By Maria Carrasco, NASFAA Staff Reporter

The Department of Education (ED) continued its negotiated rulemaking session on Wednesday, this time with negotiators discussing issues around return to Title IV funds (R2T4) and accreditation. 

Wednesday’s session began with negotiators discussing ED’s issue paper on R2T4, which had some new updates to the draft regulatory text added by the department. One provision negotiators all supported was ED’s reinstating the provision that a student is not considered to have withdrawn if the student successfully completes one module that includes: 49% or more of the number of days in the payment period; or a combination of modules that when combined contain 49% or more of the number of days in the payment period; or coursework equal to or greater than the coursework required for the institution's definition of a half-time student. 

ED had initially proposed to remove this language from the regulations but was swayed by negotiator arguments that there are instances where this provision is especially beneficial to students, including during summer terms.

The negotiators then moved on to discuss language ED developed about withdrawals by incarcerated students due to circumstances beyond their control. Initially, ED proposed that a confined or incarcerated individual is not considered to have withdrawn in instances of correctional facility-wide lockdown, involuntary transfer to a different correctional facility, or other events as determined by ED’s secretary.

Dave Musser, a federal negotiator representing ED, said that after internal discussions, the department determined that it doesn’t have the authority to waive R2T4 requirements for a targeted group of students like their proposal would have done. In response, ED amended language in the leave of absence regulations to add that students enrolled in a prison education program need not return to their program from an approved leave of absence where they left off, and the student could come back at a different point in their prison education program (PEP). The institution would still have to adhere to all other requirements of a leave of absence, ED clarified. The negotiators were in support of this new language. 

However, where negotiators disagreed with the department was on language about the withdrawal date for a student who withdraws from an institution that is required to take attendance. The department proposed language that an institution is required to take attendance if the institution offers a course entirely through distance education, which they changed from the first round of negotiations where they referred to a program offered entirely through distance education. 

Multiple negotiators, including Jillian Klein, representing proprietary institutions of higher education, raised concerns that ED’s language implies that if an institution offers one course via distance education, the entire institution is required to take attendance. 

Musser said this language only applies in cases where the student is taking a course through distance education. He clarified that in cases where a student is taking some courses through distance education and some not through distance education, the institution is not considered required to take attendance.

Klein urged ED to make that language clearer to represent the department’s intentions, and that as written, the language suggests that if an institution offers one course via distance education, the institution would be required to take attendance for all courses. 

“I would just suggest clarity, because I think it reads really clunky,” Klein said. “Respectfully … I think it would make more sense if you would actually just edit the language to say what it is you're saying right now.”

Additionally, Jason Lorgan, representing public four-year institutions of higher education, told negotiators that he asked financial aid administrators from the University of California system to interpret the language ED proposed on attendance. He said the financial aid administrators interpreted it to mean that the entire institution would be responsible for taking attendance. 

The negotiators concluded the conversation on R2T4, and moved on to begin the discussion of ED’s issue paper on accreditation. One key issue negotiators discussed was who can be on a program accrediting agency’s decision-making body as a “representative of the public.” 

Under the drafted regulatory language, ED amended its original proposal that banned individuals such as former trade association members, employees of institutions that are accredited by the agency, and employees of the accrediting agency itself. The changes placed a 5-year time gap before working in such capacities and serving on and accrediting agency decision-making body, whereas initially the ban was for the individual's lifetime. 

Additionally, under ED’s proposal, a family member of an individual who doesn’t qualify to be a “representative of the public'' under those provisions can also not be a representative. That includes a parent, step-parent, sibling, step-sibling, spouse, child, step-child, grandchild, step-grandchild, spouse's parent or step-parent, and more. 

Some negotiators were not in support of the language added, including Laura Rasar King, who represents programmatic accrediting agencies recognized by ED’s secretary. Rasar King said the language “borders on the absurd,” since the language expands on who from a family cannot be considered a representative of the public. 

“I think definitions of immediate family members would be a better definition in this place,” Rasar King said. “And I think the definition that was there previously was really perfectly adequate.” 

Barmak Nassirian, representing U.S. military service members and veterans, called on ED to not solely focus on the representatives of the public, but to focus on creating language that would make program accrediting agency boards have more outside experts, rather than trade representatives and CEOs.

“We are here obsessing about the one or two or three members of these boards, who represent the public when everybody else is an insider,” Nassirian said. “And I don't think accreditation was intended to have executives and fiduciaries of regulated entities calling the shots.”

Another topic of discussion was around administrative and fiscal responsibilities of an accrediting agency. The agency must, under ED’s new language, have adequate administrative staff, data and technology infrastructure, and financial resources to carry out its accrediting responsibilities. 

While most negotiators were in support of that language, some negotiators, including Nassirian, pressed ED to add more language to prevent accreditation agencies from including individuals who are a fiduciary of the institution seeking accreditations from participating in agency actions. Negotiators representing accrediting agencies pushed back, arguing that accreditors need institutional senior officials and business officers to be involved in the process in order to speak to issues like financial sustainability and planning. 

Additionally, negotiators discussed accreditation and pre-accreditation standards. Under ED’s drafted regulatory text, accrediting agencies standards must set forth “clear minimum expectations of performance” that the agency must verify and enforce for the institutions or programs it accredits. That includes using “consistent and reliable data” which may include federal data, ED wrote. 

Some negotiators said that the language may be too strong for accrediting agencies, and that agencies should focus more on student outcomes, rather than educational inputs. Other negotiators urged ED to enforce that all accrediting agencies be required to use federal data when evaluating their performance – noting that data could be manipulated by agencies otherwise. 

The discussion ended with a conversation on enforcement of accreditation standards, which will continue on Thursday. Stay tuned to Today’s News for more coverage on the session. Those interested in watching the session can register on ED’s website. 

Publication Date: 2/8/2024

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