Let’s Get into the Regs! Key Highlights from the Negotiated Rulemaking Committee on Accreditation and Innovation, Session 1, Day 2
While much of the D.C.-area got to work clearing snowfall from a weekend winter storm, Committee Members on the U.S. Department of Education (“Department”) Federal Negotiated Rulemaking Committee on Accreditation and Innovation (the “Committee”) got to work reviewing and, oftentimes challenging, proposals and recommendations to the Department’s draft regulatory language of 34 CFR § 602. In general, the Committee expressed discomfort with adopting much of the Department’s proposed regulatory language without additional context on the underlying issues, rationale, and evidentiary basis for the proposals. Moreover, the absence of a discussion on the definition of terms in §602.3—a task assigned to the Subcommittee on Distance Learning and Educational Innovation—stymied much of the Committee’s analysis of the effect of the proposed language on the accreditation landscape and ultimately, on the impact to students.
Provided below are key highlights from the lively debate of the proposed draft regulations of Session 1:
602.10 – Link to Federal Programs
- The Department proposed a “link to federal programs” that would allow accrediting agencies to seek and obtain recognition by the Department if they accredit a Title IV-eligible institution, regardless of whether the institution uses their particular accreditation for Title IV funds. Committee Members expressed concern and confusion as to the Department’s goals with the change, with one Committee Member in particular requesting data on how many accreditors find themselves in this position. In response, the Department noted concerns regarding barrier-to-entry for new accrediting agencies and assured the Committee Members that easing the burden of this singular criteria would not result in automatic recognition since the Department considers 27 other criteria in its assessment. The Committee and Department discussed the statutory intent of the federal link requirement for some time before the Committee concluded that they were not ready to approve this change without greater context for its purpose and rationale.
602.11 – Geographic Scope
- Arguably the most contentious part of the negotiations was the Department’s proposal to distinguish a regional accreditor as an agency which covers “at least three but fewer than 10” contiguous States or territories within the United States. Committee Members again expressed concern and confusion as to what the Department sought to address and what they believed could be gained with this change, with one Committee Member in particular voicing serious concern for the hundreds, if not thousands, of schools who might lose accreditation if their regional accreditor dropped their state in order to stay within the 10-state threshold. When pressed on the purpose and rationale for the proposal, the Department acknowledged the need to address monopolies and the issue of “regional creep,” wherein regional accreditors operate as national oversight bodies but hesitate to represent themselves as such due to the “stigma” associated with national accrediting agencies. Committee Members representing regional agencies continued to pushback on this proposal while others suggested adjustments to the draft regulatory language. Ultimately, no consensus was reached by the Committee as to this proposal.
- The Department proposed removing the requirement that accrediting agencies conduct activities for at least two years prior to seeking initial recognition from the Department. Committee Members voiced approval for keeping the two-year requirement, stating that it was helpful in demonstrating an accrediting agency’s track record and maturity for operating on this level. The Department took the Committee Members’ suggestions under advisement.
- As to the Department’s recognition of an accrediting agencies’ expansion of scope for graduate programs, the Department proposed requiring accrediting agencies to engage employers in their review and consideration of new graduate programs. Committee Members questioned why this suggestion was limited to graduate programs, while others asked to what end and under what metric of success engaged employers would be part of this process.
602.13 – Acceptance of the Agency by Employers and Practitioners
- Currently, accrediting agencies have to demonstrate that their standards are reviewed and widely accepted by educators, educational institutions, licensing bodies, practitioners, and employers in relevant fields. The Department’s proposal narrows review and acceptance to only practitioners and employers. In support of its proposal the Department called attention to the influence of licensing bodies and the concern of “credential inflation,” whereby students are required to earn a higher credential than necessary for entering their chosen professional field. Committee Members found this proposal unnecessary and lacking in specificity, particularly because licensing boards work closely with employers and a students’ ability to sit for licensure is oftentimes crucial to their decision to pursue an education.
602.14 – Purpose and Organization
- The Department proposed changing its analysis of “separate and independent” accrediting agencies, stating that agencies that shared personnel, services, equipment or facilities with an affiliated trade association or member association were no longer considered separate and independent. One Committee Member voiced concern over the Department’s structural approach rather than functional approach, offering that smaller accrediting agencies oftentimes buy into benefit programs of professional association for joint use or may even share photocopiers, but they do not share a principal purpose.
602.15 – Administrative and Fiscal Responsibilities
- Committee Members voiced general approval for the Department’s proposal to allow practitioners and employers to sit on evaluation, policy, and decision-making bodies of accrediting agencies, as well as voicing general approval for the Department’s proposal to reduce record-keeping burdens by limiting the documents accrediting agencies must maintain.
602.16 – Accreditation and Preaccreditation Standards
- The Department’s proposal allows accrediting agencies to define “distance education,” “correspondence courses,” and “regular and substantive interaction” so long as they are in a manner consistent with § 600.2 and in a manner that clearly distinguishes between distance education and correspondence courses. Since the defining terms of § 600.2 had yet to be discussed by the Subcommittee, Committee Members voiced strong opposition to the Department’s overall negotiated rulemaking process, suggesting that the Department was “giving up” its enforcement powers in deference to the Subcommittees.
- Other parts of the Department’s proposal afford accrediting agencies greater flexibility in using alternative governance structures and in waiving their standards for particularly innovative institutional pilot programs, which were well received by many of the Committee Members.
The Department ended the day by urging Committee Members to “go back… let us know what the concerns are.” The Committee will reconvene February 19th – 22nd, where they will hopefully have the benefit of reports and working drafts of regulatory language prepared by the Distance Learning and Educational Innovation Subcommittee, TEACH Grants Subcommittee, and Faith-Based Entities Subcommittee.
HMBR is available to provide specific advice on how this regulatory development may affect your institution’s policies, procedures and practices. Should you like assistance, please contact HMBR’s Higher Education Group at 312-946-1800.