Negotiated Rulemaking Efforts Begin Tackling Accreditation and Innovation

• By Dian Schaffhauser
• 01/22/19

A Washington, D.C. blizzard was bad enough to knock a day and a half off of the first three-day effort to dig into work on proposed regulations for federal student aid programs. The regulations, authorized under title IV of the Higher Education Act, are being undertaken by a "negotiated rulemaking" committee that brings together various stakeholders to hammer out language that the U.S. Department of Education is expected to use for two regulatory areas: accreditation and innovation.

A lot of the time for this first convening was dedicated to housekeeping matters: nailing down details on just who should participate on the committee (should state attorney generals be allowed on, for example, to represent the interest of consumers?); who would be allowed to talk (when can the "alternate" negotiator speak on behalf of a "primary" committee member?); and what consensus even means (thumb up means I give an unqualified yes; thumb sideways means I'm not enthusiastic, but I won't block the decision; and thumbs down means I disagree and I'll explain why).

The 15 voting members of the committee include a smattering of leaders spread across three primary contingents: universities, accrediting agencies and associations representing institutions of higher education. Among the participants: Liberty University, Florida International University, the University of Alaska Anchorage, the Middle States Commission on Higher Education and Higher Learning Commission, and the American Council on Education.

The committee work is also being undertaken by three subcommittees: one focused on distance learning and educational innovation, another on grants and a third on faith-based entities. These groups will bring recommendations back to the voting committee for further action.

The sections of the latest version of the Higher Education Act under consideration are these:

• Part 600, institutional eligibility. Here, the big attention is being paid to two topics: how to handle the definition of a "clock hour" when the education isn't delivered face-to-face and the institution must monitor student engagement appropriately; and how to handle distance education for the sake of state authorization.
• Part 602, accreditation. The Department of Ed is especially seeking recommendations from the committee on three areas: 1) when and how agencies should be allowed to grant waivers to institutions to support innovation or when they "cannot reasonably be expected to comply with a given standard"; 2) how to discourage or prevent accreditors from aligning with state licensing bodies or other vocational credentialing boards to exclude the licensure of people who prepare for work through apprenticeship, the military, or other work-based learning pathways; and 3) how to maintain a focus on student outcomes while also "avoiding one-size-fits-all solutions" that don't take into account different institutional missions or pathways.
• Part 654, the Robert C. Byrd Honors Scholarship Program, which is facing elimination altogether from HEA.
• Part 668, general provisions for student assistance, which cover the rules for schools participating in financial aid programs authorized by Title IV. The Department has suggested adding sections that would allow institutions to address "workforce responsiveness" based on industry feedback to their programs and help schools maintain their eligibility while still using programs delivered by organizations that aren't eligible.
• Part 686, TEACH grants.Here, among proposed revisions, the Department is seeking changes to clarify that grant recipients can satisfy the service obligation of their funding by teaching for an educational service agency serving low-income students.
• Religious inclusion in Title IV grant making.This section of the HEA has suggested removing language that excludes religious institutions, staff members and K-12 schools from participating in programs publicly funded or delivered by public colleges and universities.

Whatever the committee comes up with won't bind the Department of Ed to anything: The initial protocol for the rulemaking process emphasized that the agency retains the right to "depart" from the proposed rules.

Two additional meetings of the full committee are scheduled to take place in February and March.

The complete schedule for committee and sub-committee meetings, along with the materials made available prior to the negotiated rulemaking session, are openly available on Department of Education website.