Negotiated Rulemaking: Important to CHEA Member Institutions and CHEA-Recognized Accreditors

Publication Number 1 March 1, 2009

The new CHEA Federal Update will provide information on federal policy developments affecting accreditation, self-regulation and peer review. As with the earlier HEA Update used throughout the reauthorization of the Higher Education Act, the Federal Update will keep CHEA institutional members, CHEA-recognized accreditors and the public informed about significant actions by the federal government as these relate to accreditation. The early Update issues will focus on the negotiated rulemaking process for accreditation that begins March 4, 2009.

Negotiated Rulemaking: Important to CHEA Member Institutions and CHEA-Recognized Accreditors

"Negotiated Rulemaking" is a committee process by which the federal government consults with interested parties to develop new regulations to accompany new or current law. The current rulemaking has been called in response to the Higher Education Opportunity Act of 2008 (HEOA), signed into law on August 14, 2008. The committee members, federal and nonfederal negotiators, are selected by the U.S. Department of Education (USDE), based on nominations received through a public notice. The negotiated rulemaking process is led by the federal negotiator and managed by USDE.

The new regulations that are developed can and do affect all federally reviewed ("recognized") accrediting organizations. Moreover, what happens to accreditors happens to institutions. The obligations placed on accreditors through negotiated rulemaking are intended to regulate not only these organizations but also the programs, colleges and universities they accredit. This involves the colleges, universities and programs accredited by 19 institutional accrediting organizations, including regional accreditors, national faith-related accreditors, national career-related accreditors and 39 programmatic accreditors such as law, medicine, a significant number of health-related accreditors and others.


On December 31, 2008, USDE announced the establishment of five negotiated rulemaking committees. Once the committees have completed their work, proposed regulations are circulated to the public for comment. Following the comment period, USDE can make additional changes and then issue the new rules. Additional information about the negotiated rulemaking may be found in the Federal Register.

The five committees are 1) loans and lender/general loan issues 2) loans and school-based loan issues 3) accreditation 4) discretionary grants and 5) general and non-loan programmatic issues. The committee on accreditation will meet in Washington, D.C. on March 4-6, April 21-23 and May 18-20, 2009. A list of committee members can be found on USDE’s Website.


For the accreditation committee, USDE issued 16 proposals during the week of February 16. The proposals constitute a broad agenda, addressing either accreditation standards in the law, the operating procedures of accrediting organizations or definitions related to both standards and operating procedures. A number of the proposals emerge from HEOA and focus on these areas:

  • distance education
  • due process and appeals
  • teach-out plan approval
  • summary of agency actions
  • accreditation team members
  • growth monitoring
  • transfer of credit policies and criteria
  • student achievement

For the proposals that address transfer of credit and student achievement, action is confined to placing statutory language in regulation. HEOA precludes further USDE regulation in these areas.

USDE also put forth proposals that do not derive from HEOA, but either were identified during the earlier 2007 negotiated rulemaking on accreditation that did not result in published regulations or concern other topics.

  • recognition of any accreditor when not fully compliant
  • compliance within 12 months
  • direct assessment program definition
  • definition of recognition
  • substantive change
  • recordkeeping
  • confidentiality

Two additional proposals derive from both HEOA and USDE: (1) recognition procedures and (2) monitoring throughout the accreditation period. The full list of proposals put forward by USDE may be modified once the committee on accreditation meets.


As CHEA reviewed the early USDE proposals, several questions emerged. These focus on academic quality, cost and the necessity of expanded regulation of higher education institutions and accreditors:

  • Quality. How will some or all of the proposals advance the quality assurance and quality improvement capacity of accrediting organizations? How will they advance academic quality for institutions and programs that are accredited?
  • Cost. What will be the financial impact of the proposals on both accreditors and institutions? Who will be responsible for any additional costs associated with the implementation of additional regulations?
  • Expanded Regulation. To the extent that these proposals represent the expansion of government scrutiny of higher education through accreditation, what problems will be solved? Is additional regulation required by the HEOA?

These questions need to be asked by CHEA member college and university presidents, chief academic officers and CHEA-recognized accreditors throughout the negotiated rulemaking process.

CHEA already offered some reaction to a number of the subject areas in the current proposals as these topics were addressed during and immediately after the reauthorization that resulted in HEOA. These were discussed in the HEA Update Number 45, as well as in the October 30, 2008 issue of Inside Accreditation:

Distance Education. The HEOA calls for monitoring attendance of distance education students. The issues for attendant regulation are how to pay for any costs associated with additional monitoring of attendance of students in distance education programs called for in the new law and how to maintain security and privacy essential for any monitoring.

Due Process and Appeals. The HEOA changes the terms and conditions governing how accrediting organizations can impose negative sanctions (e.g., warning, notice, show cause, termination of accreditation). The new law also changes the accreditation appeals process to increase the role of legal counsel for institutions engaged in appeals. The issues here are how to assure that any attendant regulations do not contribute to an accreditation process that is less a peer review experience and more a legal proceeding.

Growth Monitoring. The HEOA requires that accrediting organizations monitor the "significant" growth of institutions. The issue for attendant regulation is what counts as "significant" growth and when or if such growth can lead to additional reviews by accreditors, or the denial or removal of accredited status.

Summary of Agency Actions. The HEOA requires that accreditors expand the information about accreditation decisions that is provided the public and routinely (vs. "on demand") make this information available. The issue for attendant regulation is how far it goes in requiring all work products of accreditation review (self-study, team reports, other documents) to become public documents.

Confidentiality. A proposal brought forward by USDE during the 2007 negotiated rulemaking and presented in the current negotiated rulemaking addresses whether information considered confidential by an accrediting organization would be treated as confidential by USDE. In 2007, USDE took the position that it was required to make public the information received from the accreditor, independent of the confidentiality assurances with which the material was treated by the organization. The issue for attendant regulation is the impact of removal of confidentiality on the accreditation process that relies so heavily on peer review.

CHEA will closely follow the negotiated rulemaking on accreditation and will keep institutional members, CHEA-recognized accreditors and the public informed about the development of regulations implementing the Higher Education Opportunity Act of 2008. CHEA also will continue to be a strong advocate of institutional leadership for academic quality and accountability.