Editor's Note: On November 1, the Department of Education (ED) released its final rules regarding accreditation, state authorization of distance education, and student assistance general provisions. The rules become effective July 1, 2020. This article is the third in a series of three analyzing the rules, and will focus on accreditation.
These rules are the culmination of the work of 2018-19 negotiated rulemaking sessions, which also included discussions on faith-based entities, the Teacher Education Assistance for College and Higher Education (TEACH) Grant program, and distance learning — none of which have seen proposed rules published for public comment. As a reminder, negotiators reached consensus during those rulemaking sessions, which meant that ED was obligated to publish the consensus regulatory language in its proposed regulations, which were released in June. Changes from the proposed rules reflect ED’s incorporation of public comments. See all of NASFAA’s coverage of the rulemaking process.
After reviewing public comment, ED did not make any substantive changes to the proposed rules in the area of accreditation, opting only to make technical corrections and add clarifying language.
The final rules add a new definition to 34 CFR 602.3 for the term “monitoring report,” which is now a new tool that addresses oversight for accreditors that have been found to be in “substantial compliance” (for which a new definition is also included) 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 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.
Scope of Recognition
Under the new rules, “geographic area” is removed 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 regulations 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.
Generally, per 34 CFR 602.12, agencies seeking initial recognition must have conducted at least two years of accrediting activities. The final rules waive the two-year requirement in cases where the agency seeking initial recognition is an affiliate or division of an already-recognized agency. Although the rule does not define “affiliate,” ED explains in the preamble discussion that it interprets the term to mean an entity that is closely associated with the recognized accrediting agency seeking to establish a new accrediting agency.
Related to the expansion of the scope of recognition, the final rules also remove the requirement that agencies must have accredited institutions or programs in the area(s) of expanded scope at the time it applies. A change to an agency’s geographic area is not considered an expansion of scope and, in those instances, only notification to ED and public disclosure on the agency website are required.
The final rules loosen the administrative capability requirements in 34 CFR 602.15 by requiring that an agency employ 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 (but not required) public representatives on agency decision-making bodies.
New language in 34 CFR 602.16 permits 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, changes to 34 CFR 602.20 are intended 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 will still be required to have policies for immediate adverse action when warranted. Agencies will have the discretion under the regulations to maintain a noncompliant institution’s or program’s accreditation for a reasonable time while the institution completes teach-out activities. Accreditors will also be permitted to limit adverse action only to noncompliant programs or locations without taking action against the institution as a whole.
Approval of Substantive Changes
The conditions under which institutions must request accreditor approval for substantive changes to their programs in 34 CFR 602.22 has been loosened 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 (as opposed to 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 will require the approval of the full accrediting body under the final regulations. The addition of a direct assessment program will also now trigger the need for accreditor approval. Changes that can be reviewed by senior agency staff under the final regulations include the 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 will require only reporting to the accrediting agency within 30 days include a 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.
The final rules remove the current prohibition on retroactive approvals of substantive changes. Instead, they set parameters under which retroactive approvals can be granted, provided the retroactive approval date does not pre-date the point at which the institution or program was considered compliant. ED permits 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. Related new regulatory language in 34 CFR 602.23 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.
Adverse Action/ED Authority
Changes to 34 CFR 602.26 will 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 will be required to disclose these actions to current and prospective students within seven business days.
The final rules add 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.
34 CFR 602.32(e) will 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.
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.
The final rules are effective on July 1, 2020.
Publication Date: 11/8/2019