HEA Reauthorization bill introduced in House and other federal issues

In This Issue:

• Higher Education Act Reauthorization Bill Introduced in U.S. House of Representatives
  • Provisions That Directly Affect Accreditation
  • Other Provisions That May Have an Impact on Accreditation
  • What Happens Now
• USDE Releases Regulatory Reform Task Force Status Report
• USDE Negotiated Rulemaking Committees for Borrower Defense and Gainful Employment Rules Begin
• Student Right to Know Before You Go Act Introduced in Senate

Higher Education Act Reauthorization Bill Introduced in U.S. House of Representatives

On December 1, 2018, Virginia Foxx (R-NC), Chair of the House Committee on Education and the Workforce, and Brett Guthrie (R-KY), Chair of the Higher Education and Workforce Development Subcommittee, introduced a bill to reauthorize the Higher Education Act (HEA). H.R. 4508, the Promoting Real Opportunity, Success, and Prosperity through Education Reform (PROSPER) Act, is a major overhaul of the HEA, with significant changes to many existing regulatory requirements. The HEA was last reauthorized in 2008.

The legislation includes a number of provisions that directly and indirectly affect accreditation. Several of these provisions were addressed in the Council for Higher Education Accreditation (CHEA) Position Paper on Regulatory Relief for Accreditation.

The bill contains other major changes to the HEA, including altering federal financial aid by moving to a “one loan, one grant, one work-study” system.

Provisions That Directly Affect Accreditation

The most significant change affecting accreditation concerns federal recognition of accrediting organizations. Federal recognition standards would now focus, first and foremost, on “student learning and educational outcomes.” This is a major shift from the current recognition standards, especially regarding the elimination of standards for resources and processes such as facilities and equipment, student support services and measures of program length.

Other important provisions in the bill that directly affect accreditation:

• Accrediting commissions would now be required to have at least one member representing business.
• Differentiated review of institutions and programs (reviews that “vary based on institutional risk consistent with policies promulgated by the agency or association to determine such risk”) would be permitted. The interval between such reviews also may vary.
• Accrediting organizations would be required to demonstrate that they have competency-based review capabilities.
• Accrediting organizations would be directed to identify and monitor substandard institutions (defined as those “experiencing difficulty accomplishing their missions with respect to student learning and educational outcomes”).
• A definition of “religious mission” has been added for higher education institutions, accompanied by requirements with regard to how accreditors are to respect religious mission when applying accreditation standards.
• Waivers would be allowed for certain accreditation requirements to encourage higher education innovation. This incorporates provisions contained in a bill to encourage innovation and reduce the regulatory burden on innovative programs and providers introduced by Rep. Bradley Byrne (R-AL) in September 2017 (see Federal Update #61).
• Institutions would be allowed to change accreditors without approval by the Secretary of Education as long as there are no existing sanctions against the institution.
• “Substantive Change” provisions are added to the statute, replacing the provisions now in the regulations. There are fewer requirements that trigger a review in comparison to current requirements.  
• A new Secretary of Education would be allowed to remove and replace members of the National Advisory Committee on Institutional Quality and Integrity (NACIQI), the advisory body that provides recommendations to the Secretary on recognition of accrediting organizations. The committee would no longer carry out general advisory functions for the Secretary, but would focus solely on recognition.

Other Provisions That May Have an Impact on Accreditation

• A number of regulations would be repealed, including those addressing state authorization, definition of a “credit hour,” gainful employment, borrower defense to repayment and the 90/10 rule for the for-profit sector.
• Congressional review and comment would be requested on proposed regulations that would be subject to negotiated rulemaking, the process by which the U.S. Department of Education (USDE) and affected parties negotiate the terms of proposed administrative rules.
• Title IV funds would be made available for shorter-term programs and for partnerships with traditional institutions in addition to institutions and programs accredited by USDE-recognized accrediting organizations. The bill also provides for weekly or monthly distribution of Pell funds.
• USDE would be required to report annually on the Department’s regulatory relief activities, including identifying outdated, inefficient or unnecessary regulations or regulations that eliminate jobs or inhibit job creation.

More information on the general provisions contained in the PROSPER Act can be found in a bill summary on the Committee’s Website, as well as in articles in The Chronicle of Higher Education and Inside Higher Ed. Also of note are the Higher Education Reauthorization Principles issued by the White House on December 1, 2017.

What Happens Now

Introduction of the PROSPER Act is the beginning of a long process for reauthorizing HEA. While hearings and a markup of the legislation by the House Committee on Education and the Workforce could take place in the next few weeks, the legislation is not likely to be considered by the full House of Representatives until sometime in 2018. Lamar Alexander (R-TN), Chair of the Senate Committee on Health, Education, Labor and Pensions (HELP), has said that he hopes to introduce bipartisan HEA reauthorization legislation in his chamber early in 2018. The bills would need to be passed by the full Senate and House of Representatives, respectively, and then differences between the two bills would require reconciling by a conference committee composed of members of the Senate and House. Changes to the PROSPER Act, as introduced, are likely. CHEA will follow the process of HEA reauthorization closely, keeping members informed and providing comment to Congress, as appropriate.

USDE Releases Regulatory Reform Task Force Status Report

As part of its compliance with Executive Order 13777, Enforcing the Regulatory Reform Agenda, USDE has announced it will withdraw 600 items of regulatory guidance – related to both K-12 and higher education – that it deems are not necessary or have become outdated. USDE’s Office of Postsecondary Education, which oversees federal regulations governing higher education in the
United States, is withdrawing 398 guidance documents, including one on distance education and
one on state authorization. The full Regulatory Reform Task Force Status Report can be found on USDE’s Website. (Also see Federal Updates #59, #60 and #61.)

USDE Negotiated Rulemaking Committees for Borrower Defense and Gainful Employment Rules Begin

USDE and two negotiated rulemaking committees are rewriting regulations concerning borrower defenses and gainful employment. The Borrow Defense and Financial Responsibilities panel first met November 13-15, 2017 in Washington, DC. The next session will begin on January 8, 2018. (Click here for a list of the issues being considered and members of the negotiating committee.) The Gainful Employment panel first met December 4 to 7, 2017, also in Washington, DC, with the next meeting scheduled to begin February 8, 2018. (Click here to see a list of issues being considered and members of the negotiating committee.)

USDE expects to publish new rules for both borrower defenses and gainful employment in Fall 2018 for implementation in July 2019.

Student Right to Know Before You Go Act Introduced in Senate

On November 29, 2017, Senators Ron Wyden (D-OR), Marco Rubio (R-FL) and Mark Warner (D-VA) introduced the Student Right to Know Before You Go Act (S. 2169). A companion bill in the House of Representatives (H.R. 4479) was introduced by Reps. Duncan Hunter (R-CA), Scott Peters (D-CA), Brian Fitzpatrick (R-PA) and Andre Carson (D-IN). The bill’s stated purpose is “to establish a new higher education data system to allow for more accurate, complete and secure data on student retention, graduation, and earnings outcomes, at all levels of postsecondary enrollment.”

The bipartisan bill would overhaul the way that USDE collects higher education data and redesign the Integrated Postsecondary Education Data System (IPEDS) to include a range of data such as post-graduation average annual earnings, rates of credit accumulation and graduation and average cost (before and after financial aid) of programs and average debt accumulated, all related to student success. USDE would be directed to use a secure encryption process that will allow multiple parties such as states and the federal government to contribute and share data while protecting student privacy.