Issue #12: Recognition procedures

**Issue #13: Decision-making authority**

**Tentative agreement: Not yet fully discussed**

## ***The bolded text reflects changes made on 4-26-07*. *The highlighted text is new.***

# Tracked changes are suggestions made by the non-federal negotiators

Subpart A -- General

§602.3 What definitions apply to this part?

\* \* \*

*Recognition* means an unappealed determination by the senior Department
official under 34 C.F.R. §602.34, or a determination by the Secretary on
appeal under 34 C.F.R.

§602.36, that an accrediting agency complies with the criteria for
recognition listed in subpart B of this part and that the agency is
effective in its performance with respect to those criteria.

Subpart C -- The Recognition Process

§602.31 How does Department staff review an agency's application?

\* \* \*

\(b\) Department staff analyzes the agency's application to determine
whether the agency satisfies the criteria for recognition, taking into
account all available relevant information concerning the compliance of
the agency with those criteria and any deficiencies in the agency's
performance with respect to the criteria. The analysis includes---

> (1)Observations from site visits, on an announced or unannounced basis
> to the agency or on an announced basis to some of the institutions or
> programs it accredits or preaccredits.
>
> \(2\) Responses, as appropriate to third party comment
>
> \(3\) Responses, to the issues raised by the agency's review of the
> draft staff analysis which will be provided to the agency no later
> than eight weeks before the scheduled Advisory Committee hearing.
>
> \* \* \*
>
> \(e\) Except with respect to an application that is withdrawn under
> paragraph (d) of this section, when Department staff completes its
> evaluation of the agency, the staff --
>
> (2)Sends the analysis including detailed explanations of all areas in
> which an agency is considered to be out of compliance, if any, and all
> supporting documentation, including all third-party comments the
> Department received by the established deadline, to the agency no
> later than sixty days before the Advisory Committee meeting; and
>
> (3)Invites the agency to provide a written response to the staff
> analysis and third-party comments, specifying a deadline which
> provides at least thirty days for the agency's response; and

(4)Sends the complete record, including the final analysis and all
pertinent information, to the agency and the Advisory Committee no later
than two (2) weeks prior to the Advisory Committee meeting.

\* \* \*

\(f\) An agency may request that the Advisory Committee defer acting on
an application at the meeting if the Department staff fails (1) to
provide the agency with the materials described in paragraph (2) of this
section at least sixty days before the Advisory Committee meeting or (2)
to provide the agency and the Advisory Committee with the complete
record described in paragraph (4) two weeks prior to the Advisory
Committee meeting. If the Department's failure to send the materials or
the complete record in accordance with the time frames of paragraphs (2)
and (4) is due to the failure of the agency to submit reports, other
information or its response by the deadlines established, the agency
forfeits its right to request a deferral.

§602.32 **What** **procedures will the Department staff follow in
investigating recognized agencies?**

\(a\) Department staff may conduct an investigation into the compliance
of a recognized agency with the criteria for recognition at any time, on
its own initiative, at the request of the Advisory Committee, **or based
on any other relevant information received, including any third party
complaint** **that,upon investigation, appears credible and raises
issues relevant to recognition**. The investigation may include, but
need not be limited to, any of the activities described in 34 C.F.R.
§602.31(b)(1), (b)(2), (b)(3), and (c).

\(b\) If, in the course of the investigation, Department staff
**concludes that** one or more **material deficiencies may exist in the
agency's** compliance with the criteria for recognition, it---

\(1\) **Must notify the agency in writing of the criteria and issues of
concern and discuss the matter with agency representatives**;

\(2\) If not satisfied **with** the agency's **explanation, establishes
a time period, not to exceed three months from the date of the notice
provided under paragraph (1), during which the agency must file a
written report (including documentation) demonstrating compliance with
the criteria cited by the staff or presenting an acceptable plan to
resolve** **all issues the staff has raised;**

\(3\) **Reviews any report submitted by an agency under paragraph (2)
and, if still dissatisfied---**

**(i)** Establishes a schedule for the review of the issues by the
Advisory Committee;

**(ii)** Publishes a notice in the Federal Register inviting the public
to comments on the agency's compliance with the criteria in question and
establishing a deadline for receipt of public comment;

**(iii)** Provides State licensing or authorizing agencies, all
currently recognized accrediting agencies, and other appropriate
organizations with copies of the Federal Register notice;

**(iv)** Prepares a written analysis of the agency's compliance with the
criteria identified that reflects the results of the investigation, and
that includes a recommendation regarding what action to take with
respect to recognition. Possible recommendations include, but are not
limited to, limiting, suspending, or terminating recognition;

**(v)** Sends its analysis and all supporting documentation to the
agency for response and, if necessary, prepares an addendum, all in
accordance with §602.31(e)(2), (e)(3), (f), and (g);

**(vi)** Before the Advisory Committee ~~meeting~~ **[hearing]{.mark}**,
provides the Advisory Committee with any materials generated or obtained
under this section, along with any other information Department staff
relied on in developing its analysis; and

**(vii)** At least 30 days before the Advisory Committee ~~meeting~~
**[meets to conduct hearings for review of agencies]{.mark}**, publishes
a notice of the meeting in the Federal Register inviting interested
parties, including those who submitted third-party comments concerning
the agency's compliance with the criteria for recognition, to make oral
presentations before the Advisory Committee.

