April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 1 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 (and 34 CFR 600.2)

Summary of change s :

Amends current regulations to incorporate definitions of “correspondence education” and

“distance education”.

Changes :

**§ 602.3 What definitions apply to th is part?** 

The following definitions apply to this part:

* * *

**Correspondence education means**  **:**

**(1 )**  **E ducation provided through one or more**  **“home**

**study” course s**  **by an institution under which the**

**institution provides instructional materials, by mail or** 

**e lectronic transmission,**  **including examinations on the**

**materials, to students who are separated from the**

**instructor.**

**(2) Interaction between the instructor and the**

**student is limited, is not regular and substantive, and is**

**primarily initiated by the stud ent.** 

**(3) Correspondence courses are typically self** 

**- paced.** April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 2 **(4) Correspondence education may not be considered** 

**distance education.**

* * *

**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 o r 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** 

**casset tes, DVDs, or CD** 

**- ROMs are used in a course in** 

**conjunction with any of the technologies listed in**

**paragraphs (1) through (3).**

**§ 600.2 Definitions**

**.**

* * *

Correspondence course: (1) A “home study” course

provided by an institution under which the institut ion

provides instructional materials, **by mail or electronic**

**transmission,** including examinations on the materials, to

students who are not physically attending classes at the

institution **separated from the instructor.** When students

complete a portion of t he instructional materials, the

students take the examinations that relate to that portionApril 21

- 23, 2009 meeting Prepared April 13, 2009 Page 3 of the materials, and return the examinations to the

institution for grading. **Interaction between the**

**instructor and student is limited, is not regular and** 

**substan tive,**  **and is primarily initiated by the student.**

**Correspondence courses are typically self**

**- paced.** 

(2) A home study course that provides instruction in

whole or in part through the use of video cassettes or

video discs in an award year is a correspondenc e course

unless the institution also delivers the instruction on the

cassette or disc to students physically attending classes

at the institution during the same award year.

( 3 **2** ) If a course is part correspondence and part

residential training, the Secret ary considers the course to

be a correspondence course.

**( 3**  **) A correspondence course may not be considered** 

**distance education.**April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 4 Issue #2

Proposed Regulatory Language

Team III

– Accreditation

Origin: HEOA

Issue: A ccreditation 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 change:

Adds the statutory requirement that evaluation team members are trained by the agency on their responsibilities

Change:

**§ 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

--

* * *

(2) Competent and knowledgeable individuals,

qualified by education and experience in their own right

and trained by the agency on **their re sponsibilities, as** 

**appropriate for their roles, regarding the agency’s** its

standards, policies, and procedures, to conduct its on

- site

evaluations, **apply or** establish its policies, and make its

accrediting and preaccrediting decisions, **including**

**, if** 

**applic able to the agency’s scope, their responsibilities** 

**regarding distance and correspondence education** ;April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 5 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) and (e)

Summary of change:

Amends current regulations to make them consistent with the statutory language and adds

the sta tutory language from the Rule of Construction.

Change:

**§ 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

addr ess 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 b y the institution,**  including, as

appropriate, consideration of State licensing examinations,

course completion, and job placement rates.April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 6 * * * * *

**(e) Not**  **hing in paragraph (a) restricts**

**--**

**(1) An accrediting agency from setting, with the** 

**involveme nt**  **of its members, and applying accreditation** 

**standards for or to institutions or programs that seek**

**review by the agency; or** 

**(2) An institution**  **from developing and using** 

**institutional standards to show its success with respect to**

**student achievement, whic h achievement may be considered as** 

**part of any accreditation review, with accrediting agency**

**approval.**April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 7 Issue #4

Proposed Regulatory Language

Team III

- Accreditation

Origin: HEOA

Issue: Operating procedures

– Transfer of credit

S tatutory cites: HEOA section 495(2)(C) Amends HEA section 496(c) See page 6 of statutory language handout

Regulatory cite: 34 CFR 602.24

Summary of change:

Amends current regulations on operating procedures to address transfer of credit policies.

Change :

**§ 602.24 Additional procedures certain institutional**

**accreditors must have.**

* * * * *

**(e) Transfer of credit policies.**  **The accrediting**

**agency must confirm, as part of its review for initial**

**accreditation or preaccreditation, or renewal of** 

**accreditation, that the institution has t ransfer of credit** 

**policies that**

**--**

**(1) Are publicly disclosed in accordance with**

**§ 668.43; and** 

**(2) Include a statement of the criteria established**

**by the institution regarding the transfer of credit earned** 

**at another institution of higher education.**April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 8 Issue #5

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

Regulatory cites: 34 CFR 602.3 and 602.24(c)

Summary of Change s :

Amend s current regulations to add a definition of “teach

- out plan” and to require

submission of teach

- out plan s to accrediting agencies under specified conditions.

Change s :

**§ 602.3 What defin itions apply to this part?** 

The following definitions apply to this part:

