U.S. Department of Education Publishes Final Rules on Accreditation From March-May 2009 Negotiated Rulemaking

On October 27, 2009, final regulations addressing changes in accreditation resulting from the Higher Education Opportunity Act (HEOA) were published by the U.S. Department of Education (USDE) in the Federal Register. USDE negotiated these new rules through a rulemaking panel that met March-May 2009. Proposed regulations were published in the Federal Register on August 6 (as reported in Federal Update #6), accompanied by a call for comment. The new regulations will become effective on July 1, 2010.

The final regulations mirror those published in August with two exceptions: The intent of the regulations addressing teach-out plans and agreements is made more explicit and there is an addition to the regulations addressing due process and appeals procedures.

With regard to teach-out, the regulatory language itself does not change. However, USDE has indicated that, as it interprets the law, accrediting organizations must now require that all institutions submit teach-out plans and agreements, not only institutions that participate in Title IV programs of the Higher Education Act of 1965 (HEA).

With regard to due process and appeals, the regulations have been changed such that the appeals panel required in HEOA is a body with decision-making authority, going beyond an advisory or procedural role. The appeals panel also has the additional option of remanding actions back to the original decision-making body (the accrediting commission in most cases). Under this revised rule, some accrediting organizations may need to seek recognition of their appeals panels.

The attached chart outlines the regulatory changes included in the final regulations. This updates the chart published August 13, 2009 in Federal Update #6.

Second 2009 Negotiated Rulemaking Held by USDE

USDE is conducting a second round of negotiated rulemaking in 2009, addressing additional proposed regulations called for under Title IV of HEA. Two negotiated rulemaking committees have been established, one to address Program Integrity and one to address Foreign Schools.

The committee to address Program Integrity consists of federal negotiators and nonfederal negotiators representing interested parties. The committee met November 2-6, 2009 to consider regulations covering 14 issues. Subsequent meetings of the committee will be held December 7-11, 2009 and January 25-29, 2010.

The sessions of the negotiated rulemaking held November 2-6 focused on a “workshop” review of 14 issues that USDE presented to the committee, generating significant discussion in a number of areas. Based on the review, USDE will draft regulatory language for future sessions of the committee.

Five of the 14 issues to be considered during the negotiated rulemaking are of particular interest, potentially affecting the work of accreditors, with a subsequent impact on accredited colleges, universities and programs. These include:

• Misrepresentation of Information to Students and Prospective Students (Issue 3). The questions posed by USDE focus on whether to expand current regulations describing the parties to whom false, erroneous or misleading statements may not be made to include state agencies or accreditors. USDE is considering regulations that would harmonize with Federal Trade Commission guidelines concerning misrepresentation of information, which would affect all institutions.



• State Authorization As a Component of Institutional Eligibility (Issue 5). The issue here is whether institutions should be permitted to participate in Title IV programs if they are not licensed or otherwise authorized to offer postsecondary programs in a state. Other questions include what would constitute authorization, whether there should be any minimum standards for state authorization to determine an institution’s eligibility to participate in Title IV programs and whether it is adequate for a state agency to rely solely on accreditation to determine authorization.



• Definition of a Credit Hour (Issue 7). The USDE paper focuses on whether there needs to be a regulatory definition of a credit hour for Title IV purposes and, if so, whether different definitions should be required for various levels and types of postsecondary education.



• Agreements Between Institutions of Higher Education (Issue 8). The questions posed by the USDE issue paper focus on the potential expansion of regulations governing the circumstances under which an institution may confer a degree or certification bearing its name when little or none of the instruction has been provided by the institution. Are additional requirements needed for agreements between institutions if all or a majority of an educational program is provided by an institution other than a “home” institution?



• Satisfactory Academic Progress (Issue #10). The USDE issue paper focuses on progress in an academic program in a reasonable time period. Is there a need for regulations addressing the frequency of student reviews, cumulative completion and GPA requirements? This has implications for eligibility for year-round Pell Grants.

CHEA will follow this negotiated rulemaking closely and will provide additional information to institutional members, CHEA-recognized accrediting organizations and the public.

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This Update will inform CHEA members and interested parties on federal policy developments related to self-regulation and peer review. Please direct any inquiries or comments to Jan Friis, CHEA's Vice President for Government Affairs, at friis@chea.org or at (202) 955-6126.

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