Session 3 – Day Three Agenda
Cash Management and Accreditation
Distance Education and State Authorization Issue Remain Open
Overview
On Tuesday the Program Integrity and Institutional Quality Federal Negotiated Rulemaking Committee (Committee) finalized negotiations and achieved consensus on Issue Paper 6: (www2.ed.gov/policy/highered/reg/hearulemaking/2023/session-3-issue-paper-trio.pdf) Federal TRIO Programs, spent the vast majority of the day going through a section-by-section assessment of the proposed regulatory revisions contained in Issue Paper 2: (www2.ed.gov/policy/highered/reg/hearulemaking/2023/session-3-issue-paper-state-authorization-v3.pdf) State Authorization – withholding a vote on the package until the Committee has time to review and respond to a significant set of “compromises” the Department presented to the Committee for consideration late in the afternoon, and began a final review of Issue Paper 1: (www2.ed.gov/policy/highered/reg/hearulemaking/2023/session-3-issue-paper-cash-management-v3.pdf) Cash Management to conclude the day A summary of Day Two is provided below.
Today’s deliberations are set to pick up with further discussions on Issue Paper 1: Cash Management in the morning. Given where yesterday’s discussions on Cash Management concluded, CSPEN anticipates that some non-Federal negotiators may begin the day by offering proposed new language on topics related to broader issue of the relationship between books and supplies to tuition and fees and cash meal plans. But with time becoming more and more limited, and with several other key issues to discuss within the package, we suspect that the Department will push to move forward with discussions regarding Tier One and Teir Two relationships between institutions and third-party banking organizations and also the new Federal Pell Grant and Federal SEOG overpayment proposal unveiled in the final draft.
According to the Agenda, the Committee is slated to complete consideration on the Cash Management Issue Paper/package by the midday break. It will be important to see whether or not the Committee will hold to this schedule.
Per the Agenda, the remainder of this afternoon and all day tomorrow are scheduled to be used for final negotiations on Issue Paper 5: (www2.ed.gov/policy/highered/reg/hearulemaking/2023/session-3-accreditation-regulatory-text-v3.pdf) Accreditation – a sixty-nine page, comprehensive revision to Part 602 – The Secretary’s Recognition of Accrediting Agencies.
The Department describes the proposal as a set of revisions that “seeks to 1) implement a process that focuses on the areas of greatest risk among accrediting agencies and in accrediting agencies’ reviews of institutions, 2) increase the rigor of accreditation, 3) support and strengthen accreditation as a critical pillar of the regulatory triad, and 4) simplify, clarify, and streamline regulations to better align goals across the Department.”
The set of draft regulatory revisions does all of this and more. Simply stated, it dismantles the accreditation process as we currently know it, proposes a new regime that has less to do with academic assessment and everything to do with oversight and enforcement, and more. Should make for an interesting afternoon and day tomorrow!
Handicapping Day Three
CSPEN doubts that the Committee and the Department will be able to overcome several differences contained in Issue Paper 1: Cash Management to achieve consensus. Yesterday’s negotiations continued to highlight opposition for the major revisions related to the exclusion of books and supplies from tuition and fees and many specific concerns regarding nuances within that section of the proposal. And this is just one of three to four major sticking points (e.g. cash reimbursement of unused “meal plan,” major changes to the relationship between institutions of higher education and third-party banks and lenders, et. al.) that suggest that at least one or more non-Federal negotiator will oppose consensus of the package.
CSPEN predicts that the Department will face immediate and formidable opposition to the entire package of proposed revisions to
Issue 5: (www2.ed.gov/policy/highered/reg/hearulemaking/2023/session-3-accreditation-regulatory-text-v3.pdf) Accreditation from many different non-Federal members of the Committee as deliberations on this package begin. We anticipate that the discussions will continue into Thursday, with one or more non-Federal negotiators opposing consensus on the Issue Paper/package when a vote is called for.
Day Two Summary
Issue Paper 6: (www2.ed.gov/policy/highered/reg/hearulemaking/2023/session-3-issue-paper-trio.pdf) Federal TRIO Programs
As CSPEN predicted, the Committee supported the regulatory proposal developed and submitted to the Committee by a subcommittee and 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.
Issue Paper 2: (www2.ed.gov/policy/highered/reg/hearulemaking/2023/session-3-issue-paper-state-authorization-v3.pdf) State Authorization
As CSPEN predicted, following less than an hour of presentation, discussion, and a vote in favor of consensus on TRIO, the Committee spent the remainder of the morning and all but the last forty-five minutes of afternoon negotiations on State Authorization.
