Number 3, April 17, 2009

SECOND SESSION OF NEGOTIATED RULEMAKING ON ACCREDITATION
TO BE HELD APRIL 21-23, 2009

The second session of the negotiated rulemaking on accreditation will be held in Washington, D.C. on April 21-23. Nonfederal negotiators will meet with representatives from the U.S. Department of Education (USDE) to continue discussion of the 16 proposals USDE put forward at the March 2009 meeting, as reported in the CHEA Federal Update #2. The April 21-23 meeting agenda can be found on USDE's Website.

"Negotiated rulemaking" is the process used by the federal government to consult with interested parties in developing regulations to implement new law or to accompany existing law. In this case, the negotiated rulemaking will address proposed regulations implementing the Higher Education Opportunity Act of 2008 (HEOA). The negotiated rulemaking committee is led by a federal negotiator and managed by USDE; the nonfederal negotiators were selected by USDE from nominees received following a public notice.

More information on the negotiated rulemaking process and the establishment of the current negotiated rulemaking on accreditation can be found in the CHEA Federal Update #1.

DRAFT REGULATORY TEXT: ISSUES TO MONITOR

In preparation for the second session of the negotiated rulemaking, USDE provided draft regulatory text covering the 16 issues agreed to by the committee at the first session. The draft regulatory text's language covers a broad range of areas affecting how accreditation operates. This language touches on how accreditation interacts with institutions and the independence of accreditation.

CHEA has reviewed the draft regulatory text for each of the issues to be addressed, seeking to understand the impact of proposed changes. While the proposed regulatory language is voluminous and complex, several issues stand out as having significant implications for colleges and universities. CHEA is particularly focused on the following:

Confidentiality and the Freedom of Information Act (FOIA) – The draft regulatory language raises questions about whether the information that institutions provide in the course of a review (considered confidential by the accrediting organizations) will be treated as confidential once in the hands of USDE. The focus here is the impact of FOIA on accrediting organization records obtained by USDE. (Issues 7 & 8)

Prohibition on Notification – The draft regulatory text describes circumstances under which USDE may request that an accreditor provide information about an institution and its performance – but does not allow the accreditor to contact the institution regarding USDE's inquiry. The issues here are how to address the potential problem that has been identified and any implications for the trust relationship essential to the institution-accreditor relationship. (Issue 14)

Growth Monitoring – The draft text for the new requirement in HEOA that accreditors monitor enrollment growth is extensive. It needs to be examined carefully to assure that regulations are not in conflict with the new statutory provision that precludes regulating on student achievement and states that institutions are to set standards in this area. For example, the proposed regulatory text includes language about monitoring "key data and performance indicators" and "measures of student success." (Issues 11 & 12)

Expanded USDE Authority for Recognition Decisions – The draft regulatory text expands the authority of USDE to make accrediting decisions independent of the National Advisory Committee on Institutional Quality and Integrity (NACIQI). What is the likely impact on the extent and frequency of federal review of accrediting organizations? (Issues 7 & 8)

OTHER PROPOSALS

With regard to other proposals that have been put forward, the regulatory language related to Accreditation Team Members (Issue 2), Student Achievement (Issue 3) and Transfer of Credit (Issue 4) closely follows the statutory language. The draft regulatory text for a number of the other issues needs review to assure that, although the text is more expansive, it remains substantially within the framework of HEOA or existing regulations.

CHEA will provide another Update following the April 21-23 meeting. The next meeting of the negotiated rulemaking committee is May 18-20, 2009.

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As we have during the consideration and passage of the HEOA and the negotiated rulemaking on accreditation to date, CHEA will follow the process closely and will keep institutional members, CHEA-recognized accreditors and the public informed. CHEA also will continue to serve as a strong advocate and outspoken supporter of institutional leadership for academic quality and accountability.




This Update will inform CHEA members and interested parties on federal policy developments related to self-regulation and peer review. Please direct any inquiries or comments to Jan Friis, CHEA's Vice President for Government Affairs, at friis@chea.org or at (202) 955-6126.

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