Final Meeting of USDE 2009-2010 Negotiated Rulemaking Committee on Program Integrity: “Consensus” and “No Consensus”

The U.S. Department of Education (USDE) negotiated rulemaking committee on program integrity held its third and final meeting on January 25-29, 2010. Prior to this, the committee met twice (in November and December, 2009) to consider draft regulatory language for fourteen issues. “Negotiated rulemaking” is a process by which the federal government consults with key constituents as part of drafting or revising regulations that implement legislation passed by Congress. This is the second negotiated rulemaking held since passage of the Higher Education Opportunity Act of 2008 (HEOA) that included accreditation-related issues.

The rulemaking committee arrived at consensus on nine of the 14 issues under consideration. Using the committee’s protocol, consensus must be reached on all issues or USDE is free to propose regulations without following any agreements reached by the committee. Nonetheless, it is likely that, for the nine issues where consensus was reached, USDE will propose regulatory language closely resembling that agreed upon by the committee. In the past, USDE also has taken into account discussion around issues where consensus was not reached, but USDE is free to make its own proposals.

Consensus was reached on Definition of High School Diploma (Issue 1), Ability to Benefit (Issue 2), Misrepresentation of Information to Students and Prospective Students (Issue 3), Definition of a Credit Hour (Issue 7), Agreements Between Institutions of Higher Education (Issue 8), Verification of Information Included on Student Aid Applications (Issue 9), Satisfactory Academic Progress (Issue 10), Retaking Coursework (Issue 11) and Disbursement of Title IV Funds (Issue 14).

The five issues on which consensus was not reached were Incentive Compensation (Issue 4), State Authorization As a Component of Institutional Eligibility (Issue 5), Gainful Employment in a Recognized Occupation (Issue 6), Return of Title IV: Term-Based Programs with Modules or Compressed Courses (Issue 12) and Return of Title IV: Taking Attendance (Issue 13).

The Impact on Accreditation

In CHEA Federal Update #8 (December 15, 2009), CHEA identified five of the 14 issues that would have an impact on accrediting organizations, as well as on the institutions and programs they accredit. The committee reached consensus on four of these: Misrepresentation of Information to Students and Prospective Students, Definition of a Credit Hour, Agreements Between Institutions of Higher Education and Satisfactory Academic Progress. It did not reach consensus on State Authorization as a Component of Institutional Eligibility.

With regard to the four issues on which consensus was reached:

• “Misrepresentation of information” expands the current rules on misrepresentation by enlarging the list of parties to whom “false, erroneous or misleading statements” are not to be made to include accrediting organizations and state agencies. Misrepresentations now include student endorsements or testimonials given “under duress,” false or misleading statements about institutional or programmatic accreditation and inaccurate representations about transfer of credit. A key factor here is that institutions are now responsible not only for actual false or misleading statements but also for statements that have “…capacity, likelihood or tendency to deceive or confuse.” USDE is tasked with monitoring for misrepresentation. A finding of misrepresentation by an institution may lead to loss of eligibility for federal funds.

• “Definition of a Credit Hour” calls for a major new monitoring role for accrediting organizations, requiring  that, as part of their examination of an institution, accreditors must review and evaluate the reliability and accuracy of the institution’s assignment of credit hours and must take action to address any deficiencies identified. If the accrediting organization finds “systemic noncompliance” with the accreditor’s policies concerning a credit hour or “significant noncompliance” regarding one or more programs at the institution, the accrediting organization must promptly notify USDE, which may lead to loss of the institution’s eligibility to receive federal funds.

• The regulatory language agreed to by the committee for “Agreements Between Institutions of Higher Education” and “Satisfactory Academic Progress” was revised during the negotiated rulemaking to address the concerns of negotiators. The revised language has little or no impact on accreditation.

With regard to state authorization and the absence of consensus, USDE had proposed additional responsibilities for states in making determinations about whether an institution is to be authorized to operate and grant certificates or degrees. The committee did not come to agreement.

