March 4-6, 2009 meeting

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Issue #1

Proposed Regulatory Language

Team III – Accreditation

Origin: HEOA

Issue: Definitions of distance education and correspondence 

education

Statutory cites: HEOA section 103(a)(1)

Amends HEA section 103(7)

See page 10 of statutory language handout

Regulatory cites: 34 CFR § 602.3

Summary of issue: The HEOA provides a new definition of distance 

education. The definition in the accreditation regulations 

needs to be updated to correspond to the HEOA definition. 

In addition, in several places the HEOA uses the term 

“distance education” in conjunction with the term 

“correspondence”, which indicates that there is a distinction 

between the two modes of educational delivery. The 

accreditation regulations do not include a definition of 

correspondence. However, there is a definition in 34 CFR 

section 600.2 of the regulations that can be incorporated 

into the accreditation regulations. 

The proposed regulatory definition of “distance education”

replicates the statutory definition. The proposed regulatory 

definition of “correspondence” is the first paragraph of the 

definition of “correspondence course” from the Program 

Eligibility regulations. The second and third paragraphs of 

the definition are not germane to accreditation.

Proposed regulatory language: 

§ 602.3 What definitions apply to this part?

The following definitions apply to this part:

* * *

Correspondence education means a “home study” course 

provided by an institution under which the institution 

provides instructional materials, including examinations on 

the materials, to students who are not physically attending 

classes at the institution. When students complete a
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portion of the instructional materials, the students take 

the examinations that relate to that portion of the 

materials and return the examinations to the institution 

for grading. 

Distance education means education that uses one or 

more of the technologies listed in paragraphs (1) through 

(4) to deliver instruction to students who are separated 

from the instructor and to support regular and substantive 

interaction between the students and the instructor, either 

synchronously or asynchronously. The technologies include—

(1) The internet;

(2) One-way and two-way transmissions through open 

broadcast, closed circuit, cable, microwave, broadband 

lines, fiber optics, satellite, or wireless communications 

devices;

(3) Audio conferencing; or

(4) Video cassettes, DVDs, and CD-ROMs, if the 

cassettes, DVDs, or CD-ROMs are used in a course in 

conjunction with any of the technologies listed in 

paragraphs (1) through (3).
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Issue #2

Proposed Regulatory Language

Team III – Accreditation

Origin: HEOA

Issue: Accreditation team members

Statutory cites: HEOA section 495(2)(A)

Amends HEA section 496(c)(1)

See page 5 of statutory language handout

Regulatory cite: 34 CFR § 602.15

Summary of issue: The HEOA amends the list of required operating 

procedures by specifying that team members must be welltrained and knowledgeable about their responsibilities 

regarding distance education. Unlike in other accreditation 

provisions of the HEOA, this provision does not separately 

address distance education and correspondence education. 

The proposed regulatory language includes a reference to 

correspondence education since the training and knowledge 

required to evaluate correspondence education may be 

different from that required to evaluate distance education.

Proposed regulatory language:

§ 602.15 Administrative and fiscal responsibilities.

The agency must have the administrative and fiscal 

capability to carry out its accreditation activities in 

light of its requested scope of recognition. The agency 

meets this requirement if the agency demonstrates that--

(a) The agency has--

(1) Adequate administrative staff and financial 

resources to carry out its accrediting responsibilities;

(2) Competent and knowledgeable individuals, qualified 

by education and experience in their own right and trained 

by the agency on their responsibilities, including those 

regarding distance and correspondence education, and on the 

agency’s standards, policies, and procedures, to conduct 

its on-site evaluations, establish its policies, and make 

its accrediting and preaccrediting decisions;
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Issue #3

Proposed Regulatory Language

Team III – Accreditation

Origin: HEOA

Issue: Student achievement standard

Statutory cites: HEOA section 495(1)(B)

Amends HEA section 496(a)(5)(A) 

See page 3 of statutory language handout

Regulatory cites: 34 CFR § 602.16(a)(1)(i)

Summary of issue: The HEOA adds language to the standard related to student 

achievement that allows an agency to have different 

standards for different institutions and programs, as 

established by the institution. While the Secretary is 

prohibited from establishing any criteria that specifies, 

defines, or prescribes the standards that accrediting 

agencies use to assess any institution’s success with respect 

to student achievement, the Secretary is obliged to amend 

the regulations to reflect the new language in the HEOA. 