[§602.33 ~~What is the role of the Advisory Committee in the review of
an agency's application?~~ **[How are Advisory Committee hearings for
review of agencies conducted?]{.mark}**]{.underline}

\(a\) The Advisory Committee considers an agency's application for
recognition **and staff analysis and agency response, if any,**
**prepared under** §**602.31,** or a staff analysis prepared under
§602.32 together with the associated agency report **and response**,
~~at~~ **[in]{.mark}** a public ~~meeting~~ **[hearing]{.mark}** and
invites Department staff, the agency, and other interested parties to
make oral presentations ~~at~~ **[during]{.mark}** the ~~meeting~~
**[hearing]{.mark}**. A transcript is made of ~~each~~ **[all]{.mark}**
Advisory Committee ~~meeting~~ **[hearings]{.mark}**.

\(b\) When it concludes its review, the Advisory Committee makes such
recommendations to the senior Department official as the Committee deems
appropriate, including, but not limited to, a recommendation to approve,
deny, limit, suspend, or terminate recognition, or to defer a decision
on the agency's application for recognition. If at least three fourths
of the eligible voting members of the Advisory Committee are not
available to vote on the recommendation, the agency, at its option may
request **and receive** a deferral.

(1)(i) The Advisory Committee recommends approval of recognition if the
agency complies with the criteria for recognition listed in subpart B of
this part and if the agency is effective in its performance with respect
to those criteria.

\(ii\) If the Advisory Committee recommends approval, the Advisory
Committee also recommends a recognition period and a scope of federal
recognition.

\(iii\) If the recommended scope or period of federal recognition is
less than that requested by the agency, the Advisory Committee explains
its reasons under section (d) of this section for recommending the
lesser scope or recognition period.

(2)(i) If **the Advisory Committee determines that the** agency fails to
comply with the criteria for recognition cited in the Department staff
analysis, or if **it determines that** the agency is not effective in
its performance with respect to those criteria, the Advisory Committee
recommends denial, limitation, suspension, or termination of
recognition, unless the Advisory Committee concludes that a deferral by
the senior Department official under paragraph (b)(3) of this section is
warranted.

\(ii\) If the Advisory Committee recommends denial, limitation,
suspension, or termination of recognition, the Advisory Committee
specifies the reasons for its recommendation, including all criteria the
agency fails to meet and all areas in which the agency fails to perform
effectively.

\(iii\) If the Advisory Committee identifies areas of noncompliance with
the criteria for recognition (or in the effectiveness of agency
performance with respect to those criteria) that are not identified in
the Department staff analysis before the Advisory Committee, the
Advisory Committee defers further consideration of the agency [~~until
its next meeting~~]{.mark}, and Department staff conducts an
investigation under 34 C.F.R. §602.32 of only the new issues raised by
the Advisory Committee.

\* \* \*

\(c\) At the conclusion of its ~~meeting~~ **[hearings for review of
agencies]{.mark}**, the Advisory Committee forwards its recommendations
to the senior Department official, except as provided in paragraph
(b)(2)(iii) of this section. The senior department official, as defined
by \_\_\_\_, shall be free of conflicts of interest and shall not have
participated in the staff analysis under section 602.31 or investigation
recommendations under section 602.32.

\(d\) Each agency under review will receive the Advisory Committee's
written recommendation regarding its proposed status within sixty days
of the hearing.

\(e\) Each agency shall have the opportunity to provide comments on the
Advisory Committee's recommendation to the senior department official
within fifteen days of receipt of the Advisory Commmittee's written
recommendation.

[§602.34 What does the senior Department official consider when making a
recognition decision?]{.underline}

The senior Department official makes a decision regarding recognition of
an agency based on the entire record made under 34 C.F.R. §§602.31 or
602.32, including the following:

\(a\) The Advisory Committee's written recommendation and any
accompanying Agency response.

\(b\) The Department staff analysis of the agency.

\(c\) Any addendum to the Department staff analysis.

\(d\) Any agency response to the Department staff analysis and
third-party comments.

(e)The agency's application submitted under 34 C.F.R. §602.31, or its
report submitted under 34 C.F.R. §602.32, and supporting documentation.

\(f\) All written third-party comments forwarded by Department staff to
the Advisory Committee for consideration ~~at the meeting~~ **[during
the Advisory Committee hearing]{.mark}**.

