Earlier this year, the Department of Education engaged in negotiated rulemaking around several issues including state authorization and reciprocity, accreditation, distance education and innovation, regular and substantive interaction, competency-based education (CBE), TEACH grants, and faith-based institutions. Despite all odds and expectations, negotiators reached consensus on a comprehensive set of proposed regulations. In July of 2019, the Department released the first of three sets of proposed rules for public comment—those rules concerning state authorization, reciprocity, public disclosures, and accreditation. On October 31st, the Department responded to almost 200 public comments and released final regulations.

Cheryl Dowd and Dan Silverman provided excellent analysis of the final state authorization, reciprocity, and public disclosure regulations. And if you are interested in taking a spin down memory lane and revisiting the larger saga of the 2019 negotiated rulemaking you can do so here, here, and here. Today, though, we are going to examine the final accreditation regulations with an eye towards what has changed and how they might impact your institution—specifically the regional scope of accreditation, the approval of new accreditors, changes to reviewer qualifications, faculty credentialing, and substantive change requirements.

A brief explanation of why the Department of Education is interested in accreditation

Accreditation is considered foundational to quality assurance in the American higher education system; in fact, accreditation by a federally recognized agency allows institutions to access federal financial aid. Historically, accreditors focused on institutional academic quality, but as both the cost of higher education and the amount of federal dollars flowing into higher education through financial aid have increased, accreditors have faced increased pressures to focus their attention on student success and institutional accountability and, when necessary, remove accreditation from poor performing institutions.

Illiad text written and illustrated on an ancient scroll
Iliad VIII 245-253 in codex from late 5th or early 6th c. AD

The most recent updates represent a shift in the purpose of accreditation and the role of accreditors.

Historically, accreditation was viewed as a voluntary effort that institutions could use to distinguish themselves from other schools. Many of the voluntary organizations that emerged were regional in nature and, as a result, accreditation from one of the seven regional accreditors (Middle States Commission on Higher Education, New England Association of Colleges and Schools, Higher Learning Commission, Northwest Commission on Colleges and Universities, Southern Association of Colleges and Schools, Western Association of Schools and Colleges, and the Accrediting Commission on Community and Junior Colleges) was viewed by some to be the “gold standard” in accreditation. In addition to these seven regional accreditors, the Department of Education also recognizes five national accreditors and a number of organizations that accredit programs.

Regional scope of accreditation, 34 CFR 602.11 (b) and 602.14

The issue

Even though the Department of Education uses the exact same standards for all institutional accreditation agencies, regional accreditation is sometimes perceived as a superior and more rigorous form of accreditation. As a result, some institutions enacted policies that only allowed students to transfer credit from regionally accredited institutions. Additionally, some states restricted professional licensure to only graduates from regionally accredited institutions. As a result, some critics, including several within the Department, have argued that national accreditors suffer from bias and that students at nationally accredited institutions are unfairly targeted. As a result, Department of Education officials removed the distinction between regional and national accreditation, a priority during the most recent negotiated rulemaking.

Consensus and final language

The Department’s final regulations did not include any changes to the consensus language, but did remove “geographic area” from the current scope of recognition definition and broaden the definition of the geographic area of accrediting activities found in 34 CFR 602.11 (b). Under the new definition, the geographic area of activity is no longer a region that includes at least three states and now becomes any region/states in which the accreditor chooses to function. The Department no longer recognizes a distinction between regional and national accreditors, but has instead focused on institutional accreditors versus programmatic accreditors.

Institutional impact

Institutional impact of this change will likely be minimal, although it is possible that states that include the term “regional accreditation” in their statutes could be impacted. In WCET’s comments to the Department of Education, we raised a concern that because some state legislatures would not meet until 2021, it might be difficult for those states that cite regional accreditation in statute to come into compliance with federal regulations. The Department declined to delay this section of the regulations and countered, “it is incumbent upon State regulators to ensure the laws pertaining to an academic institution’s required accreditation to qualify graduates for licensure and the procedures used to implement those laws do not disadvantage students who enroll in and complete programs at institutionally accredited institutions.”

