House Committee Passes Reauthorization Bill

On February 7, 2008, the U.S. House of Representatives passed the "College Opportunity and Affordability Act" (H.R. 4137) reauthorizing the Higher Education Act (HEA). The vote was 354-58. The House bill is now companion to the reauthorization bill passed by the Senate on July 24, 2007 (S. 1642) with a vote of 95-0.

The Council for Higher Education Accreditation (CHEA) along with other higher education associations in Washington DC, signed a letter of support for HR 4137. While we remain concerned about a number of the bill’s provisions, we wanted to acknowledge that the House took important steps especially to address our issues with regard to preserving the right and responsibility of each institution to determine its own expectations and standards for student achievement. And, we will be working hard to address the remaining concerns in the next phrase of the reauthorization process.

As the House bill was being debated, the administration also expressed concerns about a number of its provisions, including accreditation. On February 6, 2008, the administration published a “Statement of Administration Policy,” (SAP) that “strongly opposed” the bill (but did not indicate that a presidential veto was likely forthcoming). One of the primary issues for the administration is the bill’s language to prevent the Department of Education from issuing regulations in the area of accreditation. Concerns were also expressed about the bill’s restructuring the National Advisory Committee on Institutional Quality and Integrity (NACIQI) appointment process.

In addition, Secretary of Education Margaret Spellings wrote an op-ed that appeared in the February 6, 2008 Capitol Hill newspaper Politico that criticized Congress for preventing regulation of accreditation and insisted that the Department be able to hold “…accrediting agencies accountable for ensuring the quality of programs and instruction at higher education institutions….” The Secretary talks about higher education and accreditation and the “…entrenched stakeholders who advocate the status quo.” She says that accreditation “…leaves students and taxpayers in the dark about what they’re actually getting for their money….” Spellings also says that the accreditation system is “…plagued with conflicts of interest…” and the process is “…insular, clubby and accountable to no one but themselves.”

The next step in the reauthorization process is the establishment of a House-Senate Conference Committee to resolve the differences between the two bills. Based on information available at this time, this conference may begin as early as the end of February. It is not clear whether we will have a reauthorization bill signed into law before the end of 2008, making it ten years since HEA has been reauthorized.

This Update provides an overview of the accreditation-related provisions in the newly passed House bill and compares (attached chart (PDF)) these provisions to current law and to the Senate bill. We also discuss the next steps to be taken as the bill moves to conference.

Student Achievement

The House bill language is very close to the Senate bill, assuring institutional discretion to set student achievement standards and outcomes. It adds “rules of construction” or language to interpret or clarify the role of accreditors and institutions in the accreditation process. In contrast to current law, both bills explicitly acknowledge the leadership role of institutions in setting standards for student achievement. Also in contrast to current law, both bills contain another rule of construction that limits the Secretary's regulation of student achievement.

Transfer of Credit

The House bill contains language on transfer of credit that is identical to the Senate bill. Both bills require accreditors to confirm that institutions have a transfer of credit policy, that the policy is published and that the policy includes the criteria used in considering transfer of credit requests from another institution. Current law does not contain these provisions.

Disclosure Requirements – Accreditation Process

The House bill requires that accreditors disclose information to the public about accreditation process and action. These requirements are also in the Senate bill, with the exception of disclosure of probation status. These provisions call for accreditors to make public the award of accreditation, reaffirmation of accreditation and adverse actions (e.g., final denial, withdrawal, suspension or termination of accreditation). In contrast to current law, both bills require that accreditors make public the official comments of an affected institution. Both bills require that accreditors go beyond making these disclosures "upon request" as in current law: Disclosures are to be made public, whether or not there are any requests.

Accreditation Due Process

The House language on due process is identical to the Senate bill, with one exception. The House bill does not include an appeal for placement on probation. Both bills require that accreditors establish and apply review procedures that are consistent with due process throughout the accrediting process, including evaluation and withdrawal proceedings. Both bills call on accreditors to provide (1) adequate specification of requirements and deficiencies at the institution or program examined, (2) an opportunity for a written response to be included prior to final action and (3) upon the written request, an opportunity to appeal any adverse action at a hearing prior to such action becoming final.

In the event of an appeal, an appeals panel is not to include anyone who was on the underlying decision-making body that made an adverse decision and panel members are subject to a conflict of interest policy. The institution has the right to representation by counsel during an appeal.

Current law requires accreditors to apply procedures that comply with due process including (1) adequate specification of requirements and deficiencies at the institution under examination, (2) notice of an opportunity for a hearing, (3) right to appeal any adverse decision against such institution and (4) right to representation by counsel for any such institution.

Distance Education

The House bill is identical to the Senate bill in most respects. Accreditors are to address the quality of an institution’s distance education offerings without a requirement to establish separate standards, procedures or policies for the evaluation of distance education, as is in current law. Both bills go beyond current law and require that accreditors call on institutions to establish that the student who registers for a distance education course or program is the same student who participates in and completes the program and receives the academic credit.

The House bill differs from the Senate bill and current law in that it would permit accreditors, upon notification to the Secretary, to expand their scope to include accreditation of distance education programs. Current law requires approval of the Secretary to include distance education in accreditors’ scope. The impact of the amendment on the approval process is yet to be clarified.