* * *

Teach

- out agreement means a written agreement between

institutions that provides for the equitable treatment of

students **and a reasonable opportunity for students to**

**co mplete their program of study**  if one of those **an**

institution s **, or an institutional location that provides** 

**one hundred percent of at least one program offered**

**,** stops

offering **one or more of its**  an educational program **s** before

all students enrolled in that pr ogram have completed the **ir**

program **of study**

.April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 9 **Teach**

**- out plan**  **means a written plan developed by an** 

**institution that provides for the equitable treatment of** 

**students if an institution , or**  **an institutional location**

**that provides one hundred percent of at leas**  **t one program,**

**cease s**  **to operate before all students have completed their**

**program of study, and may include, if required by the**

**institution’s accrediting agency, a teach** 

**- out agreement** 

**between institutions**

**.**

**§ 602.24**  **Additi onal procedures certain institu**  **tional**

**accreditors must have.**

* * * * *

(c ) Teach

- out **plans and** agreement s

. **(1) The agency**

**must require an institution it accredits or preaccredits to** 

**submit a teach**

**- out plan to the agency for approval upon the** 

**occurrence of any of the following even ts**  **:**

**(i) The Secretary notifies the agency that the** 

**Secretary has initiated an emergency action against an** 

**institution, or an action to limit, suspend, or terminate** 

**an institution participating in any t**  **itle IV, HEA program**

**,**

**in accordance with the rel**  **evant portions of**  **s ubpart G of** 

**part 668** 

**.**

**(ii) The agency acts to withdraw, terminate, or** 

**suspend the accreditation or preaccr editation of the** 

**institution.**

**(iii) The institution notifies the agency that it** 

**intends to cease operations entirely or close a loc**  **ation**

**that provides one hundred percent of at least one program.** 

**(iv) A State licensing or authorizing agency notifies** 

**the agency that an institution’s license or legal**April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 10 **authorization to provide an educational program has been or**

**will be revoked.**

**(2) The agency must evaluate the teach** 

**- out plan**  **to**

**ensure it provides for the equitable treatment of students**

**under criteria established by the agency**  **and does not**

**result in duplicative or increased**  **charges**

**.**

**(3) If the agency approves a teach** 

**- out plan that** 

**in cludes a program that is accredited by**  **another recognized**

**accrediting agency, it must notify that accrediting agency**

**of its approval.**

**( 4**  **) The agency may require an institution**  **it**

**accredits or preaccredits to**  **enter into a teach** 

**- out** 

**agreement as part of its teach** 

**- out plan.** 

(1) **(5)** The agency must require an institution it

accredits or preaccredits that enters into a teach

- out

agreement **, either on its own or at the request of the**

**agency,** to submit that teach

- out agreement to the agency

for approval. (2) The ag ency may approve the teach

- out

agreement only if the agreement is between institutions

that are accredited or preaccredited by a nationally

recognized accrediting agency, is consistent with

applicable standards and regulations, and provides for the

equitab le treatment of students by ensuring that

--

(i) The teach

- out institution has the necessary

experience, resources, and support services to

--

(A) P rovide an educational program that is of

acceptable quality and reasonably similar in content,

structure, a nd scheduling to that provided by the closed

institution **that is ceasing operations, either entirely or**

**at one of its locations;** andApril 21

- 23, 2009 meeting Prepared April 13, 2009 Page 11 (B) R emain stable, carry out its mission, and meet

all obligations to existing students; and

(ii) The teach

- out institut ion demonstrates that it

can provide students access to the program and services

without requiring them to move or travel substantial

distances **or to incur duplicative or increased charges**

.

(3) (d) **Closed Institution.** If an institution the

agency accredi ts or preaccredits closes **without a teach**

**- out** 

**plan or agreement** , the agency must work with the Department

and the appropriate State agency, to the extent feasible,

to ensure that students are given reasonable opportunities

to complete their education witho ut additional **duplicative**

**or increased** charge **s**

.

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

teach

- outs and eligibility and certification procedures regarding the treatment of teach

outs. In the 2 nd se ssion, Team V is starting with the proposed regulatory language for

teach

- out plan that is provided above. However, discussion may lead to an amended

definition. Team III will have an opportunity to review and comment on the Team V

definition.April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 12 Issue #6

Proposed Regulatory Language

Team III

- Accreditation

Origin: ED

Issue: Definition of Recognition

Statutory Cite : HEA section 496 (o)

Regulatory Cites : 34 CFR 602.3

Summary of Change :

The Higher Education Act provides authority to the Secretary to promulgate regulations for the recognition of accrediting agencies. This draft regulation amends the current definition section of the accreditation regulations to pro vide for a definition of recognition. [ NOTE : The cross references are to sections of subpart C as restructured in issues 7 and 8]

Change:

**§ 602.3 What definitions apply to this part?** 

The following definitions apply to this part:

* * *

**Recogn ition**  **means an unappealed determination by the**

**senior Department official under §602.36**  **, or a**

**determination by the Secretary on appeal under §602.37** 
**,**
**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. Recognition may be revoked at any time**

**prior to its expiration upon a determination made in** 

**accordance with s**  **ubpart C that the agency no longer** 

**complies with the subpart B cr iteria or that it has become** 

**ineffective in its performance with respect to those**

**criteria.**April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 13 Issue s #7 and #8

Proposed Regulatory Language

Team III

– Accreditation

Origin: HEOA and ED

Issue s : Recogn ition Procedures

– Subparts C & D Demonstration of compliance within 12 months and recognition when not fully compliant

Statutory Cite s : HEA Sections 496(l)(1)(B) HEA Sections 496(d), 496(l), and 496(m), 496(o)

HEOA Section 106, 495(1)(A), 495( 5)

Regulatory Cites : 34 CFR 602.3 and 602 Subparts C & D

Summary of Changes :

Reflects changes made by the HEOA regarding the review of distance education and correspondence education and the role of chairperson of NACIQI in establishing the meeting ag enda. Amends current regulations by combining Subparts C & D, thereby streamlining agency review procedures. Establishes the senior Department official as

the decision

- maker on recognition and the Secretary as the decision

- maker on appeals.

Clarifies t hat agencies may be out of compliance for no more than 12 months, after which time a decision on recognition will be made on the basis of a compliance report. Establishes a process for reviewing agencies at any time during their period of recognition.