USDE will distribute new language for the nine issues on which consensus was reached in the near future. This may be accompanied by new regulatory language to address the five issues on which consensus was not reached. USDE is then expected to publish a Notice of Proposed Rulemaking in the Federal Register within the next few months, with a comment period to follow. Final regulations will take effect on July 1, 2011.

Introduction of Legislation to Combat Diploma Mills and Accreditation Mills Announced at 2010 CHEA International Seminar

At a news conference held during the CHEA International Seminar in Washington, D.C. (January 28), Congressman Timothy Bishop (D-NY) announced the introduction of legislation in the U.S. House of Representatives to combat diploma mills and accreditation mills. Also speaking at the news conference were CHEA President Judith Eaton and George Gollin, Professor of Physics at the University of Illinois at Urbana-Champaign and a member of the CHEA Board of Directors.

H.R. 4535 – the Diploma and Accreditation Integrity Protection Act – was introduced in the House on January 27. The bill’s purpose is to reduce the sale and use of fraudulent degrees for federal employment purposes. Congressman Michael Castle (R-DE), a cosponsor of the bill, spoke on the issue of diploma mills on January 27 at the 2010 CHEA Annual Conference. The bill is also cosponsored by Congresswoman Betty McCollum (D-MN).

At the news conference, Eaton noted “CHEA applauds this legislation as a measure to protect the integrity of credentials offered by legitimate institutions, which will benefit students and employers. We need this legislation. This is legislation that everyone should support.” (See CHEA news release).  

Appointments to National Advisory Committee on Institutional Quality and Integrity Announced

On January 25, Senate Republicans announced appointments to the National Advisory Committee on Institutional Quality and Integrity (NACIQI), the federal advisory body to the Secretary of Education that provides recommendations on the recognition of accrediting organizations. The committee is made up of 18 members and normally meets twice per year. Members of the committee are appointed by the U.S. Senate, the U.S. House of Representatives and USDE.

Senate Republicans have appointed Bruce Cole, former Chair of the National Endowment for the Humanities; Anne Neal, President of the American Council of Trustees and Alumni; and Michael Poliakoff, former Vice President for Academic Affairs and Research at the University of Colorado.

Senate Democrats appointed Dan Klaich, Chancellor of the Nevada System of Higher Education; Cameron Staples, member of the Connecticut State House of Representatives; and Larry Vanderhoef, Chancellor Emeritus of the University of California, Davis.

The House of Representatives has not yet made any appointments.

USDE’s appointments to NACIQI are: Earl Lewis, Provost and Executive Vice President for Academic Affairs, Emory University; Susan Phillips, Provost and Vice President for Academic Affairs, Albany State University; Jamienne Studley, President and CEO, Public Advocates, Inc.; Aron Shimles, Student, Occidental College; Frank Wu, Professor, Howard University Law School; and Frederico Zargoza, Vice Chancellor of Economic and Workforce Development, Alamo Colleges.

Speaking at the 2010 CHEA Annual Conference on January 26, Under Secretary of Education Martha Kanter said that, while a date has not been set, USDE expects to convene a meeting of NACIQI in mid-July. The Committee has not met since June 2008.

USDE Sends Letters to Accrediting Organizations on Compliance with HEOA

On January 11, USDE’s Office of Postsecondary Education sent a letter to all USDE-recognized accrediting organizations. The letter comes in response to the information that USDE requested in June 2009 from accrediting organizations about their efforts to comply with the new provisions of HEOA. The letter also offers compliance guidance with regard to the law and notes that regulatory changes resulting from HEOA will be effective on July 1, 2010.  

According to the letter, USDE has determined that, in general, accrediting organizations have initiated the changes needed to come into compliance. USDE will be issuing additional detailed guidance in 2010 on how accrediting organizations can demonstrate compliance with regulatory provisions under which they will be reviewed beginning July 2010.