Neg Reg Day 4: Committee Tackles TEACH, Faith-Based Issues, Revisits Accreditation
By Karen McCarthy, NASFAA Policy and Federal Relations Staff
Wrapping up its third of four sessions, the negotiated rulemaking committee charged with proposing regulatory changes in the areas of accreditation, distance education, the Teacher Education Assistance for College and Higher Education (TEACH) Grant program, and faith-based issues discussed final recommendations from the TEACH Grant and faith-based subcommittees, “separate and independent” requirements for accreditors, inclusion of students on accreditor decision-making bodies, application of standards in accrediting agency decisions, and alternative pathways for institutions to satisfy accrediting agency standards.
TEACH Grant
The group started the day with a discussion of the recommendations from the TEACH Grant subcommittee, which had agreed by consensus on proposed regulatory wording aimed at improving administration of the TEACH Grant program and lowering the rate of grant to loan conversions. The main committee accepted the subcommittee’s proposed regulatory changes, but spent a significant amount of time debating the one area where the subcommittee was unable to reach consensus — whether and how to address the TEACH Grant recipients who have already had their TEACH Grants converted to loans, possibly erroneously.
Although the regulations proposed by the subcommittee and supported by the committee include a reconsideration process, it is limited to erroneous loan conversions and if finalized, would not be effective until July 1, 2020 due to statutory master calendar requirements.
In December 2018, the Department of Education (ED) announced a process to allow certain TEACH Grant recipients whose TEACH Grants were converted to loans to request reconsideration of those conversions. Recipients may request reconsideration if they met or are meeting the TEACH Grant service requirements within the eight-year service obligation period, but had their grants converted to loans because they did not comply with the annual certification requirement or because their loans were otherwise converted in error.
ED resisted incorporating a possibly expanded reconsideration process into the regulations to address TEACH recipients whose grants have already been converted to loans, partly because they hope to have resolved many of these conversions under the process announced in the Electronic Announcement before July 1, 2020, when any new rules would be effective. ED also acknowledged the existence of eight current lawsuits against ED related to TEACH Grant conversions that would be complicated by new applicable regulations.
The discussion was paused until the next session, and in the meantime, ED staff will:
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Investigate the possibility of an early implementation of the TEACH Grant provisions, which would mean that they could be effective earlier than July 1, 2020.
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Consider whether they could support language that would not subject TEACH recipients who have already had their grants converted to loans to the proposed one year post-conversion deadline by which a recipient can provide documentation showing that he or she is satisfying the required service obligation.
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Draft language for review by non-federal negotiators that would be included in the preamble of the Notice of Proposed Rulemaking (NPRM) that would “tell the story” of TEACH Grant loan conversion and the commitment ED has to resolving erroneous loan conversions.
Faith-Based Issues
While the TEACH Grant subcommittee was able to reach agreement on most of their discussion topics, the faith-based subcommittee found their issues to be more contentious, ultimately leading the subcommittee to agree on regulatory language only on relatively minor issues in the GEAR UP program and Federal Work-Study (FWS) restrictions on the construction, operation, and maintenance of facilities used for religious activities. This left the main negotiating committee to debate the religious order student eligibility provisions in the FWS, Federal Supplemental Educational Opportunity Grant (FSEOG), Direct Loan, and Federal Pell Grant programs, loan deferment and forgiveness for religiously-affiliated activities, and accreditation and state authorization issues, including the definition of religious mission and the appropriate treatment of religious missions by accrediting agencies.
Of the faith-based issues open for discussion, the committee spent most of its time debating possible definitions for religious mission, which is not currently defined in regulation, and considering how an accrediting agency might consider religious mission without condoning discrimination, and also ensuring that curricula include all core component required by the agency.
Ultimately, the group tentatively agreed on language requiring accrediting agencies to respect an institution’s stated mission, including religious mission, and any mission-based policies in certain areas of the agency’s accrediting standards, including faculty, facilities, student support services, recruiting and admissions practices, academic calendars, catalogs, publications, grading, and advertising.
Miscellaneous Accreditation Issues
For the remainder of the day, the committee discussed several provisions within the accreditation rules. ED proposed wording that would consider any joint use of personnel, services, equipment, or facilities by an accrediting agency and a related, associated, or affiliated trade association or membership organization to violate the “separate and independent” requirements. Primarily affecting programmatic accreditors with small staffs, who sometimes share space and other resources with associations, this provision currently provides an exemption if the agency pays the fair market value for its share of the joint use and the joint use does not compromise the independence and confidentiality of the accreditation process. The representative for programmatic accreditors proposed that the exemption be retained in the rules.
Administrative and fiscal capability requirements for accreditors currently require that agencies have representatives of the public on all decision-making bodies. In response to a request by the negotiator representing students, Joseph Verardo, for more student involvement, ED proposed language stating that representatives of the public may include students. After much discussion about the logistical difficulties and statutory restrictions on institutional affiliations for board members, the group reached tentative agreement on this inclusion.
In rules relating to the application of standards in reaching an accrediting decision, ED had proposed that agencies must require institutions to have processes in place to verify the identity of students enrolled in any type of coursework rather than only for students enrolled in distance education or correspondence courses. After much debate about the utility and burden of such a requirement, the group tentatively agreed to revert back to requiring such verification only for distance education or correspondence.
The committee ended its day by brainstorming proposed rules that would allow an agency to apply written standards, policies, and procedures that provide an alternative means of satisfying one or more accrediting agency requirements while simultaneously ensuring quality and protecting the interests of students. Several committee members expressed concern that ED’s initial proposal is too broad and has too many loopholes that would lower institutional quality. Negotiators will continue to work on possible regulatory language in this area next week.
The committee was unable to discuss state authorization yesterday as originally scheduled, so that will be their first agenda item next week, when they will meet Monday through Wednesday for their final session.
Publication Date: 3/29/2019
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