International Financial Law Prof Blog

Editor: William Byrnes
Texas A&M University
School of Law

Monday, April 10, 2017

Regulatory Relief For Accreditation

The Council for Higher Education Accreditation (CHEA) is a national, nongovernmental membership organization of 3,000 DeptOfEducation-Sealdegree-granting colleges and universities, the only organization with the sole purpose of providing national coordination of accreditation of higher education institutions and programs.

With the advent of a new Administration and Congress, regulatory relief has become a prominent topic of discussion. The purpose of this CHEA Position Paper is to offer proposals for the reduction of federal regulation as this applies to accreditation, whether in law, regulation or sub-regulatory guidance, acknowledging that the major challenge is at the regulatory/subregulatory levels. This reduction is not intended nor should result in reduced accountability for accreditation, but can provide a more effective and efficient regulatory framework for this important work.

CHEA sees this regulatory relief as central to achieving three major goals to move accreditation forward. These goals are doing more to: • Protect students: Strengthen accreditation rigor and provide expanded, readily understandable and accessible information about institutions and programs. • Advance innovation: Encourage fresh approaches to quality review of traditional providers and expand quality review to new providers and new credentialing. • Sustain the strengths of accreditation: Maintain and enhance the academic leadership of institutions and programs, peer review and the commitment to academic freedom. The federal government maintains an extensive scrutiny of accreditation, a process known as “recognition,” because accredited status is a requirement for institutions and programs to obtain and maintain eligibility for federal funds. At present, approximately $170 billion in student grants and loans, research and program funds go to institutions and programs annually.

Accreditation activity is governed by 10 pages of law, 27 pages of regulation and 88 pages of sub-regulation. Sub-regulation is augmented by “Dear Colleague” letters and “Guidance Letters” issued by USDE. There are more than 200 separate requirements that accrediting organizations must address in order to be considered federally recognized or to have emerged successfully from the USDE recognition review that they must undergo at least every five years.  

There is considerable evidence that enormous time and effort is involved in successfully navigating this regulatory regimen.  The recognition review requires, for all practical purposes, that an accreditor must attend to actual or expected demands of the federal government on an annual basis. Although accrediting organizations are nongovernmental bodies that are financed by higher education institutions and programs themselves, they are required to operate as if they were federal contractors.  The impact on these organizations, while assuring that they operate in a given way, is also deleterious.

The federal presence is disproportionate and distorts the accreditation enterprise. It seriously crowds available space for initiative and innovation. Especially in relation to the goals presented here, accreditors are forced to operate in a culture that, however unintentionally, discourages creativity and experimentation. Unless USDE agrees, accreditors are reluctant to act. They are not going to move forward with creative efforts and are inhibited with regard to risk-taking, anticipating that this could result in the loss of recognition.

Proposal One: Relief with Regard to Federal Regulation 1. Rethink the requirements for the extent of experience in order to become a recognized accreditor. 2. Streamline what is considered “substantive change” for an institution or program in order that fewer changes are subject to this process, including the establishment of branch campuses. 3. Remove the definition of credit hour. 4. Eliminate the requirement for confidentiality such that accreditors cannot inform institutions of investigations.

Proposal Two: Relief with Regard to Sub-Regulation: Dear Colleague Letters/Guidance Communications 1. Eliminate requirement for common definitions and terms. 2. Remove USDE final oversight in posting accreditor actions and decision letters. 3. Eliminate USDE oversight of differentiated review.

Proposal Three: Relief with Regard to Federal Law 1. Retain the Rule of Construction. Oppose legislation that would further expand excessive regulation such as the WarrenDurbin-Schatz Bill introduced in the 114th Congress. 2. Rethink the role of the National Advisory Committee on Institutional Quality and Integrity, including the creation of an alternative committee structure and operation. 3. Revise Negotiated Rulemaking to assure that it is a balanced, transparent and consultative process. 4. Require consultation with academics and accreditors for Dear Colleague Letters and Guidance Letters and clarify their role in federal oversight of accreditation.

https://lawprofessors.typepad.com/intfinlaw/2017/04/regulatory-relief-for-accreditation.html

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