The proposed regulatory language is the same as the 

statutory language.

Proposed regulatory language: 

§ 602.16 Accreditation and preaccreditation standards 

(a) The agency must demonstrate that it has standards 

for accreditation and preaccreditation, if offered, that 

are sufficiently rigorous to ensure that the agency is a 

reliable authority regarding the quality of the education 

or training provided by the institutions or programs it 

accredits. The agency meets this requirement if--

(1) The agency’s accreditation standards effectively 

address the quality of the institution or program in the 

following areas:

(i) Success with respect to student achievement in 

relation to the institution’s mission, which may include 

different standards for different institutions or programs, 

as established by the institution, including, as 

appropriate, consideration of course completion, State 

licensing examinations, and job placement rates.
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Issue #4

Proposed Regulatory Language

Team III - Accreditation

Origin: HEOA

Issue: Operating procedures – Transfer of credit

Statutory cites: HEOA section 495(2)(C)

Amends HEA section 496(c)

See page 6 of statutory language handout

Regulatory cites: 34 CFR § 602.24 

Summary of issue: The HEOA requires accrediting agencies to confirm, as part of 

their review for accreditation or re-accreditation, that the 

institution has transfer of credit policies –

(1) that are publicly disclosed; and

(2) that include a statement of the criteria established by the 

institution regarding the transfer of credit earned at another 

institution of higher education.

Commenters at the public hearings on HEOA noted that the 

language in the HEOA is clear, and there is no need to modify 

it. The Department concurs, with minor changes to conform 

the statutory changes to the regulatory construct. “Initial” has 

been added before “accreditation”. “Preaccreditation” needs 

to be included along with accreditation, and the regulations use 

the phrase “renewal of accreditation” rather than “reaccreditation.”

Proposed regulatory language: Add a new subsection (d) as follows:

(d) The accrediting agency must confirm, as part of its 

review for initial accreditation or preaccreditation, 

or renewal of accreditation, that the institution has 

transfer of credit policies that—

(1) Are publicly disclosed; and

(2) Include a statement of the criteria established 

by the institution regarding the transfer of credit 

earned at another institution.
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Issue #5 - REVISED

Proposed Regulatory Language

Team III - Accreditation

Origin: HEOA

Issue: Operating procedures – Teach-out plan approval

Statutory cites: HEOA section 495(2)(C)

Amends HEA section 496(c) by adding a new paragraph (3)

See page 5 of statutory language handout

HEOA section 493(f)

Amends HEA section 487 by adding a new paragraph (f)

See page 15 of statutory language handout

HEOA section 496

Amends HEA section 498 by adding a new paragraph (k)

See page 15 of statutory language handout

Regulatory cites: 34 CFR § 602.24(c)(4) and (6)

Summary of issue: Current regulations in § 602.24 specify that if an agency’s 

accreditation enables an institution to obtain eligibility to 

participate in the title IV programs, the agency must require the 

institution to submit any teach-out agreement the institution enters 

into with another institution for agency approval. The regulations 

in § 602.3 define ―teach-out agreement‖ as ―a written agreement 

between institutions that provides for the equitable treatment of 

students if one of those institutions stops offering an educational 

program before all students enrolled in that program have 

completed the program.‖

The HEA amendments stipulate that the Secretary may not 

recognize an accrediting agency for purposes of title IV eligibility 

unless the agency requires an institution to submit a teach-out plan

to the accrediting agency for approval if any of following events 

occurs:

(1) The Department notifies the accrediting agency that it 

has taken an emergency action or taken action to limit, 

suspend, or terminate the participation of the institution 

in any title IV program;

(2) The accrediting agency acts to withdraw, terminate or 

suspend the accreditation of the institution; or

(3) The institution notifies the accrediting agency that the 
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institution intends to cease operations.

