U.S. Department of Education 2019 Final Rule on Accreditation

2019-12-02 | , American Association of Colleges of Osteopathic Medicine

December 2, 2019

On November 1, the U.S. Department of Education (ED) published a final rule on accreditation and state authorization based on the consensus-backed language of the 2019 Negotiated Rulemaking sessions. The new regulations—entitled Student Assistance General Provisions, The Secretary's Recognition of Accrediting Agencies, The Secretary's Recognition Procedures for State Agencies—reform procedures governing the recognition of accrediting agencies and their operations in overseeing higher education institutions, among other revisions. In promulgating the final rule, ED seeks to increase flexibility, promote innovation, and increase competition among accrediting agencies. The new regulations have an effective date of July 1, 2020. Below is a review of key provisions of the rule. 

Changes to the Definitions

  • ED changed the definitions to “additional location” and “branch campus” to conform to existing ED policy (e.g., an “additional location” as a location that is geographically apart, at which the institution offers at least 50% of an eligible program, whereas a “branch campus” is a type of additional location that meets additional criteria, including permanence and autonomy with respect to faculty, administration, and budgetary and hiring authority).
  • ED revised the definition of “teach-out” to clarify that teach-outs are not intended to deny a student access to a closed school loan discharge.
  • ED added a new definition of religious mission to differentiate between institutions with historical connections to religious orders and those with an ongoing religious mission. ED intends for religious institutions to have wide latitude in carrying out their religious mission across all aspects of their academic and nonacademic programs, functions, and responsibilities, and this change is intended to ensure that accreditors do not consider an institution's religious mission-based activities as a negative factor in applying and enforcing standards.

Recognition of Accreditation Agencies

  • ED added language allowing the expansion of an agency’s recognition by ED beyond the “geographic area” as currently provided in ED’s “scope of recognition” requirements. These proposed changes would allow agencies to not only accredit in the states in which the agency accredits main campuses, but also states in which it accredits only locations, branches, or both. ED’s intent is to stimulate competition amongst accreditors and enforce the idea that ED holds all accreditors to the same standards of quality.
  • ED has now waived the two-year requirement for accrediting agencies seeking recognition, so long as the agency is “affiliated with, or is a division of, a recognized agency” and can demonstrate that they have policies in place that meet all recognition criteria with respect to the expansion and that they can handle the expansion.
  • ED now recognizes “scope of recognition” or “scope” as “the range of accrediting activities for which the Department recognizes an agency” including “coverage of accrediting activities related to distance education or correspondence courses.”  Agencies seeking an expansion of scope must follow certain regulatory requirements, which include demonstrating sufficient policies and experience, submitting a written application to the Department with relevant standards and procedures, and submitting letters from at least three institutions that would seek accreditation under the expansion of scope.

State Authorization

  • ED requires institutions to have authorization either directly or through a reciprocity agreement such as NC-SARA in the state in which a student is located at the time of enrollment and subsequently, by the students reporting location change. Institutions must make this determination in accordance with their policies and procedures—which must be applied consistently to all students—and the institution must be able to provide the Secretary with written documentation of this determination upon request. This requirement differs from the 2016 State Authorization rule, which required authorization based on the student’s state of residence.
  • ED revised the definition of “State authorization reciprocity agreement” to be defined as an agreement between two or more States that authorizes an institution located and legally authorized in a State covered by the agreement to provide postsecondary education through distance education or correspondence courses to students located in other States covered by the agreement. ED further revised this definition to provide that it does not prohibit any member State of the agreement from enforcing its own general-purpose State laws and regulations outside of the State authorization of distance education.
  • In response to comments, ED revised its regulations from the proposed language in the proposed rule to provide that, for an institution covered by a reciprocity agreement, the institution is considered to meet state requirements for it to be legally offering postsecondary distance education or correspondence courses in the state, subject to any limitations in that agreement and to any additional requirements of the state not relating to authorization of distance education.

Institutional Information

  • ED requires institutions to disclose written arrangements under which an entity other than the institution itself provides all or part of a program to be included in the institution’s description of that program.
  • Institutions will have to disclose any written criteria used to evaluate and award credit for prior learning experience (i.e., in the military, for instance).
  • ED requires institutions offering programs leading to licensure to disclose if a program leading to licensure does not meet the educational licensure requirements for the state in which the student is located (or if the institution has not determined whether or not the program meets those requirements). ED would also require an institution to make a similar disclosure if the program in which a student was enrolled ceases to meet the educational requirements for licensure in the location where the student is located.
  • In response to comments, ED revised its regulations to provide that an institution must disclose enforcement actions or prosecutions by law enforcement agencies that, upon a final judgment, would result in an adverse action by an accrediting agency, revocation of State authorization, or suspension, limitation or termination of eligibility to participate in title IV. Investigations that have not progressed to pending enforcement actions or prosecutions need not be disclosed—regardless of their subject matter.

Special Rules Regarding Institutional Accreditation or Pre-accreditation

  • In its regulations, ED revised portions of the recognition of the accreditation to purportedly increase competition and specialization among accreditors while maintaining guardrails to ensure institutions cannot escape the consequences of failing to meet their accreditor’s standards. ED does this by imposing a “reasonable” standard on recognition of accreditation changes.
  • ED may determine an institution’s accreditation by multiple accreditors to be reasonable if the institution’s primary interest in seeking multiple accreditations is based on the original accrediting agency’s geographic area, program-area focus, or mission.
  • ED may find an institution’s change of accreditation, or possession of multiple accreditations, not reasonable where the institution underwent a revocation of accreditation or adverse action by its accreditor, imposed with due process, in the previous 24 months.

Eligibility of Additional Locations

  • ED changed its regulations to allow a closing school that is being added as an additional location by another institution to avoid the two-year pause on financial aid distribution. This change is intended to make it easier for closing locations to be acquired.
  • ED changed its regulations to allow an institution which has ceased participation to continue to disburse financial aid for 120 days in certain limited situations and with accreditor approval. The intent is to allow students who are near completion of their academic program to finish their program at their chosen institution rather than requiring them to relocate to another institution.

120-day Extension at the End of an Institution's Participation in Title IV Programs

  • ED revised regulations to clarify that the provision for continued participation in Title IV, HEA programs, for up to 120 days must precede the point at which the Department terminates the institution’s program participation agreement; to clarify that a student may take credits for the purpose of transferring to another institution; and to provide other clarifying and conforming edits.
  • ED added language to clarify that, in the event that the state authorizing agency or accrediting agency has made the decision to withdraw, suspend, or terminate accreditation or authorization, the Department may consider granting the institution a 120-day teach-out opportunity only if the institution’s state authorizing agency and accrediting agency agree that the cause for that negative action would not prevent the institution from conducting an orderly teach-out.