\(g\) A transcript of all oral presentations **[made during]{.mark}**
~~at~~ the Advisory Committee ~~meeting~~ **[hearing]{.mark}**.

[§602.35 What information does the senior Department official's
recognition decision include?]{.underline}

\(a\) The senior Department official, within ninety days of the Advisory
Committee's hearing, notifies the agency in writing of the senior
Department official's decision regarding the agency's recognition.

\(b\) The decision the senior Department official may make includes, but
is not limited to, approving, denying, limiting, suspending, or
terminating recognition, or deferring a decision on the agency's
recognition.

(1)(i) The senior Department official approves recognition if the agency
complies with the criteria for recognition listed in subpart B of this
part and if the agency is effective in its performance with respect to
those criteria.

\(ii\) If the senior Department official approves recognition, the
recognition decision defines the scope of recognition and the
recognition period.

\(iii\) If the scope or period of recognition is less than that
requested by the agency, the senior Department official explains the
reasons for approving a lesser scope or recognition period.

(2)(i) If the agency fails to comply with the criteria for recognition
in subpart B of this part, or if the agency is not effective in its
performance with respect to those criteria, the senior Department
official denies, limits, suspends, or terminates recognition, unless the
senior Department official concludes that a deferral under paragraph
(b)(3) of this section is warranted.

\(ii\) If the senior Department official denies, limits, suspends, or
terminates recognition, the senior Department official specifies the
reasons for this decision, including all criteria the agency fails to
meet and all areas in which the agency fails to perform effectively with
respect to the criteria.

(3)(i) The senior Department official may defer a decision on
recognition if the senior Department official concludes that the
agency's deficiencies do not warrant immediate denial, limitation,
suspension, or termination of recognition and if the senior Department
official concludes that the agency will demonstrate or achieve
compliance with the criteria for recognition and effective performance
with respect to those criteria before the expiration of the deferral
period.

\(ii\) In the deferral decision, the senior Department official states
the bases for the senior Department official's conclusions, specifies
any criteria for recognition the agency fails to meet, and identifies
any areas in which the agency fails to perform effectively with respect
to the criteria.

\(iii\) The senior Department official also establishes a deferral
period, which begins on the date of the senior Department official's
decision.

\(iv\) The deferral period may not exceed 12 months, either as a single
deferral period or in combination with any expiring deferral period in
which similar deficiencies in compliance or performance were cited by
the senior Department official, except that the senior Department
official may grant an extension of an expiring deferral period at the
request of the agency for good cause shown.

\(c\) No recognition period may exceed five years. Prior to the
expiration of a period of recognition, an agency desiring renewal must
apply under 34 C.F.R.

§602.31.

\(d\) If the senior Department official does not reach a final decision
to approve, deny, limit, suspend, or terminate an agency's recognition
before the expiration of its recognition period, the senior Department
official automatically extends the recognition period until the final
decision is reached.

\(e\) Unless appealed in accordance with 34 C.F.R.

§602.36, the senior Department official's decision is the final decision
of the Secretary.

§602.36 How may an agency appeal the senior Department official's
decision?

\(a\) The agency may appeal the senior Department official's decision to
the Secretary and request a hearing, and such appeal stays the decision
of the senior department official to limit, suspend or terminate the
agency's recognition until its final disposition. If an agency wishes to
appeal, the agency must\--

\(1\) Notify the Secretary and the senior Department official in writing
of its intent to appeal the decision no later than 10 days after receipt
of the decision;

\(2\) Submit its appeal to the Secretary in writing no later than 30
days after receipt of the decision; and

\(3\) Provide the senior Department official with a copy of the appeal
at the same time it submits the appeal to the Secretary.

\(b\) The senior Department official may file a written response to the
appeal. To do so, the senior Department official must---

\(1\) Submit a response to the Secretary no later than 30 days after
receipt of a copy of the appeal; and

\(2\) Provide the agency with a copy of the senior Department official's
response at the same time it is submitted to the Secretary.

\(c\) Neither the agency nor the senior Department official may include
any new evidence in its submission, i.e., evidence it did not previously
submit to the Advisory Committee.

\(d\) The Secretary is required to use Department staff who are
objective and free of conflicts of interest to review the materials
submitted by both the agency and Department and make recommendations
concerning the Secretary's decision on the appeal.

\(e\) On appeal, the Secretary makes a recognition decision in
accordance with 34 C.F.R. §602.34, rendering a final decision after
taking into account the senior Department official's decision and the
parties' written submissions on appeal, as well as the entire record
before the Advisory Committee and the Advisory Committee's opinion. The
Secretary notifies the agency in writing of the Secretary's decision
regarding the agency's recognition within ninety days.

§602.37 May an agency appeal the Secretary's final decision to deny,
limit, suspend, or terminate its recognition?

An agency may appeal the Secretary's decision under this part in the
Federal courts as a final decision in accordance with applicable Federal
law.