NEGOTIATED RULEMAKING: FINAL CONSENSUS ON REGULATORY LANGUAGE AFFECTING ACCREDITATION

The negotiated rulemaking committee on accreditation reached final consensus on proposed regulations implementing the new accreditation provisions of the Higher Education Opportunity Act of 2008 (HEOA). This took place at the third and final meeting of nonfederal negotiators and U.S. Department of Education (USDE) officials in Washington, D.C. on May 18-19, 2009.

Regulations establish the means by which new accreditation provisions in the law are to be implemented. They are as important to institutions and accreditors as the law itself. The committee, meeting since March 2009, considered 16 regulatory proposals presented by USDE. The nonfederal negotiators devoted significant time and effort to clarifying and limiting the number and scope of proposed new regulations.

The attached chart describes the agreements that were reached in committee deliberations based on information available as of May 19. USDE has the authority, with an explanation, to make additional changes prior to issuing proposed rules for public comment, likely during the summer. 

A number of the proposed rules will alter the work of accrediting organizations and modify the institution-accreditor relationship. Some of the most important are: (A) the expanded role of USDE officials in making decisions about whether or not accreditors are to be recognized (Issues 7 and 8), (B) a requirement that accreditors assure that institutions track students in distance education or correspondence education offerings (Issue 10), (C) additional detailed expectations associated with monitoring institutions and programs for compliance (Issues 11 and 12), (D) (i) the opportunity for USDE to request information from accreditors and require that accreditors not inform an institution or program about the request and (ii) affirmation that all information that accreditors provide to USDE is subject to the Freedom of Information Act (Issue 14) and (E) additional, explicit rules with regard to due process and conduct of appeals that accreditors are to follow (Issue 15).

WHAT'S AHEAD

Based on information provided by USDE, the next steps in this process are:

• Proposed regulations, along with a draft preamble, will be sent to the negotiated rulemaking committee within the next several weeks. According to the protocol governing the negotiated rulemaking, no changes to the text (other than corrections) can be suggested by committee members. With regard to a preamble, USDE is not required to adopt or respond to the committee members’ comments on it.

• A Notice of Proposed Rulemaking, including the proposed regulations and the preamble, will be published in the Federal Register on or about July 31, 2009. Institutions, accreditors and other interested parties will have a 30-day period during which to comment.

• Final regulations must be published in the Federal Register by November 1, 2009 in order for the regulations to become effective on July 1, 2010.

• The National Advisory Committee on Institutional Quality and Integrity (NACIQI) that advises the Secretary of Education on decisions to recognize accrediting organizations has not met since June 2008. USDE has indicated that it is likely that the next meeting will not take place before July 1, 2010 when the new regulations are in place, although this is subject to change. HEOA requires that the U.S. Senate, House of Representatives and USDE each appoint six members to serve six-year terms on NACIQI. In this interim, accrediting organizations retain their recognition status. USDE officials continue to have the authority to raise questions about an accreditor’s compliance with standards.

• A letter from USDE is to be sent to federally recognized accrediting organizations asking what they are doing to comply with regulations. At this writing, the scope of the information to be sought by USDE (e.g., compliance with proposed regulations, new regulation, new law) and the timetable for response by accreditors have not been announced.

This Update informs 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 Vice President for Government Affairs, at friis@chea.org or at (202) 955-6126.

Copyright 2009, Council for Higher Education Accreditation. All rights reserved.