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Sweeping Changes Proposed for Federal Title IX Legislation

Client Alert
June 24, 2022

June 23, 2022, marked the 50th anniversary of Title IX — the federal civil rights legislation enacted to protect students from sex-based discrimination in educational programs and activities that receive federal financial assistance. The anniversary was further marked by an announcement from the Biden administration of its intent to overhaul the landmark law, in part, by reinstating certain provisions removed, or otherwise modified, by the former administration.

In conjunction with the Department of Education, President Biden announced the proposed amendments to Title IX would have the impact of advancing “educational equity and opportunity”[1] for students across the country including, without limitation, those in the LGBTQIA+ community.  Specifically, the revised regulations are anticipated to clarify Title IX’s text to extend protections to students on the basis of sexual orientation, gender identity, and sex characteristics and, moreover, extend protection to both students and employees who are pregnant and/or have pregnancy-related condition(s).

The proposed amendments would also require schools to respond promptly to all complaints of sex discrimination with a fair and reliable process that includes trained, unbiased Title IX coordinators, investigators, and decisionmakers to evaluate the evidence. Notably, the proposals would effectively remove the requirement that schools wait for a formal complaint prior to acting — thereby allowing schools to investigate and sanction sexual misconduct complaints more promptly. The proposals also allow informal resolution of an incident without the submission of a formal complaint (a formal complaint is a prerequisite under the current regulations).

Moreover, following investigation, decisionmakers may soon be subject to a revised, heightened threshold for standard of proof based on the evidence — the clear and convincing evidence standard, meaning that the evidence presented must be “highly” and substantially more probable to be true rather than untrue — depending on what standard the school uses in other comparable proceedings.

In addition to the above, the proposed regulations are generally intended to strengthen protections from retaliation for those who exercise Title IX rights, require schools to engage in and/or offer supportive measures to parties involved in Title IX actions, and improve the adaptability of the Title IX framework to be applied fully and fairly in all educational environments.

The proposed regulations also revert the definition of sexual harassment back to “unwelcome sex-based conduct that creates a hostile environment by denying or limiting a person’s ability to participate in a school’s education program or activity. This would impose significant changes to the current rule, which only prohibits unwelcome sex-based misconduct if it is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”

Practically speaking, the proposed regulations no longer require live hearings for Title IX investigations. This is a significant change from the August 2020 regulations, which directed higher education institutions to conduct live hearings with cross-examination following the investigation. Under the August 2020 regulations, a decisionmaker was prohibited from considering any statements of parties or witnesses that were not subject to cross-examination, and therefore not tested for credibility. Ultimately, the proposed regulations, by way of eliminating the live hearing requirement, could allow decisionmakers to consider more comprehensive evidence.

To the extent a live hearing is held, the proposed regulations also require higher education institutions to allow students who participate in the live hearing to do so remotely, if they so choose.

The proposed amendments will undergo a period of public comment for the next 60 days. The Education Department will then address each point in writing before the regulations can be finalized.

[1] See U.S. Department of Justice Press Release, “The U.S. Department of Education Releases Proposed Changes to Title IX Regulations, Invites Public Comment,” published June 23, 2022.

For additional information about the revised regulations, or how they may impact your institution, please reach out to one of Brennan, Manna & Diamond’s trained Title IX investigators and advisors, Monica Andress at mbandress@bmdllc.com, Krista Warren at kdwarren@bmdllc.com, Bryan Meek at bmeek@bmdllc.com, or Matt Duncan at mrduncan@bmdllc.com.

Monica Andresskrista warrenCivil RightsTitle IXLegislationBrennan Manna Diamond
Client Alert

Your Workplace Under Biden

November 9, 2020This is my favorite recurring post – Predictions of How a New Administration Will Affect Your Workplace. Four years ago, we accurately called the emasculation of the 2016 proposed FLSA Overtime Rules (the salary exemption threshold was set at $35,568 in 2019, rather than $47,476 as proposed), we forecasted a conservative shift of the NLRB and its results (a roll-back of employee rights, social media policy evaluations, and joint employer rules), and we nailed the likelihood of multiple conservative appointments to the United States Supreme Court and its long-term effects (although I completely failed to predict that my ND classmate Amy Coney Barrett would fill the final vacancy during the Trump administration). This time, the L+E Practice of BMD has decided to make it a group effort at predicting what will happen, what probably happen, and what might happen under President Biden. As always, please save this in your important files and pull it out four (or eight) years from now to judge our accuracy.Client Alert

HHS Provider Relief Funds Reporting Requirements: Important Updates Every Provider Should Know

November 4, 2020HHS continues to revise its reporting requirements for the use of the Provider Relief Funds. Providers with more than $10,000 in Provider Relief Fund payments must report on the use of the funds through December 31, 2020. The reporting window will begin on January 15, 2021 and providers must complete reporting obligations for FY 2020 by February 15, 2021 through a portal designed by HHS. However, providers that have unexpended funds as of December 31, 2020, will have an additional 6 months to use the remaining funds through June 30, 2021. These providers must submit a second and final report no later than July 31, 2021.Client Alert

Should I Apply for Phase 3 Funds? Important Considerations Every Provider Should Know

November 2, 2020On October 1, 2020, the Department of Health and Human Services (“HHS”) announced an additional $20 billion in new funding for providers through a Phase 3 distribution. Importantly, providers that previously received HHS Provider Relief Funds or already received payments of approximately 2% of annual revenue from patient care are eligible to apply. Eligible providers have until November 6, 2020 to apply for these Phase 3 Funds. However, the question from providers continues to be: Should I Apply for Phase 3 Funds?Client Alert

CISA Ransomware Practices

October 29, 2020On October 28, 2020, the United States Cybersecurity and Infrastructure Security Agency (CISA) issued an alert warning of imminent threats to US hospitals and healthcare providers. The specific threat involves RYUK Ransomware attacks. RYUK is a novel ransomware that goes undetected by commercial anti-virus/malware detection programs. Once deployed, RYUK encrypts all data and disables systems. In short, it cripples all functionality down to phone systems and automated doors. Healthcare providers should alert their employees to remain hyper-vigilant and report any suspicious activity seen in email or on networks. It has been reported healthcare providers in New York, Pennsylvania and Oregon have been targeted in the last 48 hours. If your organization encounters issues, BMD can assist in mobilizing a response team and has contacts with forensic IT firms that are familiar with RYUK. It is advisable to engage professionals with experience dealing with this specific threat.Client Alert

HHS Announces an Additional $20 Billion In Provider Relief Grants

October 5, 2020The U.S. Department of Health and Human Services (“HHS”) announced an additional $20 billion in new funding for providers on October 1, 2020. Eligible providers include those that have already received Provider Relief Fund payments as well as previously ineligible providers, such as those who began practicing in 2020, and an expanded group of behavioral health providers confronting the emergence of increased mental health and substance use issues exacerbated by the pandemic. The new Phase 3 General Distribution is designed to balance an equitable payment of 2% of annual revenue from patient care for all applicants plus an add-on payment to account for revenue losses and expenses attributable to COVID-19.
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