Ch anges:

**§ 602.3 What definitions apply to this part**  ?

The following definitions apply to this part:

* * *

**Compliance report means a written report that the**  1

**Department requires an agency to file to demonstrate that**  2

**the agency has addressed deficiencie**  **s specified in a** 3

**decision letter from the senior Department official or the** 4

**Secretary.** 5

6April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 14 * * * 1 **Designated Federal Official means the**  **F ederal officer**  2

**designated under s**  **ection 10(f) of the Federal Advisory** 3

**Committee Act, 5 U.S.C. Appdx**

**. 1.**  4

5

SUBPART C

- The Recognition Process 6

APPLICATION AND REVIEW BY DEPARTMENT STAFF 7

**§ 602.30 Activities covered by recognition procedures.**  8

Recognition proceedings are administrative actions 9

taken o n any of the following matters: 10

(a) A pplications for initial or continued recognition 11

submitted under § 602.31(a)

. 12

(b) Applications for an e xpansion of scope submitted 13

under § 602.31(b). 14

(c) Compliance reports submitted under § 602.31(c). 15

(d) Reviews of agencies that have expanded their 16

scope of recognition by notice, following receipt by the 17

Department of information of an increase in headcount 18

enrollment described in § 602.19(f). 19

(e) Staff analyses identifying areas of non

20

compliance based on a review conducted under § 602.33. 21

22

**§ 602.31 Agency submissions to the Department.**  23

( a) Applications for recognition or renewal of 24

recognition . An accrediting agency seeking initial or 25

continued recognition must submit a written application to 26

the Secretary. Each accrediting agency must submit an 27

application for continued recognition at least once every 28

five years, or within a shorter time period specified in 29

the final recognition decision. The application must 30

consist of

-- 31April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 15 (1) A statement of the agency’s requested scope of 1

recognition; 2

(2) Evidence that the agency complies with the 3

criteria for recognition listed in subpart B of this part 4

and is effective in its performance with respect to those 5

criteria; 6

(3) Evidence of how an agency that includes or seeks 7

to include distance education or correspondence education 8

in its scope of recognition applies its standards in 9

evaluating programs and institutions it accredits that 10

offer distance education or correspondence education; and 11

(4) Supporting documentation. 12

(b) Applications for expansions of scope. An agency 13

seeking an expansi on of scope by application must submit a 14

written application to the Secretary. The application 15

must

-- 16

(1) Specify the scope requested; 17

(2) Include documentation of experience in accordance 18

with § 602.12(b); and 19

(3) Provide copies of any relevant standar ds, 20

policies or procedures developed and applied by the agency 21

and documentation of the application of these standards, 22

policies or procedures. 23

(c) Compliance reports. If an agency is required to 24

submit a compliance report, it must do so within 30 days 25

following the end of the period for achieving compliance, 26

not to exceed 12 months, specified in the decision of the 27

senior Department official or Secretary, as applicable. 28

(d) Review following an increase in headcount 29

enrollment. If an agency has reporte d an increase in 30April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 16 headcount enrollment under § 602.19(f) for an institution it 1

accredits, or if the Department notifies the agency of such 2

an increase at one of the agency’s accredited institutions, 3

the agency must, within 30 days of reporting the increase 4

or receiving notice of the increase from the Department, as 5

applicable, submit a report addressing

-- 6

(1) How it evaluates the capacity of institutions or 7

programs it accredits to accommodate large increases in 8

enrollment and maintain educational quality; 9

(2) The results of the evaluation in the case of the 10

individual institution(s) or programs(s) that triggered the 11

review; and 12

(3) Any other information the Department may require. 13

(e) Consent to sharing of information. By submitting 14

an application for recognition, the agency authorizes 15

Department staff to observe its site visits to one or more 16

of the institutions or programs it accredits or 17

preacredits, and to visit locations where agency activities 18

such as training, review and evaluation panel meetings , and 19

decisions meetings take place, on an announced or 20

unannounced basis throughout the application process and 21

during any period of recognition ; to obtain copies of all 22

documents the staff deems necessary to complete its review 23

of the agency; and to gain access to agency records, 24

personnel and facilities. 25

( f ) Public availability of agency records obtained by 26

the Department. (1) The Secretary’s processing and 27

decision making on requests for public disclosure of agency 28

materials reviewed under this p art a re governed by the 29

Freedom of Information Act, 5 U.S.C. §552; the Trade 30

Secrets Act, 18 U.S.C. §1905; the Privacy Act of 1 974, as 31April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 17 amended, 5 U.S.C §552a; the Federal Advisory Committee Act, 1

5 U.S.C. Appdx

. 1, and all other applicable laws. In 2

recognition proceedings, a gencies must

-- 3

(i) Redact information that would identify 4

individuals or institutions that is not essential to the 5

Department’s review of the agency; 6

(ii) Make a good faith effort to designate all 7

business information within agency submissi ons that the 8

agency believes would be exempt from disclosure under 9

exemption 4 of the Freedom of Information Act (FOIA), 5 10

U.S.C

. § 552(b)( 4). A blanket designation of all 11

information contained within a submission, or of a category 12

of documents

, as meeting this exemption will not be 13

considered a good faith effort and will be disregarded; 14

(iii) Identify any other material the agency believes 15

would be exempt from public disclosure under FOIA, the 16

factual basis for the request and any legal basis the 17

agency h as identified for withholding the document from 18

disclosure; and 19

(iv) Ensure documents submitted are only those 20

required for Department review or as requested by 21

Department officials. 22

(2) The Secretary processes FOIA requests in 23

accordance with 3 4 CFR p ar t 5 and makes all documents 24

provided to the Advisory Committee available to the public. 25

26

**§ 602.32 Procedures for**  **Department review**  **of applications** 27

**for recognition or for change in scope, compliance reports,**  28

**and increases in enrollment.** 29April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 18 (a ) After receipt of an agency’s application for 1

