Second Session of Negotiated Rulemaking on Accreditation Considers Draft Regulatory Text

Publication Number 4 April 15, 2009

Second Session of Negotiated Rulemaking on Accreditation Considers Draft Regulatory Text

The second session of the negotiated rulemaking on accreditation, to develop regulations implementing the accreditation provisions of the Higher Education Opportunity Act of 2008 (HEOA), was held in Washington, D.C. on April 21-23, 2009. Nonfederal negotiators and U.S. Department of Education (USDE) officials continued their review of the sixteen proposals they had agreed to consider at their first meeting in March. These proposals address accreditation practice and ongoing operation and shape the expectations that accreditors have of institutions undergoing accreditation reviews.

The goal of the negotiated rulemaking is to arrive at consensus with the community on proposed new regulations that will then be published for public comment. Following the comment period, USDE will issue the regulations, effective July 1, 2010. Accrediting organizations and institutions will be bound by these rules as part of compliance with HEOA. The conditions for consensus, USDE action in the absence of consensus and USDE’s opportunities for changes in the rules throughout this process may be found in the protocols governing the rulemaking.

Tentative Agreement Reached On Eight Issues

In the course of the meeting, the committee came to “tentative agreement” on eight of the sixteen proposals. While official text is not yet available, reaching agreement involved some changes in the initial language of the proposals (link above), but not major modification. The eight issues are Issue 1 (Definitions of Distance Education and Correspondence Education), Issue 2 (Accreditation Team Members), Issue 3 (Student Achievement Standard), Issue 4 (Transfer of Credit), Issue 6 (Definition of Recognition), Issue 9 (Direct Assessment Program Definition), Issue 14 (Record Keeping and Confidentiality) and Issue 16 (Summary of Agency Actions).

Proposals for which there was no tentative agreement are Issue 5 (Teach-out Plan Approval), Issues 7 & 8 (Demonstration of Compliance Within 12 Months and Recognition When Not Fully Compliant, and Recognition Procedures – Subparts C & D), Issue 10 (Distance Education and Correspondence Education), Issues 11 & 12 (Monitoring of Institutions and Programs Throughout Period, and Growth Monitoring), Issue 13 (Substantive Change) and Issue 15 (Due Process and Appeals).

“Tentative agreement” does not preclude an additional review of proposal language and this can take place at the next committee meeting. CHEA will publish the official text as soon as it is available. The facilitators for the negotiated rulemaking noted that, for some of these issues, disagreements between nonfederal negotiators and USDE are serious and pose the potential for blocking final consensus.

Federal Recognition: The Roles of NACIQI and USDE

While all of the issues before the committee are important to institutions and accreditation, three can have an especially profound impact on self-regulation and peer/professional review and were discussed at some length during the meeting. These are: 1) an apparent shift in the role that USDE envisions for the National Advisory Committee on Institutional Quality and Integrity (NACIQI) in recognition decisions, 2) the extent to which documentation in the course of accreditation review is considered private or confidential and 3) regulations regarding the monitoring of student achievement.

As drafted, the new regulatory text acknowledges but diminishes the role of NACIQI in the recognition process and strengthens the role that USDE officials play in making recognition decisions.

The role of NACIQI as advisory to the Secretary of Education is laid out in statute, including the composition of this body. A key factor in this composition is that the public plays a significant role in advising the government on decisions about federal recognition of accrediting organizations. In past practice, NACIQI’s scrutiny and judgment about accrediting organizations has been the dominant factor in USDE decisions about federal recognition.

As the draft regulations currently read, the role of USDE officials in determining federal recognition would become dominant, with language that expands the opportunity for USDE to determine recognition status independent of NACIQI. NACIQI’s recommendations would be one of several factors taken into account in recognition decisions, rather than the driving factor. While the role and judgment of appointed officials is essential and valuable, the public voice in the recognition process is also vital. Further discussion is needed to determine the impact of these proposed changes on the advisory role of NACIQI going forward.

The Status of Documentation: What Institutions Give Accreditors

A key element in the accreditation process that has contributed to its success is the trust relationship that obtains between institutions and accreditors in the course of a review. Institutions provide voluminous documentation of evidence of quality and quality improvement. They are candid about both their strengths and limitations. A “zone of privacy” has been carved out over time where institutions are confident that accreditors will handle information with discretion and regard for the wellbeing of a college or university.

The draft proposals before the committee would reduce this zone of privacy. Documentation from accreditors in USDE’s possession as part of the federal recognition review is subject to federal law calling for these materials to be made public. Further, the proposals would require accreditors to provide information to USDE and, under certain conditions, not inform an institution.

The call for greater transparency in accreditation review has been heard recently from many quarters, both within and outside higher education and not only from the federal government. In the current climate of accountability and transparency, sustaining the current zone of privacy is increasingly difficult. The challenge is how to maintain the trust and candor so important to accreditation in the face these expanding pressures.

Student Achievement

The draft regulatory text would require accreditors to collect and analyze data related to “performance indicators” and “measures of student success” as part of a new rule that accreditors are to monitor enrollment growth at colleges and universities. The proposed new rule accompanies new statutory language on such monitoring.

HEOA stipulates, however, that the Secretary of Education cannot promulgate regulations concerning student achievement and thus limits what USDE can do in this area. Proposed regulatory language that includes “performance indicators” and “measures of student success” appears inconsistent with the limitation on regulating student achievement, endangering the independence of institutions in establishing their own standards here, as the law stipulates. This issue was the object of intense focus during the drafting and passage of HEOA.

Next Steps

The final negotiated rulemaking session will be held in Washington, D.C. on May 18-20. CHEA will follow this process closely and keep institutional members, CHEA-recognized accreditors and the public informed.