Number 8, December 15, 2009


U.S. Department of Education Holds Second Meeting of 2009-2010 Negotiated Rulemaking Committee on Program Integrity

The U.S. Department of Education (USDE) negotiated rulemaking committee on Program Integrity held its second meeting on December 7-11, 2009 in Washington, D.C. USDE established this negotiated rulemaking to prepare additional proposed regulations under Title IV of the Higher Education Act (HEA). This session follows the first committee meeting, held November 2-6, that focused on a “workshop” review of 14 issue papers presented to the committee by USDE. This is the second round of negotiated rulemaking involving accreditation that USDE has held in 2009.

Prior to the meeting, USDE provided 14 new working documents to the committee as the basis for discussion. These documents revise and expand the original issue papers. Most of the revised issue papers include draft regulatory language.

If adopted, the draft regulations for 5 of the 14 issues could have an impact on accrediting organizations and the institutions and programs they accredit. What follows is a brief description of each issue and how it would affect accreditation, based on the discussions to date.

  • Misrepresentation of Information to Students and Prospective Students (Issue 3). USDE’s draft regulatory language expands the current rules on misrepresentation of information by enlarging the list of parties to whom false, erroneous or misleading statements may not be made. This list would now include accrediting organizations. The list of misrepresentations would be expanded to require accurate representation of accredited status. USDE expressed interest in requiring institutions to publish a list of programs eligible for federal aid and those that are not, as well as a list of the conditions governing transfer of credit. There was also discussion that accreditors would monitor misrepresentation.


  • State Authorization as a Component of Institutional Eligibility (Issue 5). USDE is seeking to define what constitutes state authorization of an institution to operate and grant certifications or degrees for Title IV eligibility. The proposed regulatory language calls for states to monitor institutions to assure academic quality, which may or may not involve accrediting organizations. For accreditors, this raises questions about the potential for overlap and confusion of activities and responsibilities among the federal government, states and accrediting organizations.


  • Definition of a Credit Hour (Issue 7). USDE’s draft regulatory language would, for the first time, define “credit hour” in the federal rules governing accreditation and call upon accrediting organizations to, in some fashion, evaluate and approve or confirm that this definition is being used by institutions. Discussion focused on why USDE requires a definition of credit hour, which heretofore has been managed by higher education. Further discussion included acknowledging that while a definition of credit hour may not be applicable to certain courses or programs, the institution would be responsible for establishing an equivalent measure for academic work.


  • Agreements Between Institutions of Higher Education (Issue 8). USDE’s proposed regulations address agreements between institutions where more than 50 percent of one accredited institution’s program is provided by another accredited institution. The proposed rules would require accrediting organizations to treat such agreements as instances of substantive change and monitor agreements between institutions covering areas such as the portion of the program that the “home” institution is not providing, the method of delivery of that portion of the program and the authorization of the institution to offer the program in the format being provided. USDE’s draft regulatory language also requires additional disclosures to students concerning such agreements.


  • Satisfactory Academic Progress (Issue #10). While no proposed regulatory language was offered in the revised issue paper, USDE continues to ask questions to gather information that can be used to draft proposed regulations. A central consideration for USDE is whether to modify current requirements or add new requirements to existing satisfactory academic progress regulations regarding students who are eligible to receive Title IV and HEA program funds. Accreditors may be called upon to monitor any modified or new requirements. Discussion focused on the 2.0 grade average as the minimum level to show academic progress, completion of academic work within 150% of the normal completion time, rate of completion and student appeals of a determination that the student is not making satisfactory progress.

While not directly addressing accreditation, two other proposed regulations are likely to have an important impact on CHEA member institutions. These are incentive compensation and gainful employment. The draft regulatory language on incentive compensation removes all “safe harbor” provisions from existing regulations in this area. “Safe harbors” are exceptions to the law prohibiting college recruiters and admissions officers from being paid on the basis of their success in enrolling students. Several nonfederal negotiators are preparing suggested language to reinsert some of the safe harbors into the regulations, which will provide the additional needed guidance.

The committee also discussed a proposal that institutions be required to demonstrate that a given percentage of graduates find “gainful employment.” USDE proposed requiring that institutions show a “reasonable relationship” between the cost of a program and the salaries of program graduates, as well as between graduates’ starting salaries and debt load.

The final meeting of the negotiated rulemaking committee will be held January 25-29, 2010.

CHEA will continue to follow this negotiated rulemaking process closely and will keep institutional members, CHEA-recognized accrediting organizations and the public informed on any developments.

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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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