Section 487– Program Participation Agreements – as amended by 

the HEOA provides that whenever the Secretary initiates an action 

to limit, suspend, or terminate an institution’s participation in any 

Title IV program or initiates an emergency action against an 

institution, the institution must prepare a teach-out plan for 

submission to its accrediting agency. The teach-out plan must be 

prepared in accordance with section 496(c)(4) of the HEA and any 

applicable Title IV regulations or accrediting agency standards. A 

―teach-out plan‖ is defined as ―a written plan that provides for 

equitable treatment of students if an institution ceases to operate 

before all students have completed their program of study, and 

may include, if required by the institution’s accrediting agency or 

association, an agreement between institutions for such a teach-out 

plan.‖

Section 498 – Eligibility and Certification Procedures – as 

amended by the HEOA, provides that a location of a closed 

institution is eligible as an additional location of another institution 

for the purpose of conducting a teach-out if the teach-out is 

approved by the institution’s accrediting agency. The institution 

that conducts the teach-out under this provision is permitted to 

establish a permanent additional location at the closed institution 

without having to satisfy the requirements for additional locations 

in sections 102(b)(1)(E) and 103(c)(1)(C) of the HEA—i.e., that a 

proprietary institution or a postsecondary vocational institution 

must have been in existence for two years to be eligible—and 

without assuming the liabilities of the closed location.

Should the definition of teach-out plan be added to the 

accreditation regulations? Should the definition of teach-out 

agreement be amended? What processes should be followed by 

accrediting agencies in reviewing teach-out plans and agreements? 

What is the role of the accrediting agency in approving the 

additional location? What are the implications of these statutory 

changes in situations where different accrediting agencies accredit 

the two institutions that have a teach-out agreement? 

Note: Team V will be developing regulations related to institutional requirements for 

teach-outs and eligibility and certification procedures in the treatment of teach-outs. 

These will be shared with Team III for review and comment.
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Issue # 6

Issue Paper

Team III - Accreditation

Origin: ED

Issue: Definition of Recognition 

Statutory Cite: HEA section 496 (o)

See page 9 of statutory language handout

Regulatory Cite: None

Summary of Issue: The Higher Education Act provides authority to the 

Secretary to promulgate regulations for the recognition of 

accrediting agencies. These regulations do not now have a 

definition of ―recognition‖ and have left some confusion to 

what it means to be recognized by the Secretary. 

Without a definition, the conditional nature of recognition 

may not be well understood by agencies and the institutions 

and programs they accredit.
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Issue # 7

Issue Paper

Team III – Accreditation

Origin: ED

Issue: Demonstration of compliance within 12 months and 

recognition when not fully compliant

Statutory Cite(s): HEA Sections 496(l)(1)(B)

See page 8 of statutory language handout 

Regulatory Cites(s): 34 CFR § 602.32(b), § 602.35(b) and § 602.40

Summary of Issue: The 1998 HEA amendments instituted a timeframe of 12 

months for agencies to come into compliance unless the 

Secretary grants an extension for ―good cause.‖ 

Under the current regulations, the National Advisory 

Committee on Institutional Quality and Integrity (NACIQI) 

may recommend deferral of a decision on recognition if it 

concludes that 1) immediate loss of recognition is 

unwarranted, and 2) the agency will achieve compliance 

with the criteria before the expiration of the deferral period 

(i.e. 12 months).

However, in practice, deferral recommendations have been 

exercised on a limited basis. To address the range of 

noncompliance issues when the Staff and/or the Committee 

has concluded an agency can achieve compliance within 

the 12-month timeframe, the Secretary has granted a period 

of recognition (up to 5 years) and required submission of an 

―interim report‖ for the agency to demonstrate compliance 

within 12 months. This raises questions as to the status of 

agencies that, in effect, meet the criteria for ―deferral‖ 

above, but have not been issued a ―deferral‖ 

recommendation. How can the regulatory language be 

amended to reflect a more ―value-neutral‖ recommendation 

that meets the criteria under ―deferral‖? 
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Issue #8

Issue Paper

Team III – Accreditation

Origin: HEOA and ED

Issue: Recognition Procedures – Subparts C & D

Statutory Cite(s): HEOA Sections 106, 495(1)(A), 495(5)

HEA Sections 496(d), 496(l), and 496(m), 496(o)

See pages 6, 7 and 8 of statutory language handout

Regulatory Cites(s): 34 CFR 602, Subparts C & D

Summary of Issue: Two Sets of Procedures for Recognition

Under Subparts C & D of the current regulations, two sets 

of procedures for recognition are outlined: Subpart C 

defines the review procedures for an agency’s application 

for initial or continued recognition; Subpart D defines 

procedures for limitation, suspension, and termination 

(hereafter ―L, S, & T‖ actions) of recognition. The 

existence of two independent sets of procedures has proven 

to be unwieldy and confusing. How can these sections be 

combined to ensure efficient, effective, expeditious, and 

fair proceedings, and to ease operational burdens? How 

should the current time-consuming construct by which the 

Secretary makes recognition decisions, whether the agency 

appeals or not, and by which an appeal is from a 

recommendation only, be changed? 

