Pleas for Consensus as Neg Reg Committee Enters Final Session

By Allie Arcese, Sr. Director of Strategic Communications & Engagement

By Allie Bidwell, NASFAA Senior Reporter

Higher education stakeholders gathered for a final negotiated rulemaking, or neg reg, session on Monday in an attempt to rewrite regulations on accreditation, distance education, faith-based entities, and the Teacher Education Assistance for College and Higher Education (TEACH) Grant program. While the committee and subcommittees have gathered several times over the last three months, it has struggled to work its way through regulatory language and find consensus on numerous contentious issues.

The day started with a visit from Diane Auer Jones, deputy under secretary at the Department of Education (ED), who said the process has been “a bit of an experiment” with regard to the structure, which has strayed from previous neg reg sessions with three full subcommittees sending recommendations to the main committee.

“In some ways … it almost felt like we were doing four negotiated rulemakings at the same time,” she said. “It was a lot of people and a lot of red lines and a lot of dialogue, but I have to say that the subcommittee discussions were a little deeper than you can have at the full committee level because they have that time to really take a deep dive.”

Some in the higher education community have been critical of ED’s decision to tackle multiple regulatory issues in one neg reg session, but as the committee’s work comes to an end this week, Jones said the process “has been exactly what it’s supposed to be.”

“We’ve sat around the table. Some people talk about brokering a deal. I don’t see it that way,” she said. “I’ve worked on Capitol Hill. I’ve seen brokering a deal. This isn’t that. This is the collective wisdom of people who approach our [regulations] and higher education from multiple perspectives.”

She added that the proposed regulatory language “is better than it was when we started,” and urged the group to strive for consensus.

“We knew we were being provocative. We knew that we could not end where we began,” Jones said. “But sometimes, you have to go pretty far to the extreme so that you have the robust discussion. If you start with the status quo, it can be very hard to move from it. So we have moved in the right direction, as have all of you.”

After Jones’ remarks, the committee made its way into discussing state authorization regulations, which was postponed during last week’s session. One sticking point for negotiators centered around the structure of state reciprocity agreements, and proposed regulatory language that would allow states covered by a reciprocity agreement to enforce is own laws and/or regulations.

“I can give you lots of stories of clients who have enrolled in online programs, they haven’t gone a single day, their federal money is refunded, but then they’re charged for the tuition, sometimes the full tuition,” said Robyn Smith, representing legal assistance organizations that represent students. “They would be protected by the state laws, which have refunding cancellation requirements, but except for the SARA.”

Smith also took issue with the fact that the current state authorization reciprocity agreement (SARA) requires states to sign on “for all or none,” and an apparent lack of transparency given that the agreements are private.

“They can’t decide between the different types of institutions,” she said. “That means they have to either sign on proprietary, private nonprofit, and public, or they can’t sign on for any. They need to be able to distinguish which programs they think are riskier than others.”

She supports reworking SARA requirements so that the education provider would have to comply with state consumer protection laws.

She continued, saying that online students “are equally deserving of the kind of consumer protections that brick-and-mortar students get.”

“There’s really no reason to distinguish between the two,” she said. “In fact, the online students are more at risk of … not getting a good education, as well as not completing. So I think it’s incumbent upon [ED] to protect the students as well, as this is a risk for taxpayers.”

The group also spent a significant amount of time discussing a change in the proposed language to switch the word “residence” to “location” with regard to disclosures relating to state licensure. Some committee members were concerned that it could create an administrative burden for institutions having to send disclosures each time a student moves. Federal negotiator Annmarie Weisman clarified that ED would not expect the disclosure every time a student moves, but rather if a student moved across state lines.

The committee moved through “temperature checks”—a method used to gauge tentative agreement on issues—on the definition of academic engagement, and the calculation of the number of correspondence students before moving on to direct assessment and institutional eligibility and certification.

Weisman noted that on institutional certification that ED has “committed … to ensuring prompt action on any application that is materially complete and required under this section.” NASFAA has urged ED to respond more quickly to schools in areas such as certifications, recertifications, and program reviews.

“We are not defining ‘prompt action,’ but I think it’s one of those things that I don’t know what it looks like, but I know it when I see it,” she said. “If somebody wants to say that we are not being prompt, they can certainly point that out.”

At the suggestion of a negotiator, ED agreed to provide more background and explanation in the preamble of the Notice of Proposed Rulemaking (NPRM), including recognition that it needs to improve its response times to institutions.

Barbara Gellman-Danley, representing regional accrediting agencies, pushed back on the lack of a set deadline, saying ED “is not necessarily known for being prompt.”

“How are you going to self-police the department on the use of a term that says ‘prompt?’” she asked. “Because if an institution, for example, is waiting for a financial aid audit, it could be two years,” she said.

Weisman said ED did not want to write a timeframe into regulations to give the agency flexibility in certain situations where it might need more time to allow for an extension requested by an institution, for example.

Still, Gellman-Danley pushed for more concrete guidelines, saying, “if you replaced ED with an accreditor, you might understand that we are not dealing with a level playing field here.”

“There’s a supposition that accreditors slow everything up,” she said. “I don’t want to miss this opportunity to say that when people complain to you that we’re slow, it’s for the same reasons.”

The group later in the afternoon moved on to student assistance general provisions in the regulatory language, including definitions on the credit hour and subscription-based programs, before circling back to the idea of written arrangements with third party providers, or the outsourcing of a portion of a program.

ED agreed to maintain the 50 percent cap with accreditor approval, contingent on a new deadline for review by the accrediting agencies.

The group  supported a concept put forward by the distance education sub-committee that would consider a student enrolled in modules not to have withdrawn if the student completes—

  • At least one module that includes 50 percent or more of the number of days in the payment period;

  • A combination of modules that when combined contain 50 percent or more of the number of days in the payment period; or

  • Completes coursework in a module or modules that is equal to or greater than the coursework required for the institution’s definition of a half-time student under 34 CFR 668.2 for the payment period.

The committee will reconvene on Tuesday to discuss the TEACH Grant program and faith-based entities, as well as other miscellaneous accreditation issues. The committee will gather from 8:00 a.m. until 3:00 p.m. on Wednesday before concluding its work.


Publication Date: 4/2/2019

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