Approval of new accreditors, 34 CFR 602.12

The issue

Under existing federal regulations, an accrediting agency that wishes to be recognized by the Department of Education must have conducted at least two years of accrediting activities—a hard sell to institutions if their accreditation will not be recognized by the Department of Education for student Title IV financial aid eligibility. Additionally, current regulations also require that accrediting agencies that wish to expand their scope must already have accredited institutions/programs in area of expanded scope. The Department pushed for a change to these regulations in order to allow accreditors to “focus on education quality and allow competition.”

Consensus and final language

The Department’s final regulations do not include any changes to the consensus language. The final regulations remove the requirement that new accreditors seeking Department of Education approval must have conducted at least two years of accrediting activities as long as the organization is an “affiliate” or a division of a recognized accreditor. Additionally, the final regulations also remove the requirement that agencies that wish to expand their scope must already have accredited institutions in the expansion area.

Institutional impact

Although this change in the approval process of accreditors is perhaps one of the most controversial parts of the final regulations, its impact on institutions will likely be minimal. Critics of the new regulations argue that by easing the standards governing the approval of new accreditors, the Department will create a “race to the bottom” with newly recognized accreditors subject to much laxer standards. Additionally, those same critics suggest that easing restrictions on existing accreditors expanding their coverage area will result in institutions beginning to “shop” for less rigorous accreditors.

Changes to reviewer qualifications, 34 CFR 602.15

The issue

Current federal regulations require accreditation reviewers to have both appropriate education and experience for their review duties. As a result, accreditation committee members tend to be drawn from the ranks of academia and few subject matter experts employed outside of the academy are on review committees. Critics, including staff at the Department, have argued that this effectively excludes potential employers and other industry experts who have direct knowledge and experience with rapidly changing workforce needs and expectations. Although this may not be critical for institutional level accreditation, it could prove critical for program level accreditation.

Consensus and final language

Odysseus and the Sirens on a stamped black and red vase.
Odysseus and the Sirens

The Department’s final regulations do not include any changes to the consensus language. The final regulations remove the requirement that reviewers have both education and experience and instead require that although reviewers might have both, expertise in only one area—education or experience—is now required.

In addition to the changes to reviewer qualifications, the final regulations also explicitly make the inclusion of a student on an accreditor’s decision-making body optional—an option that was not explicitly addressed in previous regulations.

Institutional impact

Although these changes are not likely to impact institution-level accreditation activities, they could have a significant impact on program-level accreditation activities. By equally valuing both academic knowledge and workforce experience, the Department is, in essence, signaling that accreditors should be more concerned with assuring that institutions are aligned with current and anticipated workforce needs and that graduates of those programs are well prepared to enter the workforce. This is a departure from the current focus of accreditation on academic quality and integrity.

Faculty credentials (for dual enrollment), 34 CFR 602.16

The issue

Dual and concurrent enrollment programs have exploded in the last several years—an 80 percent increase between 2002/03 and 2010/11 resulting in 1.2 million students enrolled in dual credit courses in the 2010/11 academic year, according to the National Center for Educational Statistics. Many school districts struggle with finding enough qualified faculty to teach dual credit courses, however, since accreditors require a different set of instructor credentials and standards for college level courses than are required for high school level courses. Similarly, colleges and universities sometimes struggle to find instructors for career and technical education programs associated with relatively new fields. Although it is possible to find practitioners who have the subject matter expertise to teach in these programs, they often do not have the traditional academic credentials preferred by accreditors. Accreditors do allow institutions to make exceptions to the credentialing requirements when appropriate, but many institutions are hesitant to do so, afraid that it will open them up to additional scrutiny during the accreditation process.

Consensus and final language

Although the Department’s final regulations do not differ from the consensus language, they do slightly differ from the draft language published in June. When the Department published the draft regulations in June, it inadvertently omitted 602.16 (g) (4) which allows for the establishment of differing credential requirements for dual credit and career and technical education instructors. The final regulations include the consensus language that allows accreditors to adopt separate instructor credentialing standards for dual credit and career and technical education instructors.

Institutional impact

Unlike many of the regulatory changes associated with accreditation, this change could be very impactful for institutions by potentially making it easier to find dual credit and career and technical education instructors. It’s important to note, however, that although the new regulations make allowances for differing instructor credentialing standards, accreditors are not required to establish different instructor credentialing standards. Institutions will only be impacted if their accreditor decides to establish different instructor credentialing standards.

