Analysis: ED Publishes First NPRM from 2018-19 Accreditation and Innovation Neg Reg Committee

By Jill Desjean, NASFAA Policy & Federal Relations Staff

Last Wednesday, the Department of Education (ED) published in the Federal Register the first Notice of Proposed Rulemaking (NPRM) to come out of the 2018-19 negotiated rulemaking session. While the negotiations covered a broad swath of topics, this first NPRM covers only accreditation, state authorization, and the Robert C. Byrd Honors Scholarship Program. Because consensus was reached by the negotiators on all of the topics covered by the negotiations, ED must adhere to the regulatory language agreed upon at the conclusion of negotiations.

Future NPRMs will include proposed regulatory language for the other topics covered in this rulemaking session, which include the Teacher Education Assistance for College and Higher Education (TEACH) Grant program, distance education, and faith-based entities. This article will focus only on recognition of accrediting agencies; watch Today’s News later this week for a separate article covering changes to state authorization and the student assistance general provisions.

Overall, the proposed rules are framed in the context of strengthening the program integrity triad—comprised of ED, accreditors, and the states—by clarifying the oversight roles and responsibilities of each party. Themes that run throughout the proposed rules include removing barriers both to institutional innovation and to student entry into their chosen professions; preserving accreditor and institutional autonomy; honoring campus missions; transparency; and efficiency. Many of the proposed changes focus on burden reduction, eliminating duplication of effort, and clearer delineation of responsibilities.

Proposed Changes to Recognition of Accrediting Agencies (34 CFR 602)

ED proposes to add a new definition to 34 CFR 602.3 for the term “monitoring report” as a new tool that addresses oversight for accreditors that have been found to be in “substantial compliance” (for which a new definition is also proposed) with recognition criteria. ED’s goal for adding this intermediate step between full compliance and a compliance report is to allow agencies to implement updated policies to align with compliant practices when areas of noncompliance are minor or technical in nature. The monitoring report, addressed fully in proposed 34 CFR 602.33, would be an option in addition to, not in place of, the existing compliance report. However, because the monitoring report would address minor compliance issues, it would not require review by the National Advisory Committee on Institutional Quality and Integrity (NACIQI) unless ED staff determined such a review to be necessary.

ED seeks to remove “geographic area” from the existing scope of recognition definition to acknowledge that regional agencies currently accredit additional locations outside of their stated geographic area of scope, as well as to foster competition among accrediting agencies. The proposed regulations would also broaden the definition of the geographic area of accrediting activities—currently defined in 34 CFR 602.11(b) as a region that includes at least three states—to include any region or group of states chosen by the agency. ED seeks to remove preconceived notions about accreditor quality based on existing labels as “regional” or “national” agencies, and to reinforce that all accreditors are held to the same standards by ED. The definition would also specify that agencies may decline to accept an application for accreditation from an institution in a state if it only accredits a branch campus or other additional location in that state.

ED proposes to add an exception to the requirement in 34 CFR 602.12 that agencies seeking initial recognition must have conducted at least two years of accrediting activities. The proposed language waives the two-year requirement in cases where the agency seeking initial recognition is an affiliate or division of an already-recognized agency.

For expansion of scope of recognition, ED proposes to remove the requirement that agencies must have accredited institutions or programs in the area(s) of expanded scope at the time it applies. ED also proposes that a change to an agency’s geographic area is not considered an expansion of scope and that, in those instances, only notification to ED and public disclosure on the agency website are required.

ED proposes to require in 34 CFR 602.15 that, to demonstrate administrative capability, an agency has individuals qualified by either education or experience, as opposed to both education and experience, as is set in current regulation. This reflects ED’s belief that, especially in vocational occupations, experience could adequately substitute for education to enable an individual to fill their role within the accrediting agency. It also adds students as possible public representatives on agency decision-making bodies.