At the start of the day the Department agreed to requests from the non-Federal negotiators to conduct a section-by-section final review of the proposal, so that the most recent proposed changes could be discussed in context with the other revisions contained within the earlier drafts. Throughout the process, multiple non-Federal negotiators asked questions and offered concerns with the various proposals, making it very clear that without revisions – at a minimum to the changes made in the authorization “exemption” process and major rewrite or withdrawal of the regulatory revisions with respect to State Reciprocity Agreements – the vote on consensus would fail.
Recognizing the growing opposition, various groups both with, and without, the Department called for caucus meetings to discuss whether or not there was any potential for compromise and broad support for the Issue Paper/package. Afternoon caucuses resulted I the Department submitting to the Committee for consideration a “compromise” which in their view attempted to address the concerns raised regarding both major topics. A presentation of the most recent changes and notice by the Department of their intent to make additional revisions within the next day seemed to gain support from many within the groups with concerns. Unfortunately, these potential revisions, not even fully fleshed-out, met with opposition from other non-Federal negotiators who were heavily involved in the drafting of the existing regulatory language.
In keeping with the Agenda, the Committee tabled further discussion for the evening in order to allow everyone to review the new draft, share it with their constituencies, enable the development of proposals in furtherance of the latest draft, all with the goal of providing the opportunity for a vote on the complete Issue Paper/package as soon as possible.
All of the Committee is reviewing this evening the Department’s proposed compromise and considering what potential additions and revisions should be offered in response to the most recent draft. Throughout today’s negotiations Jilian Klein, on behalf of the private, for-profit institutional community, as well as many other negotiators, shared requests and proposals which are now being turned into draft language to amend the most recent draft.
A major problem is – when will the Committee have any time to thoughtfully consider and vet any forthcoming changes and the overall package given the limited time remaining in the negotiations.
Issue Paper 1: (www2.ed.gov/policy/highered/reg/hearulemaking/2023/session-3-issue-paper-cash-management-v3.pdf) Cash Management
As previously noted, the Committee barely got into discussions regarding the final regulatory proposal before the day concluded. But in the forty-five minutes of discussions that they did have, it was once again very clear that there is considerable opposition to the prior and updated revisions to the myriad of proposed revisions related to books and supplies, their exclusion from current inclusion in tuition and fees on student’s ledger cards, the new student/parent notification and acceptance requirements by payment period or period of enrollment for books and supplies, a lack of understanding by many of the benefits to the students of “bundling” of academic course materials and kits, and more.
There are many other important topics, as noted above, that will be discussed today, many with notable opposition to the existing regulatory proposals.
Will the Committee give these issues the time they deserve? Will a vote on consensus be withheld in order to entertain additional revisions to this Issue Paper/package? And, once again, how will they fit these important opportunities for further revisions into the remaining time?
Day One Summary Update
Issue Paper 3: (www2.ed.gov/policy/highered/reg/hearulemaking/2023/session-3-issue-paper-distance-education-v3.pdf) Distance Education
A number of non-Federal negotiators worked Monday night and yesterday 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 proposal, potentially along with others, will either be brought up sometime today, or more realistically tomorrow (Thursday) as part of very truncated discussions.
We hope that the proposal will be supported, as it would maintain the ability for clock hour programs providing distance education to offer educational instruction in an asynchronous manner, but with additional oversight by accrediting agencies.
Live Stream Registration
For those of you interested in viewing the final day of the negotiations live, register here (web.cvent.com/event/ecad855b-f15d-403b-86d0-7515d116ed39/regProcessStep1) .
What’s Next
CSPEN will provide a summary of the final outcome or latest status – and handicapping – of all of the outstanding Issue Papers heading into the final day of the final session in tomorrow morning’s email.
As it stands right now, here is a tracking of the six major Issue Papers:
Issue Paper 1: Cash Management – OPEN
Final deliberations to take place today, with an anticipated vote on consensus to follow. However, as has taken place with both Distance Education and State Authorization, there may still be calls for consideration of final revisions, additions, or deletions to the existing draft, which push a final vote on consensus until Thursday.
Issue Paper 2: State Authorization – OPEN
Final deliberations are pending the review and response by the Committee to new, revised “compromise” language developed by the Department during Tuesday’s session. The Committee will have to make time for further debate on the new draft and any revisions to be proposed either today or tomorrow.
Issue Paper 3: Distance Education – OPEN
Final deliberations are pending the review and response by the Committee of proposed revisions to the draft regulations developed and offered by non-Federal negotiators on key issues. The Committee will have to make time for further debate on the new draft and any revisions to be proposed either today or tomorrow.
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
Final deliberations begin today and are scheduled to be completed tomorrow with a vote on consensus to follow.
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.