Substantive change requirements, 34 CFR 602.22

The issue

Under the previous regulations, institutions were required to seek accreditor approval for a wide range of “substantive” changes that included the establishment of new modalities, new institutional locations, and any new degree program at a different level than those already at the institution. The substantive change process could add months to the implementation of new programs and modalities and often involved significant institutional resources. Some critics argued that these substantive change regulations made it more difficult for institutions to be responsive to regional or national demands for new types of programs and credentials, especially those closely associated with emerging workforce needs.

Consensus and final language

The Department made two minor technical corrections that are reflected in the final regulations but neither substantively changes the consensus language. The final regulations do make a number of changes to the substantive change approval process. By specifying in 602.22 (2) that the regulations are designed to only focus on “high-impact, high-risk changes,” the Department effectively decreases the number of institutional and programmatic changes that will require accreditor approval. For example, whereas past regulations required accreditor approval for offering any new credential level, the final regulations only require accreditor approval if an institution not currently offering graduate programs wishes to begin doing so. Additionally, institutions in good standing which have already received approval to open two additional locations are no longer required to seek accreditor approval for opening additional locations; they simply must notify the accreditor of the new location. Equally important, the new regulations allow for several substantive changes to be approved by accreditor staff rather than be reviewed by full teams. These staff level approvals include:

  • changes in modality;
  • programs that represent a “significant departure” for the institution;
  • changes in how student progress is measured;
  • the acquisition of a teach out site; and
  • agreements with non-Title IV eligible organizations to offer 25-50 percent of a program.

The final category requires accreditor staff to provide a response within 90 days unless additional review is required (and then staff only have up to 180 days to respond).

Institutional impact

Ancient mosaic of the Roman villa of La Olmeda in Pedrosa de la Vega (Palencia, Castile and León, Spain), depicting Odysseus (Ulises), late 4th-5th centuries AD. This is a close-up detail of a larger scene from the Iliad depicting Odysseus discovering Achilles as he is cross-dressed and fawned over by a group of adoring princesses at Skyros.
A mosaic depicting Odysseus, late 4th-5th centuries AD

More than any other section of the revised accreditation regulations, the changes to this section could greatly impact institutions. The revised regulations are designed to reduce the number of substantive change approvals that institutions must pursue and streamline many of the remaining approvals.

As a result, institutions will be able to more readily and more quickly offer new programs and delivery modalities.

And unlike the changes in 34 CFR 602.16 which allow but do not require accreditors to make changes to instructor credentialing standards, these regulations make the changes to the substantive change process mandatory.

Our Regulatory Odyssey

Folks who’ve been watching the negotiated rulemaking process for the last eighteenth months know that this saga is far from over. If the actual rulemaking process earlier this year was analogous to Homer’s Iliad (and the Trojan War), then the slow release of proposed rules, public comment, and final regulations must be the regulatory equivalent of Homer’s Odyssey. In the Odyssey, Homer chronicles the (mis)adventures of Odysseus and his crew as they spend ten years attempting to return home after the Trojan War. During those years, Odysseus loses all of his crew to a rogue’s gallery of cyclopeses, witches, sirens, cannibals, and petulant gods. He finally returns to his home in Ithaca, only to find a group of boisterous suitors attempting to marry his wife, Penelope.

I’ll leave it to you, dear reader, to decide who in this ongoing regulatory saga is Polyphemus the cyclopes, the cannibalistic Laestrygonians, the lazy Lotus Eaters, Circe the witch, the bewitching Sirens, a vengeful Poseidon, the bothersome suitors, or even the ever faithful Penelope. One thing is certain, though; our regulatory odyssey is far from over and there are still obstacles to be traversed. For future regulatory packages, how many of the consensus regulations survive the journey or how many will succumb to the regulatory equivalent of Odysseus’ rogue’s gallery remains to be seen.

foto afp julia robinson - van l. davis - blackboard (12)


Van Davis
Policy and Planning Consultant WCET
vdavis@wiche.edu    @historydoc




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