The Department of Education (ED) on Friday released final regulations for accreditation and state authorization of distance education, to take effect July 1, 2020. The final regulations quickly accumulated statements of opposition from left-leaning higher education organizations and Democratic lawmakers who claimed ED produced regulations that would help bad actors fly under the radar and weaken institutional accountability.
The regulations come after ED convened a lengthy negotiated rulemaking session on several topics. The committee reached consensus on all “buckets” of policy issues, including accreditation and state authorization, meaning ED was expected to adhere to the regulatory language agreed upon at the conclusion of negotiations for the proposed rules. The final rules published Friday appeared to contain several significant changes from June’s Notice of Proposed Rulemaking, which is within ED’s authority in the rulemaking process. In response to the proposed rules, ED received 195 comments from the public.
In the final regulations, which include an analysis of the public comments received and any action taken by ED in response, ED noted that many commenters “expressed general opposition to the proposed regulations, suggesting that [ED] was weakening both its oversight of accrediting agencies and the accrediting agencies’ oversight of institutions, reducing transparency, and putting students and taxpayers at risk.” In response, ED said it believes the final regulations “strike the right balance” between goals to increase innovation and strengthen accountability.
ED disagreed with a number of comments that took issue with fundamental proposals in the regulations and expressed concern that the regulations would weaken accountability and did not make changes to reflect those concerns.
"These final regulations demonstrate our commitment to working with student, state, employer, and institutional representatives to develop sound policies that serve the best interests of students,” said Education Secretary Betsy DeVos, in a statement. “These reforms are necessary to bring higher education into the current century, to be more responsive to the needs of students, and to reduce the skyrocketing cost of higher education.”
ED made a number of changes to the state authorization regulations after reviewing public comment, including revising the “state authorization reciprocity agreement” definition “to provide that it does not prohibit any member state of the agreement from enforcing its own general-purpose state laws and regulations outside of the state authorization of distance education.”
“A reciprocity agreement may supersede a state’s own requirements related to state authorization of distance education and may prohibit a state voluntarily participating in that agreement from adding additional requirements on institutions that also participate in the agreement,” ED wrote in the final rule.
Several organizations in the higher education community, and Democratic lawmakers, claimed ED reneged on consensus language. Sen. Patty Murray (D-Wash.), ranking member of the Senate Committee on Health, Education, Labor and Pensions (HELP), said in a statement that the final regulations “lower the standards of our nation’s higher education institutions” and called on DeVos to withdraw the rules.
“Every student attending college or university deserves a quality education. Secretary DeVos’ latest rule undermines quality assurance and oversight of higher education and gives predatory for-profit colleges a free pass to take advantage of students and taxpayers. I urge the Secretary to withdraw this rule and allow Congress to address this issue through a comprehensive reauthorization of the Higher Education Act,” Murray said. “Bottom line, this rule will hurt students — and every family should be appalled at Secretary DeVos’ attempt to make it easier for institutions to use taxpayer dollars to take advantage of students.”
The administration argued the final regulations provided more flexibility for innovation in the changing higher education landscape.
“As we have done since the beginning of this administration, we asked ourselves and our negotiating partners to consider why we do the things we do, and if there might be a better way moving forward,” DeVos said. “We rejected the idea that one-size-fits-all solutions make sense in a world where education needs continue to evolve in our dynamic economy. And we ended the stranglehold that a system designed when people traveled by horse and buggy continued to have on institutions.”
ED added in its announcement that it will “soon publish” rules on distance education and innovation, the Teacher Education Assistance for College and Higher Education (TEACH) Grant Program, and faith-based institutions. In order for the regulations to take effect on July 1, 2020, they would need to be published by Nov. 1, 2019. Therefore, the soonest any subsequent regulations could be effective is July 1, 2021.
Stay tuned to Today’s News for subsequent articles from NASFAA’s policy team as they analyze the final regulations in greater detail.
Publication Date: 11/1/2019