Program Integrity and Institutional Quality Committee
Fails To Achieve Consensus On Five of Six Issue Papers

Overview
Just before 5 PM ET yesterday afternoon, members of the Program Integrity and Institutional Quality Federal Negotiated Rulemaking Committee voted against consensus on a series of revisions to Issue Paper 5: (www2.ed.gov/policy/highered/reg/hearulemaking/2023/session-3-accreditation-regulatory-text-v3.pdf) Accreditation, bringing to a close the 2023-2024 Federal Negotiated Rulemaking process. Earlier in the day the Committee was unable to reach consensus 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 – the two additional issues unresolved heading into the final day of deliberations.

Despite “concessions” on the part of the Department on two of the three outstanding Issue Papers (State Authorization and Accreditation) making revisions to the final draft proposals shared in advance of the final session; and submission of a proposals submitted by non-Federal negotiators proposal to replace the elimination of the ability of clock hour, distance education programs to provide asynchronous educational instruction with a very stringent set of administrative criteria the proposed revisions were not enough to bring the Committee together.

On the final day, the Committee started with a review of a third set of revisions to Issue Paper 2: (www2.ed.gov/policy/highered/reg/hearulemaking/2023/state-authorization-session-3-final-03072024-edits.pdf) State Authorization (Note: this version is the last circulated version combining revisions made from two earlier versions on the package drafted and honed over the course of the final session – all of the proposals circulated during the final session are available for review here (www2.ed.gov/policy/highered/reg/hearulemaking/2023/index.html) ). As detailed in the comments of the final draft, the Department did make a number of “compromises” based upon the final negotiations, including revisions to the authorization exemption requirements, as well as multiple revisions to the proposal related to the State Reciprocity Agreement requirements and process.

The revisions helped to mitigate the opposition of some, but not all of the non-Federal negotiators who were seeking revisions, while at the same time unsettling other non-Federal negotiators who supported the proposal presented by the Department at the beginning of the final session. With both sides more fully entrenched in their views based upon the opportunity to submit new revisions, the final review and discussion was simply a restatement of positions (Note: all of the proposals can also be found under the link above.). The lack of support for the final draft, despite the Department’s efforts to find a middle-ground, were not only blatantly evident during the final discussions, but carried through to the vote – as a majority of votes from the non-Federal negotiators (representing opposing views) opposed the package and consensus was therefore not achieved.

The Department then immediately turned to Issue Paper 3: Distance Education where the negotiator for the Department shared with the Committee that they were not swayed by a proposal submitted by a group of non-Federal negotiators that would have required accrediting agency review of all clock hour, asynchronous educational instruction in distance education. The Department’s representative stated that the proposal lacked the safeguards/guardrails that were previously discussed and therefore were not compelled to revise the provision in the Issue Paper/package. The vote on consensus was called for and several non-Federal negotiators opposed consensus.

For the remaining hour plus in the morning, and through an afternoon session that was extended for an additional hour, the Committee systematically went through a review and discussion of the proposed revisions to section after section of Part 602 – The Secretary’s Recognition of Accrediting Agencies. Time and time again the non-Federal negotiators representing accrediting agencies and the institutions that they accredit across all sectors of higher education reiterated earlier concerns with directives contained within the prior proposal and reacted to new additions added prior to the final session.

Major opposition was expressed with the fundamental revisions to the regulations regarding the standards that accrediting agencies are to use in the oversight of institutions, the process and timelines for monitoring and reevaluation of accredited institutions – including new requirements regarding site visits to various locations, a focus on the evaluation and review of direct assessment programs, and governance of the operations of the accrediting agency itself. And that’s just for starters. The proposed rewrite also completely modifies the oversight and review process of accrediting agencies by the Department and the National Advisory Committee on Institutional Quality and Integrity.

The Committee completed the review and the Department went into caucus late in the afternoon to take into consideration the roughly one full day of discussion on the complete retooling of accreditation and came back with a half dozen revisions, mostly cosmetic, which were hastily gone through in about twenty minutes. With little time to even take in the proposals, much less digest them, the vote on consensus was put forward. The vote failed to achieve consensus as non-Federal negotiators representing the agencies and the institutions all opposed the package.

Final Tally
The Committee Voted In Favor of Consensus
Issue Paper 6: TRIO

The Consensus Voted Against Consensus
Issue Paper 1: Cash Management
Issue Paper 2: State Authorization
Issue Paper 3: Distance Education
Issue Paper 4: R2T4
Issue Paper 5: Accreditation

What’s Next
Without consensus, the U.S. Department of Education has the authority to develop regulatory proposals in five of the six topics included in the Program Integrity and Institutional Quality negotiations as they see fit. This means that even all of the “concessions” and “compromises” that have been summarized and shared during this final week’s negotiation are not required to be included in the proposals when they are shared with the public as a Notice of Proposed Rulemaking. In fact, it is highly likely that many of the changes will not be part of the proposals when the NPRM is published.

For a recap of the entire negotiations and more on the process ahead, join us next Thursday for CSPEN’s Federal Legislative & Regulatory Update.

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