Missions of Religious Institutions

The House bill requires accreditors to take religious mission into account when applying and enforcing standards. The Senate bill also stresses religious mission. Current law does address religious mission in the context of termination of accreditation.

Articulation Agreements

The House bill calls for (1) the development of an initiative to establish, implement and enhance articulation agreements among public institutions both within states and among states and (2) a study of articulation agreements, both to be carried out by the Secretary. Neither current law nor the Senate bill contain these provisions.

National Advisory Committee on Institutional Quality and Integrity

The House bill revises the appointment process for the National Advisory Committee on Institutional Quality and Integrity (NACIQI) that advises the Secretary on the recognition of accrediting organizations. The Senate bill does this as well, but the revision is not the same. Both would significantly alter current law.

The House bill retains the advisory committee but calls for 18 rather than the current 15 members. It calls for six members to be appointed by the Secretary, six to be appointed by the House of Representatives (three by the majority leader and three by the minority leader) and six to be appointed by the Senate (three by the majority leader and three by the minority leader). The House change would be effective January 1, 2009.

The Senate bill creates a new "Accreditation and Institutional Quality and Integrity Advisory Committee," terminating the current committee and altering the process for appointment of committee members. It calls for the current number of committee members (15), but requires that the Secretary share appointment authority with the Speaker of the House and the President pro tempore of the Senate. The Senate provision would be effective 30 days after enactment of the bill.

Accreditation Ombudsman

The House bill creates an office of "Accreditation Ombudsman" charged to review and attempt to resolve complaints concerning the accreditation process from institutions, accreditation organizations and others engaged in the accreditation process and within the Department of Education. The ombudsman is to compile and analyze data on institutions and accrediting organization complaints. Neither the Senate bill nor current law contain this provision.

Rules of Construction

As mentioned above in relation to student achievement, a rule of construction is language that has been inserted in a bill to clarify or interpret some of its provisions. Both the House and Senate bills contain the same rules of construction in relation to student achievement and transfer of credit. The House bill also includes a rule of construction for articulation agreements. In each of these cases, the rules describe the role of the Secretary. Two additional rules of construction in the House bill address accreditors and institutions and standards for student achievement. One rule affirms that accrediting organizations will use standards they have set with their members to review the institutions they accredit; the other rule affirms that institutions set standards for student achievement that the accreditors must consider. Current law does not contain these rules.

Accrediting Standards for Students with Intellectual Disabilities

The House bill calls for the Secretary to enter into a cooperative agreement to assist in the creation of accreditation standards for higher education institutions that offer postsecondary programs for students with intellectual disabilities. The goal of the agreement is to develop criteria, standards and components for postsecondary programs

The Senate bill calls for the Secretary to enter into a cooperative agreement to assist in the creation of accreditation standards for higher education institutions that offer postsecondary programs for students with intellectual disabilities. The goal of the agreement is to develop criteria, standards and procedures to be used to accredit these programs.

Current law does not address accreditation standards for these programs.

Negotiated Rulemaking

The House bill requires that the individuals chosen for negotiated rulemaking committees have recognized legitimacy as designated representatives of major stakeholders in higher education. Neither the Senate bill nor current law has this provision. Negotiated rulemaking is a consultation process required of the Secretary before issuing new regulations in a range of areas, including accreditation.

Monitoring Growth

The House and Senate bills are identical. The bills require accreditors as a part of their review to monitor “the growth of programs at institutions that are experiencing significant enrollment growth.” This is a significant expansion over current law.

Federally Required Institutional Disclosures

The House bill does not require that accrediting organizations review all federally required information that an institution must provide to current or prospective students. The Senate bill does have this obligation. Current law does not have this provision. At present, some 300-400 new reporting requirements are contained in both the House and Senate bills.

CHEA Priorities

CHEA, working with other higher education associations and accrediting organizations, will focus on the following areas as the House and Senate bills move to conference:

• Student Achievement. Both the House and Senate language assure institutional leadership in setting student achievement standards. The House language adds rules of construction clarifying the role of accreditors and institutions in the accreditation process. Both bills also contain a limitation on the Secretary's regulation of student achievement. CHEA will work to have the House provision adopted in the conference committee because of the emphasis on institutions determining their own standards for student achievement.
• Federally Required Disclosures. CHEA will attempt to have the conference committee adopt the House language that does not contain the obligation of accrediting organizations to monitor all federally required disclosures. The effect of removing this Senate provision is that current law would remain in force.
• National Advisory Committee on Institutional Quality and Integrity. Both the House and Senate bills address structural change in the national advisory committee to assure balanced federal review of accrediting organizations. CHEA supports the Senate language that renames the committee, accompanied by the House process for appointment of 18 committee members. In addition, CHEA seeks to have these structural changes in place at the earliest feasible date and supports the Senate provision for action 30 days after enactment of a bill.
• Accreditation Ombudsman. The House bill establishes an office of accreditation ombudsman. This is not in the Senate bill. The bill’s description of the role and responsibilities of this office suggests at least the potential for ongoing federal intervention in the course of an accreditation review, thereby undermining this process. CHEA will work to have the House recede to the Senate on this provision.