initial or continued recognition, or change in scope, or an 2

agency’s compliance report, or an agency’s report submitted 3

under § 602.31(d), Department staff publishes a notice of 4

the agency’s application or report in the Fed eral Register 5

inviting the public to comment on the agency’s compliance 6

with the criteria for recognition and establishing a 7

deadlin e for receipt of public comment. 8

(b) The Department staff analyzes the agency’s 9

application for initial or renewal of recog nition, 10

compliance report, or report submitted under § 602.31(d) to 11

determine whether the agency satisfies the criteria for 12

recognition, taking into account all available relevant 13

information concerning the compliance of the agency with 14

those criteria and i n the agency’s performance with respect 15

to the criteria, and any previously identified 16

deficiencies. The analysis of an application for 17

recognition and, as appropriate, of a report required under 18

§ 602.31(c) or (d), includes

-- 19

(1) Observations from site v isit(s), on an announced 20

or unannounced basis, to the agency or to a location where 21

agency activities such as training, review and evaluation 22

panel meetings, and decision meetings take place and to one 23

or more of the institutions or programs it accredits o r 24

preaccredits; 25

(2) Review of the public comments and other third

26

party information the Department staff receives by the 27

established deadline, and the agency’s responses to the 28

third

- party comments, as appropriate, as well as any other 29

information Departm ent staff assembles for purposes of 30

evaluating the agency under this part; and 31April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 19 (3) Review of complaints or legal actions involving 1

the agency. 2

(c) The Department staff analyzes the materials 3

submitted in support of an application for expansion of 4

scope t o ensure that the agency has the requisite 5

experience, compliant policies, capacity and performance 6

record to support the request. 7

(d) Department staff’s evaluation of an agency may 8

also include a review of information directly related to 9

institutions or programs accredited or preaccredited by the 10

agency relative to their compliance with the agency’s 11

standards, the effectiveness of the standards, and the 12

agency’s application of those standards. 13

(e) If, at any point in its evaluation of an agency 14

seeking i nitial recognition, Department staff determines 15

that the agency fails to demonstrate compliance with the 16

basic eligibility requirements in §§ 602.10 through 602.13, 17

the staff

-- 18

(1) Returns the agency’s application and provides the 19

agency with an explanatio n of the deficiencies that caused 20

staff to take that action; and 21

(2) Recommends that the agency withdraw its 22

application and reapply when the agency can demonstrate 23

compliance. 24

(f) Except with respect to an application that has 25

been returned or is withdr awn under paragraph (e) of this 26

section, when Department staff completes its evaluation of 27

the agency, the staff

-- 28

(1) Prepares a written draft analysis of the agency; 29

(2) Sends the draft analysis includ ing any identified 30

areas of non

- compliance and a p roposed recognition 31April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 20 recommendation , and all supporting documentation, including 1

all third

- party comments the Department received by the 2

established deadline, to the agency ; 3

(3) Invites the agency to provide a wri tten response 4

to the draft analysis and pr oposed recognition 5

recommendation and third

- party comments, specifying a 6

deadline that provides at least 30 days for the agency’s 7

response; 8

(4) Reviews the response to the draft analysis the 9

agency submits, if any, and prepares the written final 10

analysis . The final analysis includes a recognition 11

recommendation to the senior Department official

, as the 12

Department staff deems appropriate, including, but not 13

limited to, a recommendation to approve, deny, limit, 14

suspend, or terminate recognition , require th e submission 15

of a compliance report and continue recognition pending a 16

final decision on compliance, or approve or deny a request 17

for expansion of scope ; and 18

(5) Provides to the agency, no later than seven days 19

before the Advisory Committee meeting, the f inal staff 20

analysis and any other available information provided to 21

the Advisory Committee under § 602.34(c). 22

(g ) The agency may request that the Advisory 23

Committee defer acting on an application at that Advisory 24

Committee meeting if Department staff fails to provide the 25

agency with the materials d escribed , and within the 26

timeframes provided, in paragraphs (f)( 3 ) and (f)(5) of 27

this section

. If the Department staff’s failure to send 28

the materials in accordance with the timeframe described in 29

paragraph (f)( 3 ) or (f)(5) of this section is due to the 30

failure of the agency to submit reports to the Department, 31April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 21 other information the Secretary requested, or its response 1

to the draft analysis

, by the deadline established by the 2

Secretary, the agency forfeits its rig ht to request a 3

deferral of its application. 4

5

**§ 60**  **2.33 Procedures for Department**  **review of agencies** 6

**during the period of recognition.** 7

(a ) Department staff may review the compliance of a 8

recognized agency with the criteria for recognition at any 9

time

-- 10

(1 ) On its own initiative; 11

(2) A t the request of the Advisory Committee ; or 12

(3) B ased on any other relevant information received, 13

including a ny third party complaint that, upon analysis, 14

appears credible and raises issues relevant to recognition

. 15

(b) The review may include, but need not be limited 16

to, any of the activities described in §602.32(b) and ( d ). 17

(c ) If, in the course of the review , Department staff 18

concludes that one or more deficiencies exist in the 19

agency’s compliance with the criteria for re cognition or in 20

the agency’s effectiveness in its performance with respect 21

to those criteria , it

-- 22

( 1 ) Prepares a written draft analysis of the agency’s 23

compliance with the criteria of concern. The analysis 24

reflects the results of the review , and i nclud es a 25

recommendation regarding what action to take with respect 26

to recognition. Possible recommendations include, but are 27

not limited to, a recommendation to limit, suspend , or 28

terminate recognition , or require the submission of a 29

compliance report and to continue recognition pending a 30

final decision on compliance; 31April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 22 ( 2 ) Sends the draft analysis including any identified 1

