Neg Reg Day 2: Committee Focuses on Outsourcing, Accreditation Standards in Third Session

By Allie Bidwell, NASFAA Senior Reporter

The full negotiated rulemaking committee tasked with writing federal regulations related to accreditation, distance education, faith-based entities, and the Teacher Education Assistance for College and Higher Education (TEACH) Grant program on Tuesday continued working its way through proposals to adjust accreditation provisions, including outsourcing, the enforcement of accreditation standards, and operating procedures.

One of the more controversial proposals throughout the process has been the Department of Education’s (ED) proposal to allow an institution to have up to 100 percent of its program delivered through a written arrangement with an ineligible institution or third party provider, essentially outsourcing the program.

After listening to feedback from the committee members, federal negotiator Annmarie Weisman said ED walked back the proposal, suggesting allowing up to 50 percent of the program to be outsourced without accreditor approval, and up to 75 percent with accreditor approval.

“You clobbered us. We heard you,” Weisman said.

Still, the distance education subcommittee “was strong and relatively unanimous over all three sessions” in its opposition, according to Jillian Klein, a negotiator representing private for-profit institutions. The primary criticism, she said was that “it had the potential to turn the program into a shell with all the programs being offered by an entity that is beyond eligibility requirements and is not accountable.”

ED revised language to retain the 50 percent cap without accreditor approval, but require institutions to notify their accrediting agency within 10 days of entering into a written arrangement—new language that ED unveiled for the first time on Tuesday, without the subcommittee’s review.

“Some subcommittee members expressed concern that after facing strong opposition to the proposed changes to written arrangements in all three subcommittee sessions, [ED] is proposing new language to the full committee that the subcommittee was not given an opportunity to review,” Klein said.

Christina Amato, representing two-year public institutions, said the proposal would “remove the guard rail” for innovation.

“Yes, it increases agility in the ability for an institution to react more quickly, but I think we need to know what the risk for harm is with evidence before making that decision,” she said.

Terry Hartle of the American Council on Education, representing private nonprofit institutions, said that while he likes the idea of encouraging innovation, ED has to “figure out ways to permit more innovation within the pretty narrow confines of what the Higher Education Act permits.”

“Having said that, I am so tired of reading stories about students and taxpayers that have gotten screwed because schools have suddenly closed,” he said. “It is worth being cautious in letting ineligible institutions be given the authority, the responsibility to demonstrate that they have the experience to do this.”

Barbara Gellman-Danley of Higher Learning Commission, representing regional accrediting agencies, said the key issue for accreditors is not the percent, but rather “the right to approve ahead of time and have oversight.”

“I wouldn’t even care if it were 60 percent, but we would want to weigh in,” she said.

As the group continued to debate the details of the proposal, it was suggested that nonfederal negotiators caucus to come up with language to present to ED on Wednesday.

The group also questioned the “need for speed” with regard to accreditor approval, and why ED had not brought data to support the reasoning behind the proposal.

“Everything we bring is not always data-driven. Some items are just a policy prerogative, and there are going to be variations in what policies people want to have,” Weisman said. “The idea of the need for speed, what we’re hearing is schools want to get some of the shorter-term programs in place sooner than they can.”

In the end, the group felt it was necessary to discuss other regulatory language related to accreditation more broadly before circling back to the issue of outsourcing.

ED also proposed changing language in the enforcement of accreditation standards giving accrediting agencies leeway with regard to the timing of any adverse action against an institution. In a note in the proposed language, ED wrote: “While agencies should be permitted to take immediate adverse action against an institution or program, doing so is almost never in the best interest of students.”  

Rather, the note continued, students’ interests “are best served when institutions or programs have time to implement a teach-out plan, enter into teach-out agreements with other institutions or programs, and help students move to a new institution to complete their programs.”

Several committee members expressed concern over the proposed language, questioning whether the wording would require accrediting agencies to give institutions that may be collapsing “lots more time” to submit written appeals.

Following lunch, the group discussed adjusting the language to require the agency to provide the institution or program “with a written timeline for coming into compliance that is reasonable as determined by the agency’s decision-making body, based on the nature of the finding and the stated mission and educational objectives of the institution or program.”

The agency would also be required to follow its written policies and procedures “for granting a good cause extension that may exceed the standard timeframe … when such an extension is determined by the agency to be warranted.”

ED also proposed removing language in the section specifying accrediting agency standards that laid out in more detail what would be required in the standards. ED officials said the removal was meant to “provide more flexibility for an agency to devise its standards without undue interference from the Department.” Some questioned, however, whether this change would reduce rigor, especially considering the potential for new accrediting agencies to enter the market.

The group in the afternoon discussed significant proposed changes to regulatory language on pre-accreditation. ED proposed including language that would require accrediting agencies to limit pre-accreditation only to institutions or programs deemed “likely to succeed in obtaining accreditation,” for example.

It would also require all pre-accredited institutions to have a teach-out plan to ensure students would meet the academic requirements for professional licensure.

ED’s proposed regulatory language would also expand the list of circumstances that would trigger a requirement for a teach-out plan for all accredited institutions. The most controversial of these are when the institution failed financial responsibility standards or is on the heightened cash monitoring payment method, given that these conditions are not always indicative of a financially unstable institution. ED acknowledged the negotiators’ concerns and plans to propose new regulatory language.

The committee will reconvene Wednesday and Thursday mornings.

 

Publication Date: 3/27/2019


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