ED Proposes New Rules Governing Accreditation and State Authorization

On June 12, 2019, the Department of Education published a Notice of Proposed Rulemaking (NPRM) in the Federal Register outlining proposed changes to the federal rules regulating accreditation, state authorization, and the Robert C. Byrd Honors Scholarship Program.

This is the first NPRM to emerge from the negotiated rulemaking session on accreditation and innovation, which ended in consensus in April 2019 and covered a variety of issues governing the higher education sector. ED is expected to publish additional NPRMs on the other topics covered during the 2019 rulemaking session, which also included distance learning, educational innovation, the TEACH Grant program, and treatment of faith-based entities. Because the negotiation rulemaking committee members reached consensus, ED is obligated to use their agreed-upon language in the resulting NPRMs.  

Many of the changes in the NPRM seek to reduce unnecessary burdens on schools and accreditors, foster innovation, and more clearly define the responsibilities of the regulatory triad, which is comprised of recognized accrediting agencies, states, and ED.

Although the majority of these proposed changes will directly impact accrediting agencies, many of these provisions will also affect schools. Some of the most impactful proposed changes for institutions are listed below. 

• State Authorization & Creating Procedures for Determining Student Location. The proposed rules would maintain the same definition of “state authorization reciprocity agreement” established in the 2016 Program Integrity and Improvement regulations. However, the NPRM seeks to change the standard that currently determines whether an institution is subject to state authorization requirements in a state, which will now be based on a student’s location rather than on his or her residence. In addition to the change in terminology, the proposed regulations would also require schools to determine a student’s location at the time of enrollment in a distance education program and would establish a document process by which a student can submit a change of address. 

• Multiple Accreditations. The proposed rules would allow schools to obtain institutional accreditation from multiple accrediting agencies.

• Loosening Oversight of Substantive Changes. The proposal contains several changes that pertain to accrediting agencies, including modifications to substantive change requirements in 34 CFR 602.22. The amended language is designed to require accrediting agencies to provide oversight proportionate to the estimated degree of risk associated with a given substantive change. Under the proposal, approval from the entire accrediting body would be limited to high-risk, high-impact substantive changes, like adding a graduate program at an institution that had not previously offered one or creating a direct assessment program. Agency senior staff would be authorized to approve other, less impactful substantive changes, like modifying the way a school measures student progress or adding undergraduate programs that differ significantly from previous offerings. In cases deemed to carry even lower risk, the proposed regulations would allow an institution to make modifications without agency approval at all, as long as the school notifies its accreditor within 30 days of implementing the change. 

• Disclosure Requirements. The proposed provisions introduce several new general and direct disclosure requirements pertaining to professional programs that are linked to jobs that require state licensure. The proposed language would require schools to provide to all current and prospective students a list identifying states where a school’s professional program meets the state licensure requirements, where it does not meet the state licensure requirements, and where that determination has not yet been made. 

The comment period for this NPRM closes on July 12, 2019. NACUBO is still determining how some of the new provisions could impact college and university business officers. Under the master calendar provision of the Higher Education Act, ED has until November 1 to finalize the new rules for them to go into effect by July 1 of the next calendar year.