areas of non

- compliance, and a proposed recognition 2

recommendation, and all supporting documentation to the 3

agency, and 4

(3) Invites the a gency to provide a written response 5

to the draft analysis and proposed recognition 6

recommendation, specifying a deadline that provides at 7

least 30 days for the agency’s response. 8

(d) If, after review of the agency’s response to the 9

draft analysis, Departm ent staff concludes that the agency 10

has not demonstrated compliance, the staff

-- 11

(1) Notifies the agency that the draft analysis will 12

be finalized for presentation to the Advisory Committee; 13

(2) Publishes a notice in the Federal Register 14

including, if pr acticable, an invitation to the public to 15

comment on the agency’s compliance with the criteria in 16

question and establishing a deadline for receipt of public 17

comment; 18

( 3 ) Provides the agency with a copy of all public 19

comments received and, if practicable

, invites a written 20

response from the agency; 21

( 4 ) Finalizes the staff analysis as necessary to 22

reflect its review of any agency response and any public 23

comment received; and 24

( 5 ) Provide s to the agency, no later than seven days 25

before the Advisory Committee meeting, the final staff 26

analysis and a recognition recommendation and any other 27

information provided to the Advisory Committee under 28

§ 602.34(c )

**.** 29

(e) If, after review of the agency’s response to the 30

draft analysis, Department staff concludes that the age ncy 31April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 23 has demonstrated compliance with the criteria for 1

recognition, the staff notifies the agency of the results 2

of the review. If the review was requested by the Advisory 3

Committee, staff provides the Committee with the results of 4

the review

. 5

6

REVIEW BY T HE NATIONAL ADVISORY COMMITTEE ON INSTITUTIONAL 7

QUALITY AND INTEGRITY 8

**§ 602.34 Advisory Committee meetings.**  9

(a ) Department staff submits a proposed schedule to 10

the Chairperson of the Advisory Committee based on 11

anticipated completion of staff analyses. 12

(b) T he Chairperson of the Advisory Committee 13

establish es an agenda for the next meeting and, in 14

accordance with the Federal Advisory Committee Act

, 15

presents it to the Designated Federal Official for 16

approval

. 17

(c ) Before the Advisory Committee meetin g , Department 18

staff provides the Advisory Committee with

-- 19

(1) The agency’s application for recognition or for 20

expansion of scope, the agency’s compliance report, or the 21

agency’s report submitted under § 602.31(d), and supporting 22

documentation; 23

(2) The fi nal Department staff analysis of the agency 24

developed in accordance with § 602.32 or § 602.33, and any 25

supporting documentation ; 26

(3) At the request of the agency, the agency’s 27

respo nse to the draft staff analysis; 28

(4) Any written third

- party comments the D epartment 29

received about the agency on or before the est ablished 30

deadline; 31April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 24 (5 ) Any agency response to third

- party comments; and 1

(6 ) Any other information Department staff relied on 2

in developing its analysis. 3

(e ) At least 30 days before the Advisory Co mmittee 4

meeting , the Department publishes a notice of the meeting 5

in the Federal Register inviting interested parties, 6

including those who submitted third

- party comments 7

concerning the agency’s compliance with the criteria for 8

recognition, to make oral pr esentations before the Advisory 9

Committee. 10

(f) The Advisory Committee considers the materials 11

provided under paragraph (c) in a public meeting and 12

invites Department staff, the agency, and other interested 13

parties to make oral presentations during the mee ting. A 14

transcript is made of all Advisory Committee meetings. 15

(g) The written motion regarding each agency’s 16

recognition will be made available during the Advisory 17

Committee meeting. The Department will provide each 18

agency, upon request, with a copy of the motion on 19

recognition. 20

( h ) After each meeting of the Advisory Committee at 21

which a review of agencies occurs, the Advisory Committee 22

forwards to the senior Department official its 23

recommendation with respect to each agency, which may 24

include

, but is not limited to, a recommendation to 25

approve, deny, limit, suspend, or terminate recognition , to 26

grant or deny a request for expansion of scope, or to 27

require the agency to submit a compliance report and to 28

continue recognition pending a final decision on 29

c ompliance

. 30

31April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 25 **§ 602.35 Responding to the Advisory Committee’s**  1

**recommendation.** 2

( a) Within ten days of the date of the Advisory 3

Committee meeting

, the agency and Department staff may 4

submit written comments to the Senior Department official 5

on the Advisory Committee’s recommendation. The agency 6

must simultaneously submit a copy of its written comments, 7

if any, to Department staff. Department staff must 8

simultaneously submit a copy of its written comments, if 9

any, to the agency. 10

(b) Comments may address

-- 11

(1) Any Advisory Committee recommendation that the 12

agency or Department staff believes is not supported by the 13

record; 14

(2) Omissions in the Advisory Committee 15

recommendation; and 16

(3) Disagreement with the Advisory Committee’s 17

recommendation on recogniti on and, at the agency’s or 18

Department staff’s discretion, a draft proposed decision 19

for the senior Department official’s consideration. 20

(c)(1) The agency may not submit additional 21

documentary evidence with its comments unless the Advisory 22

Committee’s reco gnition recommendation proposes finding the 23

agency noncompliant with, or ineffective in its performance 24

with respect to, a criterion or criteria for recognition 25

not identified in the final Department staff analysis 26

provided to the Advisory Committee. 27

(2) Within ten days of receipt by the Department 28

staff of an agency’s comments or new evidence, if 29

applicable, or of receipt by the agency of the Department 30

staff’s comments, Department staff, the agency, or both, as 31April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 26 applicable, may submit a response to the se nior Department 1