ED proposes the addition of language in 34 CFR 602.16 to permit accreditors to have separate faculty standards for instructors who teach within dual or concurrent enrollment programs or career and technical education, provided the instructors are qualified by education or experience to serve in those roles.

With respect to enforcement of accreditation standards, ED proposes changes to 34 CFR 602.20 to provide for greater accreditor autonomy in establishing their own timeframes for institutions or programs to come into compliance, replacing set time periods in current regulations with agency-developed timelines that may include intermediate checkpoints.

Agencies would still be required to have policies for immediate adverse action when warranted. Agencies would have the discretion under the proposed regulations to maintain a noncompliant institution’s or program’s accreditation for a reasonable time while the institution completes teach-out activities. Accreditors would also be permitted to limit adverse action only to noncompliant programs or locations without taking action against the institution as a whole.

ED seeks to change the conditions under which institutions must request accreditor approval for substantive changes to their programs in 34 CFR 602.22. Amended language is intended to require the highest level of scrutiny for the highest-risk changes, while permitting lower-risk changes to be approved by agency senior staff only (vs. the entire accrediting body), or simply requiring reporting by the institution without any required approval by the accreditor.

Whereas current regulations require approval for any new programs at a different credential level than what is included in the institution’s current accreditation, only the addition of graduate programs would require the approval of the full accrediting body under the proposed regulations. Addition of a direct assessment program would also now trigger the need for accreditor approval. Changes that could be reviewed by senior agency staff under the proposed regulations include addition of programs that represent a significant departure from prior offerings, a change in the way the institution monitors student progress, the addition of a permanent location at which the institution is conducting a teach-out, and written arrangements for Title IV-ineligible entities to offer between 25% and 50% of a program. Changes that would require only reporting to the accrediting agency within 30 days include: change in an existing program’s method of delivery, and entering into a written agreement with a non-eligible provider to provide less than 25% of a program.

ED proposes to remove the current prohibition on retroactive approvals of substantive changes. Instead, it sets parameters under which retroactive approval can be granted, provided the retroactive approval date does not pre-date the point at which the institution or program was considered compliant. ED seeks to permit this retroactive approval to address circumstances where students who attend new programs prior to program approval do not receive the recognition of having attended an accredited program, which can have adverse impacts on future studies or entry into the workforce. ED proposes related new regulatory language in 34 CFR 602.23 that states that credits and degrees earned during pre-accreditation status are to be considered the same as those earned from a program or institution with accredited status, again with the intention of protecting students from the appearance of holding less valuable credentials.

Proposed changes to 34 CFR 602.26 would require an accrediting agency to provide written notice of a final decision of probation or equivalent status, or an initiated adverse action, to ED and to states at the same time it notifies the institution or program of the decision, in place of the current notification timeframe of 30 days. Institutions would be required to disclose these actions to current and prospective students within 7 business days.

The proposed language adds a requirement for accreditors to 34 CFR 602.31 that students’ personally identifiable information (PII) be redacted from all agency submissions to ED to protect student privacy, especially with respect to Freedom of Information Act (FOIA) requests, which ED notes have increased.

Proposed 34 CFR 602.32(e) would allow ED staff to view any evidence that an agency was part of a concerted effort to unnecessarily restrict an institution’s religious mission, the qualifications necessary for a student to sit for a licensure or certification examination, or the ability for a student to otherwise be eligible for entry into a profession as a negative factor when considering an application for initial recognition, or expansion of scope of recognition.

A proposed change to 34 CFR 602.25 removes authority for accreditation appeals panels to reverse decisions made by the accrediting body, permitting appeals panels to only affirm, amend, or remand adverse actions of the accrediting body.

Comments are due to ED on July 12, 2019, after which ED will review and respond to comments received and publish final rules. In accordance with master calendar rules, if final rules are published by Nov. 1, 2019, the rules will go into effect on July 1, 2020. NASFAA is interested in your thoughts on this topic. Please provide feedback to NASFAA at [email protected]


Publication Date: 6/17/2019

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