NACIQI’s Authority – Section 106 of the HEOA

Furthermore, the new provisions under Section 106 of the 

HEOA authorize the Chairperson of the National Advisory 

Committee on Institutional Quality and Integrity (NACIQI) 

to establish the agenda for Committee meetings (upon 

approval of the Secretary’s designated federal official per 

the Federal Advisory Committee Act). This change, and 

the Committee’s role in a decision to put an agency not 

otherwise scheduled for review on the agenda, should be 

made explicit in this section. The regulations also need 

revision to clarify the process for bringing recognized 

agencies about whom third parties have complained, or 

about whom the Department or the Committee has 

concerns, before the Committee at any meeting. 
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How can Subparts C & D be reworked, in view of: 1) the 

responsibility of the staff to put its concerns about an 

agency’s compliance before the Committee in a timely 

manner, and to avoid undue delay between recognition 

reviews; 2) the responsibility of recognized agencies to 

maintain and to demonstrate complete compliance 

throughout the period of recognition; and 3) the 

responsibility of the advisory committee to exercise its best 

judgment regarding continued recognition any time an 

agency is brought before it? 

Procedures for Evaluating an Agency’s Application of 

Standards for Distance and Correspondence Education –

Section 495(1)(A) of the HEOA

Section 495(1)(A) of the HEOA also appears to 

contemplate separate consideration by the Secretary of 

agency accrediting standards and processes as applied to 

traditional, distance, and correspondence instruction. 

Should this be reflected in the Department's procedural 

regulations? 

Procedures for NACIQI Reviews – Section 495(5) of the 

HEOA

Section 495(5) of the HEOA requires a process for bringing 

an agency that has incorporated distance or correspondence 

education in its scope of recognition (through written notice 

to the Secretary), before NACIQI if the enrollment of an 

accredited institution or program that offers distance or 

correspondence increases by 50 percent or more within a 

fiscal year. This provision will need to be incorporated into 

the recognition procedures. 
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Issue # 9

Issue Paper

Team III - Accreditation

Origin: Higher Education Reconciliation Act (HERA)

Issue: Direct Assessment Program Definition

Statutory Cite: HEA section 481 (b)(4)

See page 14 of statutory language handout

Regulatory Cite: None

Summary of Issue: The HERA added a new eligible program under Title IV of 

the HEA – an instructional program that uses direct 

assessment of a student’s learning, or recognizes the direct 

assessment of student learning by others, in lieu of 

measuring student learning in credit or clock hours. The 

law requires that the direct assessment be “consistent with 

the accreditation of the institution or program utilizing the 

results of the assessment.” The institution must provide to 

the Secretary a factual basis for its claim that the program 

or portion of the program is equivalent to a specific number 

of credit or clock hours. For programs being determined 

eligible for Title IV participation for the first time, or being 

modified, the Secretary must determine eligibility before 

the program can be considered eligible. 

Section 668.10 of current regulations describes both direct 

assessment programs and what institutions must provide to 

have such programs determined eligible. Section 668.10 

also includes a requirement that an accrediting agency 

review and approve the program for inclusion in the 

institution’s grant of accreditation and to evaluate the 

institution’s claim of the direct assessment program’s 

equivalence in terms of credits or clock hours. 

