Session 3 – Day Four Agenda
Accreditation, State Authorization, and Distance Education
Must Be Voted On Today
Overview
On Wednesday the Program Integrity and Institutional Quality Federal Negotiated Rulemaking Committee (Committee) finalized negotiations without achieving consensus on Issue Paper 1: (www2.ed.gov/policy/highered/reg/hearulemaking/2023/session-3-issue-paper-cash-management-v3.pdf) Cash Management, continued to take proposals and hold caucus discussions on Issue Paper 2: (www2.ed.gov/policy/highered/reg/hearulemaking/2023/session-3-issue-paper-state-authorization-v3.pdf) State Authorization and Issue Paper 3: (www2.ed.gov/policy/highered/reg/hearulemaking/2023/session-3-issue-paper-distance-education-v3.pdf) Distance Education, and began a final review, set to conclude tomorrow, on the comprehensive revisions to Accreditation as proposed within Issue Paper 5: (www2.ed.gov/policy/highered/reg/hearulemaking/2023/session-3-accreditation-regulatory-text-v3.pdf) Accreditation. A summary of Wednesday’s negotiations is below.
The morning session on Issue Paper 1: Cash Management picked up where it had left off the prior afternoon with considerable, sometimes heated, negotiations primarily on topic surrounding the proposed regulations on books, supplies, and equipment, but also with coverage on other major revisions contained within the proposal such as the Tier One and Tier Two relationships between institutions of higher education and external, third-party banks/lenders and new limits on fees, surcharges, and more, and revisions previously noted in yesterday morning’s email on Pell and SEOG overpayments. Ultimately, as the Committee prepared to break for lunch, a vote on consensus was called for despite so many open topics. The vote failed with a significant number of non-Federal negotiators opposing the proposal.
The afternoon began with a request for a caucus on Issue Paper 2: State Authorization by a group of non-Federal negotiators and the Department before turning to the beginning of a final section-by-section discussion on the Accreditation proposals. Throughout the afternoon the Committee was able to get through about a third of the document and initial – and based upon the direct answer to a question posed by one of the non-Federal negotiators — likely the only discussion on several important topics that are concerning not only to the representatives for the accrediting agencies, but for many of the institutional representatives as well.
The first major set of topics where concerns were again expressed regarding new limitations on who can serve as a “representative of the public” on accrediting commissions, the impact the limited definition would have on meeting the other regulatory requirements related to the composition of the entire accrediting commission, and new language which prohibits a majority of the agencies decision-making body from being an executive officer or board members of the agency’s accredited institutions or programs.
Non-Federal negotiators expressed multiple concerns with the underlying proposal they had already seen, but focused on new portions of the proposals added prior to the last session which are cause for additional concern. One such area is how the Department defines an “executive officer” and how, depending on the definition/interpretation, this could significantly impact the complexion of current agency review and decision-making capabilities.
The next major issue discussed was revisions to the standards used by the accrediting agencies to oversee institutions. The revisions in this area appear to some to overstep the authority and limits included in the statute for the Secretary and the Department to prescribe specific standards. Nevertheless, the Department’s counsel said that they believe that they have the authority and as a result prescribe that going forward under the new regulations place a premium on “student achievement” and the specific criteria that must be included in each accreditors standards. The accreditors not only expressed concerns with the directives that they were to follow in oversight of institutions, but also noted the impact that this new language would have on the Department’s oversight and evaluation of the accreditor in the course of their recognition.
And finally, there were discussions regarding the potentially erroneous placement of criteria to be used by accreditors to prevent manipulation of inflation of an institution/programs performance being linked solely to the review of distance education programs. The Department agreed with many non-Federal negotiators that this is a overarching enforcement issue, not one limited to just distance education programs provided by institutions. However, the Department’s counsel did note that their intent in placing the specific revision under distance education oversight was intended to help address specific concerns with “technological issues” (e.g. student participation monitoring) determined to be more prevalent in distance education. The Department agreed it would review the placement of the language and intent of the concern as the days negotiations concluded.
Today, in what is likely to be a very fast-paced and potentially chaotic effort on the part of the Committee to complete consideration of the Accreditation package and revisit the State Authorization, and Distance Education Issue Papers/packages appears to leave little to no room for any revisions. The Committee has a very long way to go and a very short time to get there.
Handicapping The Final Day and Conclusion of Program Integrity and Institutional Quality Negotiations
Issue Paper 5: Accreditation
CSPEN believe that the Committee will be hard pressed to thoroughly review and discuss the new additions to the proposal if that were the only topic for the entire final day – much less potentially consider new proposed revisions. It seems highly likely that the clock will run out on consideration of this voluminous and momentous rewrite of Part 602 – The Secretary’s Recognition of Accrediting Agencies and that multiple non-Federal negotiators will oppose a vote on consensus. CSPEN would not be surprised if one or more non-Federal negotiators requested an additional meeting to further vet the package and provide time for potential revisions to be developed both by the Department and the Committee.
Issue Paper 2: State Authorization
Since discussion on the issue was tabled for further consideration on Tuesday a considerable number of proposals seeking to further define and modify the changes the Department proposed, while others not only seek to repeal the most recent changes, but add even more directed oversight to the prior proposal.
CSPEN is certain that this proposal will be opposed by one or more non-Federal negotiator, and in fact, may find opposition coming from both those seeking to revise the compromise language of the Department as well as those who authored the original language.
Issue Paper 3: Distance Education
A number of non-Federal negotiators worked earlier in the week on the development of new regulatory language in an attempt to address some of the outstanding concerns related to the repeal of the delivery of asynchronous instruction via distance education by clock hour institutions of higher education.
CSPEN anticipates that the Department may make some changes in this area based upon the proposals, but believe that any revisions with be met with opposition from non-Federal negotiators who support the existing language and have already expressed reservations regarding the potential for any “safeguards” or “guardrails” to be sufficient to ally their concerns.
Given the differences of opinion witnessed throughout the negotiations, one or more non-Federal negotiators will undoubtedly oppose consensus on this package.
Live Stream Registration
For those of you interested in viewing the final day of the negotiations live, register here.
What’s Next
With the Program Integrity and Institutional Quality Federal Negotiated Rulemaking ending today, CSPEN will provide a wrap-up of the final day’s negotiations tomorrow.
Heading into the final day, here are the status of each of the six major Issue Papers:
Issue Paper 1: Cash Management – No Consensus
The Committee voted against consensus on the revisions contained within the package on day three of the final session (Wednesday). Without the support of the Committee the Department is left to develop a proposed list of changes that will be published in a Notice of Proposed Rulemaking for public comment in advance of final publication in the Federal Register as a Final Rule later this year.
Issue Paper 2: State Authorization – OPEN
Issue Paper 3: Distance Education – OPEN
Issue Paper 4: R2T4 – No Consensus
The Committee voted against consensus on the revisions contained within the package on the first day of the final session (Monday). Without the support of the Committee the Department is left to develop a proposed list of changes that will be published in a Notice of Proposed Rulemaking for public comment in advance of final publication in the Federal Register as a Final Rule later this year.
Issue Paper 5: Accreditation – OPEN
Issue Paper 6: TRIO – Consensus Achieved
The Committee voted in favor of consensus on the revisions intended to expand eligibility for all students who have enrolled in or who seek to enroll in a high school in the United States, territories, or Freely Associated States, which are the geographic areas served by the TRIO programs. The agreed upon regulations will next be published in a Notice of Proposed Rulemaking for public comment in advance of final publication in the Federal Register as a Final Rule later this year.
