Neg Reg 2019 to Create New Opportunities for Universities

Neg Reg 2019 to create new opportunities for universities.

The U.S. Department of Education issued its “Notice of Proposed Rulemaking,” which was published it in the Federal Register last week.  This is a big deal as there are multiple changes coming down the pike that most universities and colleges will embrace.

The latest Neg Reg which concluded in April represents a critical shift, one that bears watching, because of the competing tensions among federal oversight, institutions, and accreditors as the higher ed marketplace shifts toward a more dynamic, open, learner-centered postsecondary system. This also will result in increased partnerships, including public-private partnerships.

To briefly recap, this latest Neg Reg process began with the Department proposing some very ambitious (and, in some cases, controversial) thoughts around changes to the accreditation process. It ended in the group achieving consensus on many of the proposed changes. This consensus amazed people who understand the process, which was a good thing.

Having said that…

A current regional accreditor president recently reminded me that just because the Neg Reg process came to consensus doesn’t mean that these are the final rules.  The Department will take public comments, review them and then make any changes they see fit to what the Neg Reg negotiators worked out. There need be only one comment made and the proposed guidance can be changed.

The Neg Reg Process

Now that the Notice has been published, the 30-day period for public comments begins. Following that, the Department will compile and review the comments, before issuing the final guidance.

The Department will strive to publish the final rules in the Federal Register by November 1 of this year. This date is significant. If the rules are published by that date, they go into effect on July 1, 2020. However, if the administration misses the date, they will go into effect on July 1, 2021.

The importance of this date cannot be overstated. If guidance is not published by November 1, 2019, it cannot go into effect until July 1, 2121, which will allow the next administration to override the guidance. In fact, the current administration has overridden (or at least attempted to) significant amounts of guidance that were put forth by the Obama administration.

This was the case with Borrower Defense to Repayment (BDR) and Gainful Employment (GE) late last year. Because the Department did not issue final guidance by November 1, 2018, the rules were delayed from going into effect until July 1, 2020 (vs. July 1, 2019).

Areas of Change

The Department put forth the following changes in its Notice of Proposed Rulemaking

• “Revise the requirements for accrediting agencies in their oversight of member institutions and programs to be less prescriptive and provide greater autonomy and flexibility in order to facilitate agility and responsiveness and promote innovation;
• Revise the criteria used by the Secretary to recognize accrediting agencies to focus on education quality and allow competition;
• Revise the Department’s process for recognition and review of accrediting agencies;
• Clarify the core oversight responsibilities among each entity in the regulatory triad–accrediting agencies, States, and the Department–to hold institutions accountable;
• Establish the roles and responsibilities of institutions and accrediting agencies in the teach-out process;
• Establish that the Department recognizes an institution’s legal authorization to operate postsecondary educational programs when it is exempt from State authorization under the State constitution or by State law as a religious institution with a religious mission;
• Revise the State authorization requirements for institutions offering distance education or correspondence courses; and
• Remove the regulations related to the Robert C. Byrd Honors Scholarship Program, which has not been funded in many years.”

Impact on Higher Ed Leaders

Let’s take a deeper dive into what these mean to you as institution presidents and leaders. I have not listed all the changes as many are specifically directed at accrediting bodies, but there are enough here to keep everyone busy for at least a little while….

Requirements for Oversight by Accreditation Agencies  

• Accreditation agency staff will be allowed to approve “substantive changes” instead of having them go to the accrediting agency’s commissioners. Minor changes to an institution’s mission or program objectives would no longer need substantive change review. Examples of substantive change include: changes in student progress measurements, including clock/credit hours, semester/trimester/quarters, and non-time-based methods; new locations or branches; or significant departures from prior offerings. Staff would be required to make final decisions within 90 days of receipt of a request.
• Institutions who are out of compliance (probation, show cause, suspension) will be given more time to come into compliance (up to four years instead of the current maximum of two years).
• An accreditor may continue to accredit an institution who has not come into compliance for a reasonable period of time so they may complete a teach-out agreement.
• Accreditors may limit sanctions to “specific programs or additional locations of an institution” that are out of compliance, instead of “taking action against the entire institution and all of its programs, provided the noncompliance was limited to the particular programs or locations.”
• Institutions who are “struggling” (probation, show cause, reimbursement, heightened cash monitoring, or suspended/termination of accreditation) will be required to have teach-out plans on file with their accreditor, and in some cases, teach-out agreements with the institution who will execute the teach-out if they go out of business.