There is currently no definition in 34 CFR Part 602 for 

direct assessment programs and no references to direct 

assessment programs in accrediting agency recognition 

regulations. How should the accrediting agencies’ 

responsibilities with respect to the evaluation of direct 

assessment programs be addressed in regulations governing 

the recognition of accrediting agencies? 
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Issue #10

Issue Paper

Team III – Accreditation

Origin: HEOA

Issue: Distance education and correspondence education 

Statutory cites: HEOA sections 495(1)(A) and (5)

 Amends HEA section 496(a)(4)(B) and (q)

See pages 2-3 and 9 of statutory language handout

Regulatory cites: 34 CFR § 602.16, § 602.17, § 602.18, § 602.19, § 602.22, § 602.23 

and § 602.27(d) 

Summary of issue: The HEOA requires an accrediting agency that has or wants to 

include distance education or correspondence education in its 

scope to demonstrate that its standards effectively address the 

quality of an institution’s distance or correspondence education 

program. An agency need not have separate standards, policies or 

procedures for the evaluation of distance and correspondence 

education. In addition, a recognized agency may change its scope 

of recognition to include distance and correspondence education by 

notifying the Secretary of the change in writing; it does not, for 

this purpose, need to obtain the approval of the Secretary. The 

section of the regulations on accreditation and preaccreditation 

standards needs to be amended to reflect distance and 

correspondence education where appropriate

In maintaining recognition for accreditation of distance or 

correspondence education, or providing notification to the 

Secretary that it intends to expand its scope to include distance or 

correspondence education, what should the agency do to 

demonstrate that its standards effectively address the quality of an 

institution’s distance or correspondence program? 

Accrediting agencies must require institutions that offer distance 

education or correspondence education to have processes in place

to establish that the student who registers for a distance education 

or correspondence course or program is the same student who 

participates in and completes the program and receives the 

academic credit. The conference report language on this provision 

makes clear that institutions should not use or rely on technologies 

that interfere with student privacy. However, the expectation is 

that institutions have security mechanisms in place, such as 
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identification numbers, or other pass code information, that are 

used each time student participates in class time or coursework 

online. While the conference report speaks just to distance 

education, it may be appropriate to address student authentication 

in a correspondence course. The conference report notes that as 

new identification technologies are developed, and become more 

sophisticated and less expensive, the conferees anticipate that 

agencies and institutions will consider their use in the future.

An accrediting agency that has expanded its scope to include 

distance or correspondence education by notifying the Secretary, is 

to be reviewed at the next available NACIQI meeting if the 

enrollment at an institution it accredits, that offers distance or 

correspondence education, experiences enrollment growth of 50 

percent or more during the institution’s fiscal year. The 

regulations need to reflect these changes. (Note: see the issue 

paper on operating procedures – growth monitoring.)
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Issue #11

Issue Paper

Team III - Accreditation

Origin: HEOA and ED

Issue: Monitoring of Institutions and Programs throughout Period

Statutory Cite: HEOA section 495(2)(C)

Amends HEA sections 496(c)(1), (c)(2), (q)

See pages 5 and 9 of statutory language handout

Regulatory Cite: 34 CFR § 602.19

Summary of Issue: Current monitoring regulations are general in nature, 

requiring an agency to reevaluate, at regularly established 

intervals, the institutions or programs it has accredited or 

preaccredited and to monitor the institutions and programs 

throughout the accreditation period to ensure they remain in 

compliance with the agency’s standards. 

The Higher Education Opportunity Act (HEOA) inserted 

new provisions into the HEA requiring agencies to monitor 

the growth of programs at accredited institutions that are 

experiencing significant enrollment growth, and to be 

accountable in the recognition process if the enrollment of 

accredited institutions that offer distance or correspondence 

education increases by 50 percent or more within any one 

institutional fiscal year. The Criteria for Recognition need 

to implement these provisions. 

The combination of relatively long periods between 

comprehensive reviews, the passage of the new HEOA 

provisions, the call for additional accountability, and an 

ever-changing higher education environment underscores 

the importance of regular monitoring of institutions and 

programs by accrediting agencies. The lack of specificity 

in current regulations creates confusion and a wide variety 

of approaches undertaken by agencies. In addition, 

accrediting agencies have noted that the expectation that 

the monitoring will ensure compliance with all the agency’s 

standards is unreasonable.
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Issue #12

Issue Paper

Team III - Accreditation

Origin: HEOA

Issue: Operating procedures – Growth Monitoring

Statutory cites: HEOA section 495(2)(C)

Amends HEA section 496(c) by adding a new paragraph (2)

See page 5 of statutory language handout

Regulatory cites: 34 CFR § 602.19 

Summary of issue: The HEOA amendments add a new monitoring requirement.

Agencies must monitor the growth of programs at institutions that 

are experiencing significant enrollment growth. 

This new requirement raises a number of questions. How should 

enrollment growth be calculated? What is significant enrollment 

growth? What does it mean to monitor the growth of programs? 

