The process of federal negotiated rulemaking is not sexy, fun, or even easy to understand. But the U.S. Department of Education’s latest effort to rewrite regulations could have deep consequences for higher education.
Next week the department begins a new round of rulemaking, bringing together dozens of higher-education constituents to try to hammer out agreement on numerous proposed changes in regulations, primarily relating to accreditation.
While accreditation is granted by private, nonprofit organizations, there are scores of federal requirements for the groups, which function as gatekeepers for more than $100 billion in student aid that the government gives out every year. In general, the proposed changes would lower the requirements for accrediting agencies and for colleges seeking accreditation, especially institutions that offer online programs.
Advocates for more accountability in higher education have mostly criticized the proposals as an invitation to lower-quality programs and predatory institutions.
The meetings will take place over several days for the next three months and will be live-streamed for those who have a high tolerance for tedium. If that’s not you, here are five particularly important issues that will be discussed.
Accreditor recognition. In order for accrediting agencies to serve as gatekeepers for federal student aid, they must be recognized every five years by the Education Department — a sort of accreditation for accreditors. Under the last reauthorization of the Higher Education Act, which was passed in 2008, that process became more rigorous. More recently, the department began putting more pressure on accreditors about the student outcomes at the colleges the groups oversee.
Under the proposed rules, the department would streamline the recognition process, limiting the kinds of negative information about an accreditor’s members, such as lawsuits, that the government can consider when assessing an accreditor. Accrediting agencies could also gain federal recognition if they were only “substantially” compliant with federal rules, rather than completely meeting those standards.
Credit hours. In 2010 the Education Department set a definition for the amount of time an academic program should last for the purpose of awarding federal aid. The definition was necessary, the department said, because some institutions had been inflating the amount of credit they awarded for very short programs. American InterContinental University, for example, offered a nine-credit course over five weeks.
The department is proposing to eliminate the federal definition of the credit hour because some accreditors and distance-education providers have complained that the rule prevents them from offering competency-based programs that rely on a student’s mastery of a topic rather than the length of the course.
Outsourcing education. Colleges now can allow up to half of an education program to be provided by an unaccredited entity, such as a private company that offers college courses. During the negotiated rulemaking, the department wants to consider raising or possibly eliminating that cap. In that case, an entire program could be offered under a college’s name even if it provided none of the instruction.
‘Regular and substantive’ interaction. Since the internet has become widely used for online courses, federal regulations have maintained a distinction between correspondence programs, which are typically self-paced, and distance courses, which are more traditionally structured. To prevent abuses, the latter require that students have “regular and substantive” interaction with an instructor. The “regular and substantive” rule also now applies to competency-based programs that want to avoid the stricter limitations on correspondence courses.
That rule was at the center of a bombshell report by the department’s inspector general in 2017. The report said Western Governors University, a nonprofit institution known for its competency-based teaching model, had violated the rule and so should repay more than $700 million in federal student aid. Consistent with the changes it is proposing in the process that begins next week, the department announced on Friday that the university had not broken the rule after all, and so would not have to repay that huge sum.
Under the department’s proposal, accreditors and colleges would have more flexibility in setting the amount of interaction and the definition of who would qualify as an instructor.
State authorization. Under the Obama administration, the department finalized a rule requiring colleges to be authorized to operate in every state where they enrolled students online. The rule was meant to strengthen state consumer-protection laws and renew the state’s role as part of the “triad” overseeing higher education — including the federal government and the accreditors.
That rule was delayed under the Trump administration, and the proposed regulations would largely eliminate the previous state-authorization mandates, possibly eliminating requirements that programs offered in a state meet rules for state licensure and allowing students to pursue complaints about a program in their home state.
Andrew Mytelka contributed to this article.
Eric Kelderman writes about money and accountability in higher education, including such areas as state policy, accreditation, and legal affairs. You can find him on Twitter @etkeld, or email him at eric.kelderman@chronicle.com.
