
Through its Brightspace platform, D2L does not operate on behalf of institutions to deliver instruction; control educational content, course materials, or curriculum; assess student learning; advise students; establish any attendance interventions or notification rules; recruit or assist students in their enrollment applications; or maintain, view, or update any Title IV-related records. Brightspace is a platform for institutions which maintain total control over all aspects of Title IV-eligible program design, delivery, instruction, measurement, and other program parameters.
D2L expects further clarity from the Department that will ensure relationships like ours with U.S. institutions will not be negatively affected. The Department is accepting public comments through March 17, 2023, and may revise the TPS guidance based on feedback received. D2L will continue to monitor this effort and keep the D2L community apprised of any material developments.
For further questions or if you’d like to discuss this issue further, please reach out to [email protected].