official. Simultaneously with submission, the agency must 2

provide a copy of any response to the Department staff. 3

Simultaneously with submission, Department staff must 4

provide a copy of any response to the agency. 5

6

REVIEW AND DECISION BY THE SENIOR DEPARTMENT OFFICIAL 7

**§ 602.36 Senior Department official’s decision.**  8

(a) The senior Department official makes a decision 9

regarding recognition of an agency based on the record 10

compiled under § § 602.32, 602.33, 602.34 and 602.35 11

including, as ap plicable, the following: 12

( 1) The materials provided to the Advisory Committee 13

under §602.34(c); 14

(2) The transcript of the Advisory Committee meeting; 15

(3) Written comments and responses submitted under 16

§602.35; 17

(4) New evidence submitt ed in accordance w ith 18

§602.35(c) (1); 19

(5) A communication from the Secretary referring an 20

issue to the senior Department official’s consideration 21

under §602.37(e). 22

(b) In the event that statutory authority or 23

appropriations for the Advisory Committee ends, or there 24

are few er duly appointed Advisory Committee members than 25

needed to constitute a quorum, the senior Department 26

official may make a decision in a recognition proceeding 27

based on the record compiled under §602.32 or §602.33. Any 28

decision made by the senior Departme nt official absent a 29

recommendation from the Advisory Committee may be appealed 30

to the Secretary as provided in §602.37. 31April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 27 ( c ) Following consideration of an agency’s recognition 1

under this section, the senior Department official issues a 2

recognition decisi on. 3

( d ) Except with respect to matters referred to the 4

senior Department official under § 602.37(e), the senior 5

Department official notifies the agency in writing of the 6

senior Department official’s decision regarding the 7

agency’s recognition within 90 day s of the Advisory 8

Committee meeting. 9

( e ) The senior Department official’s decision may 10

include, but is not limited to, approving, denying, 11

limiting, suspending, or terminating recognition, granting 12

or denying an application for an expansion of scope, or 13

c ontinuing recognition pending submission and review of a 14

compliance report under §§ 602.32 and 602.34, and review of 15

the report by the senior Department official under § 602.35

. 16

(1)(i) The senior Department official approves 17

recognition if the agency compli es with the criteria for 18

recognition listed in subpart B of this part and if the 19

agency is effective in its performance with respect to 20

those criteria. 21

(ii) If the senior Department official approves 22

recognition, the recognition decision defines the scope of 23

recognition and the recognition period. The recognition 24

period does not exceed five years, including any time 25

during which recognition was continued to permit submission 26

and review of a compliance report. 27

(iii) If the scope or period of recognition i s less 28

than that requested by the agency, the senior Department 29

official explains the reasons for approving a lesser scope 30

or recognition period. 31April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 28 (2 )(i) Except as provided in paragraph ( e )(3), if the 1

agency either fails to comply with the criteria for 2

re cognition listed in subpart B of this part, or is not 3

effective in its performance with respect to those 4

criteria, the senior Department official denies, limits, 5

suspends, or terminates recognition. 6

(ii) If the senior Department official denies, 7

limits, s uspends, or terminates recognition, the senior 8

Department official specifies the reasons for this 9

decision, including all criteria the agency fails to meet 10

and all areas in which the agency fails to perform 11

effectively with respect to the criteria. 12

(3)(i) Excep t as provided in paragraph (2)

, if a 13

recognized agency fails to demonstrate compliance or 14

effective performance in one or more areas, but the senior 15

Department official concludes that the agency will 16

demonstrate or achieve compliance with the criteri a for 17

recognition and effective performance with respect to those 18

criteria within twelve months or less, the senior 19

Department official may continue the agency’s recognition, 20

pending submission by the agency of a compliance report, 21

review of the report und er §§ 602.32 and 602.34, and review 22

of the report by the senior Department official under this 23

section. In such a case, the senior Department official 24

specifies the criteria the compliance report must address, 25

and a time period, not longer than twelve mont hs, during 26

which the agency must achieve compliance and effective 27

performance. The compliance report documenting compliance 28

and effective performance is due not later than 30 days 29

after the end of the period specified in the senior 30

Department official’s d ecision. 31April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 29 (ii) If, following submission of a compliance report, 1

the senior Department official determines that an agency 2

has not complied with the criteria for recognition

, or has 3

not demonstrated effective performance with respect to 4

those criteria, duri ng the time period specified by the 5

senior Department official in accordance with paragraph 6

(3)(i) , the senior Department official denies, limits, 7

suspends, or terminates recognition, except, in 8

extraordinary circumstances, upon a showing of good cause 9

for an extension of time as determined by the senior 10

Department official and detailed in the senior Department 11

official’s decision . If the senior Department official 12

determines good cause for an extension has been shown, the 13

senior Department official specif ies the length of the 14

extension and what the agency must do during it to merit a 15

renewal of recognition. 16

( f ) If the senior Department official determines

**,** 17

based on the record, that a decision to deny, limit, 18

suspend, or terminate an agency’s recognition m ay be 19

warranted based on a finding that the agency is 20

noncompliant with, or ineffective in its performance with 21

respect to, a criterion or criteria of recognition not 22

identified earlier in the proceedings as an area of 23

noncompliance, the senior Department official provides

-- 24

(1) The agency with an opportunity to submit a 25

written response and documentary evidence addressing the 26

finding; and 27

(2) The staff with an opportunity to present its 28

analysis in writing. 29

( g ) If information regarding an agency, but no t 30

contained in the record, comes to the senior Department 31April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 30 official’s attention while a decision regarding the 1

