The negotiated rulemaking committee focused on accreditation and innovation reconvened Tuesday and worked toward discussing the remaining issues in proposed regulatory language before beginning voting on Wednesday.
After a full day of discussion on Monday, the committee focused on remaining accreditation issues, faith-based entities, the Teacher Education Assistance for College and Higher Education (TEACH) Grant program, and state authorization reciprocity agreements (SARA). In all, the group had about 15 different items to get through on Tuesday.
“We’re at that point where we’re seeing the urgency of getting to the end and we want to make sure we cover the topics,” said federal negotiator Annmarie Weisman. “So it’s getting to the point where it’s not so much discussing if you agree with something, but if you have real language suggestions that you feel like … to make this work, [you] need it to say this.”
The committee began with accreditation issues, such as the procedure for when an institution wants to change accrediting agencies. Michale McComis, representing national accrediting agencies, suggested changes to prevent what he called “accreditation shopping.”
“The way that this is written is that it seems like any case will be deemed to be reasonable unless these three [instances] occur,” he said, suggesting the language reflect more of an approval process. He also suggested indicating when an institution has withdrawn while under a show cause, as well as if the institution has been subject to a show cause, probation, or other equivalent order in the past two years.
“The reason for that is because, in my experience, institutions, some that have switched accreditors have been subject to a probation and as soon as they get through that, they switch accreditors and they get clean slated,” he said.
Some negotiators also took issue with the use of the words “due process” in this section, which would allow the Department of Education (ED) to “determine the institution’s cause for changing its accrediting agency to be reasonable if the agency did not provide the institution its due process rights, the agency applied its standards and criteria inconsistently, or if the adverse action or show cause or suspension order was the result of an agency’s failure to respect an institution’s stated mission, including religious mission.”
The group reached a tentative agreement on the language and moved on to technical changes on the definition of religious mission, accreditation and pre-accreditation standards, and ensuring consistency in decision-making for accreditors.
When the committee came to discuss substantive changes and other reporting requirements, some committee members took issue with language that would allow institutions to not seek accreditor approval for subsequent additions of locations and branch campuses if they received approval for the addition of a first additional location or branch campus, have not been placed on probation or an equivalent status, or subject to negative action over the past three academic years. Rather, they would just be required to report the changes within 30 days if they meet “criteria established by the agency indicating sufficient capacity” to add those locations.
“This is something I have a major problem with because I’ve seen, again, a lot of abuses in the addition of both branch campuses and additional locations where schools add them too quickly, so it affects their financial capacity, or they add them but they don’t provide the sufficient resources there for students to learn whatever program they’re learning,” said Robyn Smith, representing legal aid organizations that represent students. “I think this really should continue to be a substantive change that requires approval for both branch and additional campuses, and I also think there needs to be site visits to these locations.”
Christina Amato, representing community colleges, said the issue is important for the work two-year public colleges do, such as dual enrollment programs, work in correctional facilities, or partnerships with employers, all of which would be considered additional locations by definition.
“It would be an incredible hardship if we had to go through substantive change for each of those additional locations,” she said. “Something we talked about was having some safeguards in place that an institution has to have done this before. … If you’ve gone through it once, you do not want to set up such restrictive practices because we lose all agility as an institution to be able to respond locally to the requests that we’re getting from employers, from high schools, from our state governments.”
Other proposed language with regard to teach-out agreements would require closing institutions to include in their teach-out plans: a plan to provide all “potentially eligible students with information about how to obtain a closed school discharge and, if applicable, information on state refund policies;” “information on the number and types of credits the teach-out institution is willing to accept; “and “a clear statement to students of the tuition and fees of the educational program at the teachout institution,” among other things. One negotiator suggested adding a clause about informing students of credits that would be accepted.
The group also circled back to the contentious issue of the geographic area of an accrediting agency. The committee has discussed at length the idea of defining a region within which the agency operates, and some negotiators representing accrediting agencies have expressed concern with the potential to be forced to accredit institutions in a particular state because they accredit a branch campus in that state.