What methods should agencies employ to ensure adequate 

monitoring of institutional enrollment growth? Monitoring growth 

of programs would appear to be within the purview of specialized 

accreditors, as well as institutional accreditors. Does this mean 

specialized accreditors will also need to obtain information on 

institutional enrollment growth?

Significant enrollment growth might be considered a substantive 

change that would require reporting fewer than section 602.22, 

given that it might adversely affect the capacity of the institution to 

continue to meet agency standards. If it isn’t considered a 

substantive change, what sort of reporting or information gathering 

requirement should there be? 

A related issue is the new statutory requirement (HEOA section 

495(5)), which amends HEA section 496 by adding a new 

subsection (q)) that NACIQI review at its next available meeting 

any accrediting agency that has expanded its scope to include 

distance education if the agency has accredited an institution that 

offers distance education or correspondence education and the 

institution’s enrollment has grown by 50 percent or more within 

one institutional fiscal year. In order to comply with this 

requirement, agencies that expand their scope to include distance 

education or correspondence education will need to monitor the 
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enrollment growth at institutions that offer distance or 

correspondence education. Again, how should enrollment growth 

be measured, and how should agencies and the Department obtain 

the information necessary?
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Issue #13

Issue Paper

Team III - Accreditation

Origin: ED

Issue: Substantive Change

Statutory Cite: HEA section 496(a)(1), (a)(4), (c)(1), (c)(2), (c)(4), (c)(5), 

498(i)

See pages 1,2,5,6, and 14-15 of statutory language handout

Regulatory Cite: 34 CFR § 602.22

Summary of Issue: Section 496 (a)(1) and (a)(4) of the HEA require 

recognized accrediting agencies to demonstrate their ability 

to operate as accrediting agencies and to consistently 

enforce standards that ensure courses and programs, 

including those offered by distance or correspondence, are 

of sufficient quality to achieve their stated objectives. 

Agencies are also required to perform on-site inspections 

and review of institutions as well as certain oversight 

activities with respect to various institutional changes, 

including changes of ownership. 

Current regulations provide a list of changes an agency 

must include in its definition of a substantive change and 

specify procedures an agency must have for the approval of 

an additional location. The regulations require that the 

policies of the agency ensure that any substantive change to 

the educational mission, or program or programs of an 

institution, after the agency has accredited or preaccredited 

the institution, does not adversely affect the capacity of the 

institution to continue to meet the agency’s standards. 

The Department believes that, due to the pace with which 

change is occurring in higher education, with distance

education programs, new locations being added for 

institutions, new curriculum and ownership changes, it is 

important to review the substantive change regulations to 

ensure that they are appropriate for the current higher 

education environment. In addition, the Department wants 

to ensure that agencies are interpreting the determination of 

a substantive change consistently. 
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Issue #14

Issue Paper

Team III - Accreditation

Origin: ED

Issue: Record Keeping and Confidentiality

Statutory Cite: HEA sections 496(a)(1), (a)(7), (a)(8), (c)(7), (c)(8), (c)(9), 

(n) , (o)

See pages 1,4,6,8 and 9 of statutory language handout

Regulatory Cite: 34 CFR § 602.15 (b), § 602.27(f), and § 602.30 (c)

Summary of Issue: Over time, the Department has encountered difficulty in 

obtaining information from accrediting agencies relevant to 

Title IV eligibility and compliance. In some instances, the 

difficulty arose when an agency did not retain the requested 

information. In other cases, agencies have been reluctant to 

provide the requested information to the Department due to 

confidentiality concerns, in spite of Title IV provisions 

requiring each participating institution to acknowledge the 

authority of the Secretary and accrediting agencies to share 

with each other information pertinent to institutional 

eligibility. 

In addition, while current regulations (§602.30(c)) state that 

the Secretary does not make available to the public any 

confidential agency materials a Department employee 

reviews during the evaluation of the agency’s application 

for recognition or the agency’s compliance with the criteria 

for recognition, the Department cannot by regulation limit 

its obligation to adhere to the disclosure requirements in the 

Freedom of Information Act (FOIA.). FOIA does provide 

several exemptions from disclosure, the most relevant one 

being information concerning trade secrets and commercial 

or financial information that is privileged or confidential. 