agency’s recognition is pending before the senior 2

Department official, and if the senior Department official 3

concludes the recognition decision sh ould not be made 4

without consideration of the information, the senior 5

Department official either

-- 6

(1 )(i) Does not make a decision regarding recognition 7

of the agency ; and 8

(ii) Refers the matter to Department staff for review 9

and analysis under §§ 602.32 or 602.33, as appropriate, and 10

consideration by the Advisory Committee under § 602.34; or 11

(2)(i) Provides a copy or summary of the information 12

to the agency and Department staff; 13

(ii) Permits the agency to respond to the senior 14

Department official and the Department staff in writing, 15

and to include additional evidence relevant to the issue, 16

and specifies a deadline; 17

(iii) Provides Department staff with an opportunity 18

to respond in writing to the agency’s submission under 19

paragraph (ii), specifying a deadl ine; and 20

(iv) Issues a recognition decision based on the 21

record described in paragraph (a), as supplemented by the 22

information provided under this paragraph. 23

( h ) No agency may submit information to the senior 24

Department official, or ask others to submit information on 25

its behalf, for purposes of invoking paragraph ( g )

. 26

( i ) If the senior Department official does not reach 27

a final decision to approve, deny, limit, suspend, or 28

terminate an agency’s recognition before the expiration of 29

its recognition period , the senior Department official 30April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 31 automatically extends the recognition period until a final 1

decision is reached. 2

( j ) Unless appealed in accordance with §602.37, the 3

senior Department official’s decision is the final decision 4

of the Secretary. 5

6

APPEAL RIGH TS AND PROCEDURES 7

**§602.37 Appealing the senior Department official’s**  8

**decision to the Secretary.** 9

(a) The agency may appeal the senior Department 10

official’s decision to the Secretary. Such appeal stays 11

the decision of the senior Department official until final 12

disposition of the appeal. If an agency wishes to appeal, 13

the agency must

-- 14

(1) Notify the Secretary and the senior Department 15

official in writing of its intent to appeal the decisi on no 16

later than ten days after receipt of the decision; 17

(2) Subm it its appeal to the Secretary in writing no 18

later than 30 days after receipt of the decision; and 19

(3) Provide the senior Department official with a 20

copy of the appeal at the same time it submits the appeal 21

to the Secretary. 22

(b) The senior Department of ficial may file a written 23

response to the appeal. To do so, the senior Department 24

official must

-- 25

(1) Submit a response to the Secretary no later than 26

30 days after receipt of a copy of the appeal; and 27

(2) Provide the agency with a copy of the seni or 28

Department official’s response at the same time it is 29

submitted to the Secretary. 30April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 32 (c) Neither the agency nor the senior Department 1

official may include in its submission any new evidence it 2

did not submit previously in the proceeding. 3

(d) On appeal, t he Secretary makes a recognition 4

decision

, as described in § 602.36( e ), except that any 5

required compliance report is due within 30 days after the 6

end of the period specified in the Secretary’s decision. 7

The Secretary renders a final decision after taking into 8

account the senior Department official’s decision, the 9

agency’s written submissions on appeal, the senior 10

Department official’s response to the appeal, if any, and 11

the entire record before the senior Department official. 12

The Secretary notifies the ag ency in writing of the 13

Secretary’s decision regarding the agency’s recognition. 14

(e) If the Secretary determines, based on the record, 15

that a decision to deny, limit, suspend or terminate an 16

agency’s recognition may be warranted based on a finding 17

that the agency is noncompliant with, or ineffective in its 18

performance with respect to, a criterion or criteria for 19

recognition not identified as an area of noncompliance 20

earlier in the proceedings, the Secretary, without further 21

consideration of the appeal, refe rs the matter to the 22

senior Department official for consideration of the issue 23

under § 602.36( f ). After the senior Department official 24

makes a decision, the agency may, if desired, appeal that 25

decision to the Secretary. 26

(f) If information regarding an ag ency, but not 27

contained in the record, comes to the Secretary’s attention 28

while a decision regarding the agency’s recognition is 29

pending before the Secretary, and if the Secretary 30

concludes the recognition decision should not be made 31April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 33 without consideration of the information, the Secretary 1

either

-- 2

(1)(i) Does not make a decision regarding recognition 3

of the agency; and 4

(ii) Refers the matter to Department staff for review 5

and analysis under §§ 602.32 or 602.33, as appropriate, and 6

review by the Advisory Co mmittee under § 602.34; and 7

consideration by the senior Department official under 8

§ 602.36; or 9

(2)(i) Provides a copy or summary of the information 10

to the agency and the senior Department official; 11

(ii) Permits the agency to respond to the Secretary 12

and th e senior Department official in writing, and to 13

include additional evidence relevant to the issue, and 14

specifies a deadline; 15

(iii) Provides the senior Department official with an 16

opportunity to respond in writing to the agency’s 17

submission under paragraph (ii), specifying a deadline; and 18

(iv) Issues a recognition decision based on all the 19

materi als described in paragraph s (d) and (f) of this 20

section

. 21

(g ) No agency may submit information to the senior 22

Department official, or ask others to submit informati on on 23

its behalf, for purposes of invoking paragraph (f). 24

(h) If the Secretary does not reach a final decision 25

on appeal to approve, deny, limit, suspend, or terminate an 26

agency’s recognition before the expiration of its 27

recognition period, the Secretary automatically e xtends the 28

recognition period until a final decision is reached. 29

30April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 34 **§ 602.38 Contesting the Secretary’s final decision to**  1

**deny, limit, suspend, or terminate an agency’s recognition.** 2

An agency may contest the Secretary’s decision under 3

this p art in the Federal courts as a final decision in 4

accordance with applicable Federal law. Unless otherwise 5

directed by the court, a decision of the Secretary to deny, 6

limit, suspend, or terminate the agency’s recognition is 7

not stayed during an appeal in t he Federal courts. 8

[ Note: subpart D is being removed]April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 35 Issue #9