Changes Affecting Institutions of Higher Learning

• Institutions will be required to go to arbitration before embarking on legal action against their accrediting body for adverse actions.
• The definition of “faculty” is changing so as to make it more relevant to the type of institution, e.g., faculty who teach at comprehensive or research institutions would and should have different qualifications than those who teach at career or technical educational institutions.
• There can be “separate faculty standards for instructors teaching courses within a dual or concurrent enrollment program, or career and technical education courses, if the instructors are qualified by education or work experience for that role.” This directly impacts those CBE-type programs that do direct assessment of skills vs. teaching.
• Accrediting agencies can have “separate standards regarding an institution’s process for approving curriculum,” i.e., taking input from industry advisory boards, recognized industry standards and organizations, credentialing/licensing, or employers.
• The Department explicitly said that sometimes faculty should NOT be given a stronger voice that employers in curriculum decisions.
• The Department explicitly stated that “institutions and programs must have full autonomy to make faculty and curriculum decisions that align with stakeholder recommendations, including the hiring requirement of employees.” This is different that many accreditors’ current guidance, which comes when it comes to “shared governance.”
• The Department will recognize an institution’s legal authorization to operate post-secondary educational programs when it is exempt from State authorization under the State constitution or by State law as a religious institution with a religious mission.
• The State authorization requirements for institutions offering distance education or correspondence courses is changing. Instead of referring to the student’s location, institutions must recognize the student’s residence at the time of the student’s initial enrollment in a program and upon formal notification of the student’s location having changed to another State.  This will require institutions maintain a formal process by which the student can log into the institutions system to indicate a new address.
• The accreditation process will include a focus on continuous improvement instead of the “strict, and often bureaucratic, requirements for a self-study.”
• The requirements for assessment will change to make them less prescriptive or technical so that institutions do not need to hire “outside consultants to maintain accreditation.” Additionally, when undergoing peer review, the reviewers “should be more open to evaluating the materials … and considering them in the context of the institution’s mission, students served, and resources available.”
• Institutions will no longer be required to submit to the substantive change process for adding new locations provided that they had successfully completed least one cycle of accreditation, had received accreditor approval for having added at least two other locations, and had not been sanctioned or subject to a negative action in the past three years. They must report the addition of a new location within 30 days to their accreditor.
• Institutions will be required to disclose “any placement rate that it publishes or uses in advertising” and will no longer be required to identify the source of the information or any “timeframes and methodology associated with it.”
• Institutions will now be required to inform prospective or current students of a number of other areas, e.g. if a program fulfills educational requirements for licensure or certification if designed to or advertised as, institutions from which they will not accept transfer credits, percentage of students who receive Pell Grants, if it is required to have a teach out plan by the accreditor, and the reason for its requirement, etc.

Accreditation Agencies / Bodies

• Accreditation bodies wishing to expand into new areas of accreditation will not be required to demonstrate they have accredited institutions in those areas before being granted the authority to accredit – they only must demonstrate that they have the capacity (e.g., staffing and qualifications) to accredit institutions in an area.
• Accrediting agencies will no longer be geographically constrained, i.e., they can accredit institutions’ branch campuses when they are outside of their “traditional” geographic area.
• Accrediting bodies no longer must receive “third party recommendations” as part of their process of becoming an accreditation body. The Department says that this is to allow new entrants into the accreditation field, but it also relates back to the issues that arose when the DeVos administration restored ACICS’ authority to accredit institutions.
• Accrediting agencies have been required to maintain standards for degree and certificates that conform to “commonly accepted academic standards,” but the language “or the equivalent” has been added so as to provide for flexibility for pilot programs.
• Accrediting agencies can now demonstrate “substantial compliance,” i.e., that it has the “policies, practices, and standards in place and generally adheres with fidelity to those policies practices and standards, or has policies, practices, and standards that need minor modifications to reflect its generally compliant practices.” The Department also can use “monitoring reports” to make a determination of full compliance.
• Accreditation bodies who do not fully meet standards will now be monitored by the Department through a process that is NOT open to public scrutiny.
• Agencies will be required to publish their policies for retroactive application of accreditation decisions.

As you can see, there are many changes coming down the line.  Most are very good; others need more pondering.

Please remember that these regulations are not a done deal. If you feel strongly about the rules having to do with this latest round of Rulemaking, write to the Department and express your thoughts and feelings.

See more of our Neg Reg publications.