In this case, the Department wants to replace or revise § 

602.30(c) so as to ensure the sharing of necessary 

information from agencies while at the same time 

complying with the disclosure requirements of FOIA.

The Department also wants to work to develop a rule that 

ensures the retention of necessary data and information

while not imposing unnecessary burdens on agencies. 
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Issue #15

Issue Paper 

Team III - Accreditation

Origin: HEOA

Issue: Due process and appeals

Statutory cites: HEOA section 495(1)(C)

Amends HEA 496(a)

See pages 3-4 of statutory language handout

Regulatory cites: 34 CFR § 602.18, § 602.23(a) and § 602.25

Summary of issue: The HEOA modifies the due process requirements to specify that 

each accrediting agency establish and apply review procedures 

throughout the accrediting process, including evaluation and 

withdrawal proceedings, that (1) adequately specify in writing the 

requirements for accreditation as well as all deficiencies identified 

at the institution or program being evaluated; (2) provide sufficient 

opportunity for written response from the institution or program, 

within a specified timeframe, before final action is taken in 

evaluation and withdrawal proceedings; (3) provide, on written 

request, the right to appeal any action deemed adverse under the 

statute, before it becomes final, at a hearing before an appeals 

panel that has different members than the original decision-making 

body and that is subject to a conflict of interest policy; (4) provide 

for the right to participation by counsel for the institution or 

program during the hearing on appeal; and (5) in accordance with 

written procedures, and prior to an adverse action based solely 

upon failure to meet a standard or criterion pertaining to finances 

becoming final, provide the institution or program with an 

opportunity for agency review, not separately appealable, of any 

significant financial information submitted by the institution that 

was previously unavailable to the institution or program and that 

bears materially on the financial deficiencies identified by the 

agency. 

To what extent do the due process regulations need to be expanded 

to incorporate the more expansive requirement for clear standards 

and notice of deficiencies? 

In addition, the HEOA uses the phrase "adverse action" several 

times in amending the recognition provisions of the Higher 

Education Act. What definition of this term is both workable and 
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consistent with the statute? The HEOA also provides that an 

appeals panel may not include any members of the decisionmaking body that ―made the adverse decision‖. Is there a need to 

draw a distinction between an ―adverse decision‖ and an ―adverse 

action‖? 

The statute also requires that appeals panel members be subject to 

a conflict of interest policy. Are there requirements which such a 

policy should include? Likewise, the amendments provide for a 

"hearing" before the appeals panel. What procedures should 

agencies follow in providing this hearing? 

How does the new provision allowing an institution or program to 

introduce new information on finances fit into the appeal timeline? 

Can an institution or program that was cited for not meeting 

several standards, but successfully appeals all but the financial 

issue, avail itself of this new provision?

The statute speaks to ―significant financial information that was 

unavailable to the institution or program prior to the determination 

of the adverse action, and that bears materially on the financial 

deficiencies identified by the agency or association.‖ Do the 

regulations need to define ―significant financial information‖ or 

specify parameters for bearing ―materially on the financial 

deficiencies‖?
March 4-6, 2009 meeting

 Prepared 2/18/09 – Page 22

Issue #16

Issue Paper

Team III – Accreditation

Origin: HEOA

Issue: Operating procedures – Summary of agency actions

Statutory cites: HEOA section 495(2)(D)

Amends HEA section 496(c)(7)

See page 6 of statutory language handout

Regulatory cites: 34 CFR § 602.26

Summary of issue: The HEOA made changes to the actions and information agencies 

must disclose.

The HEOA requires that an agency make available to the public 

and the State licensing or authorizing agency, and submit to the 

Secretary, a summary of agency or association actions, including--

(1) the award of accreditation or reaccreditation of an 

institution;

(2) final denial, withdrawal, suspension, or termination of 

accreditation of an institution, and any findings made in 

connection with the action taken, together with the official 

comments of the affected institution; and

(3) any other adverse action taken with respect to an 

institution or placement on probation of an institution.

It appears that current section 602.26(a) adequately covers 

paragraph (1) above, but that changes need to be made to 

602.26(b) to reflect the requirement to disclose ―any findings made 

in connection with the action taken, together with the official 

comments of the affected institution‖ and ―any other adverse 

action...or placement on probation‖, new requirements that are 

included in (2) and (3) above.