Thirty-Day Comment Period for Proposed Accreditation Regulations

On August 6, 2009, the U.S. Department of Education (USDE) published proposed regulations addressing changes in accreditation resulting from the Higher Education Opportunity Act (HEOA) that became law in August 2008. USDE negotiated the new rules through a rulemaking panel established in February 2009 that met in March, April and May. The rules are published in a “Notice of Proposed Rulemaking” in the Federal Register that also includes supplementary information discussing the regulatory changes and includes a description of the negotiated rulemaking process.

The public now has a 30-day period in which to comment on the rules (until September 8, 2009). Information about how to submit comments can be found in the opening section of the “Notice of Proposed Rulemaking” in the Federal Register. USDE will review comments, make any additional changes it deems appropriate and publish the final version of the new regulations in the Federal Register by November 1, 2009. The regulations are effective July 1, 2010.

As discussed in the attached chart, the proposed regulations include more than 25 new obligations covering, e.g., student achievement, accreditation teams, transfer of credit, distance education and a number of other topics that directly impact the work of accreditors and their relationships with institutions and programs. Overall, the proposed rules affect accreditation operation in several major ways.

Additional Requirements for Accreditors

• USDE will play a more directive role in determining accreditation’s day-to-day operation, especially as this affects the institution-accreditor relationship. The new rules:  

• • Require all information an institution or program provides an accreditor to be subject to the federal Freedom of Information Act (FOIA).
  • Require accrediting organizations, under certain conditions, not to inform institutions and programs of a federal inquiry about them. 
  • Stipulate additional specifics of due process and appeals, including the structure of the appeals process, what must be in writing and expanding the opportunity for attorneys to participate in the appeal process.

CHEA will provide comments to USDE, pointing out that these changes in the ongoing operation of accreditation can undermine the trust relationship that needs to prevail between institutions and accreditors. This trust relationship is essential to effective peer/professional review. It is vital to both the quality assurance and quality improvement role that accreditation plays. 

• USDE will require that accrediting organizations expand the range of their scrutiny of institutions, with new requirements that accreditors:

• • Monitor student identity in online offerings.
  • Monitor transfer of credit policy.
  • Emphasize the monitoring of compliance of institutions and programs, especially as this relates to measures of student achievement and fiscal information.
  • Monitor growth in enrollment.
  • Review and approve teach-out plans.
  • Enlarge scrutiny of major changes in institutional operation, e.g., program additions or terminations.  

• The authority of USDE is now explicitly described, with an unambiguous indication that USDE officials make recognition decisions, contrasting with the advisory/recommendatory role of the National Advisory Committee on Institutional Quality and Integrity (NACIQI). This description makes clear that USDE oversight is continual, with ongoing monitoring of accreditor compliance throughout the period for which federal recognition has been approved by the Secretary of Education (maximum of five years).

CHEA will provide comments to USDE, urging that both the expanded monitoring of institutions by accreditors and the expanded monitoring of accreditors by USDE be prudent and limited, seeking to avoid a scenario in which institutions are in a state of perpetual accreditation review and in which accreditors are in a state of perpetual recognition review.

Related Developments That May Affect Accreditation

Regional Meetings and Second Negotiated Rulemaking in 2009

On May 26, USDE announced in the Federal Register that it will establish one or more additional negotiated rulemaking committees. According to current information, these committees will not focus directly on accreditation. However, several of the topics to be addressed – including “improving program integrity,” “satisfactory academic progress” and “definition of a credit hour” – could have an impact on expectations of the work of accreditors.

USDE held regional meetings in Denver, Little Rock and Philadelphia in June 2009 to provide an opportunity for public comment on the proposed agenda for the upcoming negotiated rulemaking sessions. Transcripts from the hearings can be found on USDE’s Website.

Dates for meetings of the negotiated rulemaking committees, as well as individuals who will serve as nonfederal negotiators, will be announced by USDE.

Appointment of Members of National Advisory Committee

USDE, the House of Representatives and the Senate are in the process of identifying individuals to serve on NACIQI, the body that advises the Secretary of Education with regard to the recognition of accrediting organizations. Under the new law, each of the three parties appoints six of the eighteen members of NACIQI. Based on current information, the advisory committee is not expected to meet until June 2010. There is some discussion of an advisory committee meeting in December 2009, but this likely would not include scrutiny of accrediting organizations.

The Student Aid and Fiscal Responsibility Act (HR 3221) Approved by House Education and Labor Committee

On July 21, the U.S. House of Representatives Education and Labor Committee approved the Student Aid and Fiscal Responsibility Act (HR 3221). New federal student loans will originate through the direct loan program instead of bank-based lending, as of 2010. The bill provides funding to increase the Pell Grant and expand the Perkins Loan Program and directs significant additional funds to community colleges. Additional funds for community colleges are accompanied by new requirements in areas such as student success, completion and post-completion employment.

Following the August Congressional recess, the bill will go to the full House of Representatives, where it is expected to pass. The Senate will begin consideration of similar legislation after returning from the August recess. CHEA will follow the bill’s progress in both the House of Representatives and the Senate.