Terry Hartle, representing private nonprofit institutions, suggested re-wording a qualifying sentence to read: “An agency whose region includes a state in which only a branch campus or additional location is located is not required to consider for accreditation other institutions in such state.”
The group also discussed Public Service Loan Forgiveness (PSLF) with regard to those working at non-profit organizations who perform religious activities. The proposed regulatory language would delete provisions that prevent borrowers from qualifying for PSLF if they work for an organization engaged in religious activities, unless the qualifying activities are unrelated to religious instruction, worship services, or any form of proselytizing.
Steven Sandberg, representing faith-based institutions, said that while he understands the concept of needing to carve out a borrower’s work in proselytizing, it’s difficult to separate that work from the job as a whole. Someone who works at the Salvation Army, for example, may not qualify currently, he said, because religious activities are part of the organization’s mission.
“To completely exclude from the realm of all of this a religious organization feels not just overboard to me, but I actually don’t think it reflects the current establishment law, case law, too,” he said. “I know there are strong opinions about this, but i just submit that it’s not so easy to simply say you can divide out a religious organization’s work.”
The group could not come to a decision on the appropriate language, and plans to review new proposed language on Wednesday.
The committee discussed at length changes to regulations related to the TEACH Grant program and the opportunity for recipients who had their grants converted to loans to ask for reconsideration. While ED put forth language to establish a process moving forward, Karen McCarthy, NASFAA director of policy analysis, said she was concerned about recipients who have already had their grants converted in error.
“With the reconsideration process that you have right now, what you have … says that people can only apply for reconsideration if they had a conversion because they failed to meet the annual certification date,” she said. “There were so many other people who had just flat out errors done by [ED], who under the guidance … are not eligible for that reconsideration process.”
She went on to say that what ED is doing with current borrowers “is not complete or comprehensive or addressing everybody who has really been wronged by [ED].”
“I think there are people in those situations who are not eligible for reconsideration and should be,” she said.
ED responded saying the change in language in the regulation would attempt to remedy the situation with current borrowers as well. Still, there was uncertainty with how to proceed with borrowers who had their grants converted into loans more than eight years ago. Weisman said ED would be reviewing the requests for reconsideration on a case-by-case basis.
McCarthy also pressed ED on why it would require a grant recipient to provide documentation that the grant was converted in error if it was a clear error on the part of the department.
“A lot of times [ED] doesn’t have the documentation it needs and that’s why … the burden is initially on the student to provide whatever that is they can get to show where they worked, whatever documentation they can show that they met those requirements,” Weisman said.
McCarthy also noted that there are specific situations in which students had their grants converted to loans prematurely while they were still in school, or within their first year of service, or where ED notified a student to provide documentation within 45 days and the grant converted on day 10.
“I wouldn’t want the borrower to feel—to perhaps not apply for reconsideration because they can’t prove it,” she said.
ED said it is already looking for documentation to proactively reach out to students who may be in these types of situations and will modify the language on the reconsideration process to allow ED to rely on documentation in its possession.
The group again returned to discussion on state authorization reciprocity agreements (SARA) and after a lengthy discussion that was struggling to move toward consensus, and a caucus between the nonfederal negotiators, the group decided to keep the regulatory language as it is—from the delayed 2016 regulations—and convene a group to work together to address the issues.
“This issue is tremendously important and there are issues that need to be hashed out that are deserving of significant attention,” said David Tandberg of the State Higher Education Executive Officers (SHEEO). “We need to get it right.”
He said that SHEEO would together with the American Council on Education convene a meeting in Washington, D.C. with representatives from legal aid services, veterans, SARA, and ED to work on addressing those issues, and added that it is possible that the result could be another negotiated rulemaking session on state authorization.
“However, we may be able to fix them within SARA,” he said.
The committee will reconvene at 8:00 a.m. ET on Wednesday and work until 3:00 p.m. ET. It is expected that the committee will begin formal votes on the three “buckets” for consideration: accreditation, the credit hour, and the Robert C. Byrd Honors Scholarship Program; the TEACH Grant program and faith-based entities; and distance education, state authorization, and competency-based issues.
Publication Date: 4/3/2019