Proposed Regulatory Language

Team III

– Accreditation

Origin: ED

Issue: Direct Assessment Program

Stat utory Cite : HEA section 481(b)(4)

Regulatory Cites : 34 CFR 602.3

Summary of Changes :

The Higher Education Act provides for eligible educational programs to include instructional programs that use direct assessment of a student’s learning, or recognize the direct assessment of a student’s learning by others, in lieu of measuring student learning in credit hours or clock hours. This language amends current accreditation regulations to provide for a definition of direct assessment program whic h mirrors the definition found in the student assistance general provisions and modifies the definition of “scope of recognition” to incorporate direct assessment programs, if applicable.

Change:

**§ 602.3 What definitions apply to this part?**

The follow ing definitions apply to this part.

* * *

**Direct assessment program means**  **an instructional**

**program that, in lieu of credit hours or clock hours as a**

**measure of student learning, utilizes direct assessment of**

**student learning, or recognizes the direct a ssessment of** 

**student learning by others.**

* * *

Scope of recognition or scope means the range of

accrediting activities for which the Secretary recognizes

an agency. The Secretary may place a limitation on the

scope of an agency’s recognition for titl e IV, HEAApril 21

- 23, 2009 meeting Prepared April 13, 2009 Page 36 purposes. **Except with respect to programs approved by the** 

**Secretary under 34 CFR 668.10, scope does not include** 

**accreditation or preaccreditation granted to or covering** 

**any program offered in whole or in part as a direct**

**assessment program**

**.** Th e Secretary’s designation of scope

defines the recognition granted according to

--

* * *April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 37 Issue #10

Proposed Regulatory Language

Team III

– Accreditation

Origin: HEOA

Issue: Distance education and correspon dence 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 602.03, 602.16, 602.17, 602.18, and 602.27

Summary of ch anges:

Amends current regulations regarding change of scope and agency standards to include references to distance education and correspondence education and to require processes to authenticate distance education and correspondence education students.

Changes:

NOTE: The changes in the scope of recognition definition in § 602.3 reflect the changes to the definition proposed in issue #9.

**§ 602.3 What definitions apply to this part?** 

The following definitions apply to this part:

* * *

Scope of re cognition or scope means the range of

accrediting activities for which the Secretary recognizes

an agency. The Secretary may place a limitation on the

scope of an agency’s recognition for t itle IV, HEA

purposes. Except with respect to programs approved b y the

Secretary under 34 CFR 668.10, scope does not include

accreditation or preaccreditation granted to or covering

any program offered in whole or in part as a direct

assessment program

**.** The Secretary’s designation of scope

defines the r ecognition grant ed according to

– -April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 38 * * *

(5) Coverage of accrediting activities related to

distance education or **correspondence education**

.

**§ 602.16 Accreditation and preaccreditation standards.**

* * * * *

(b) If the agency only accredits programs and does

not serve as an institutional accrediting agency for any of

those programs, its accreditation standards must address

the areas in paragraph (a)(1) of this section in terms of

the type and level of the program rather than in terms of

the institution.

**(c )**  **If the agency has or seeks to include within its**

**scope of recognition the evaluation of the quality of**

**institutions or programs offering distance education or**

**correspondence education, the agency’s standards must**

**effectively address the quality of an in stitution’s** 

**distance education or correspondence education in the areas**

**identified in paragraph**  **(a)(1). The agency is not required**

**to have separate standards for the evaluation of distance**

**education or correspondence education;**

**Reorder current (c) and ( d) as (d) and (e)** 

**§ 602.17 Application of standards in reaching an** 

**accrediting decision.**

* * * * *

**(g) Requires institutions that offer distance**

**education or correspondence education to have processes in**April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 39 **place through which the institution establis hes that the** 

**student who registers in a distance education or**

**correspondence education course or program is the same**

**student who participates in and completes the course or**

**program and receives the academic credit. The agency meets**

**this requirement if it** 

**--**

**(1) Requires institutions to verify the identity of a** 

**student who participates in class or coursework by using**

**such methods as**

**– -** 

**(i) A**  **secure login and pass code, randomly generated**

**personal questions, or proctored examinations; and**

**(ii) N**  **ew identif ication technologies**  **as they become**

**widely accepted ; and** 

**(2) Makes clear that institutions should not use or** 

**rely on technologies that interfere with student privacy.**

§ **602.18 Ensuring consistency in decision** 

**- making.** 

The agency must consistently app ly and enforce its

standards **that respect the stated mission of the** 

**institution, including religious missio n,**  **and that**  to

ensure that the education or training offered by an

institution or program, including any offered through

distance education **or corres pondence education**  , is of

sufficient quality to achieve its stated objective for the

duration of any accreditation or preaccreditation period

granted by the agency. The agency meets this requirement

if the agency

--

* * * * *April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 40 NOTE: The changes in §602.27 reflect the restructuring of the section presented in issue

#14.

**§ 602.27 Other information an agency must provide the**

**Department.**

**(a)** The agency must submit to the Department

--

(a) **(1)** A copy of any annual report it prepares;

(b) **(2)** A copy , updated ann ually, of its directory

of accredited and preaccredited institutions and programs.

(c) **(3)** A summary of the agency’s major accrediting

activities during the previous year (an annual data

summary), if requested by the Secretary to carry out the

Secretary’s res ponsibilities related to this part;

(d) **(4 )**  Any proposed change in the agency’s

policies, procedures, or accreditation or preacccreditation

standards that might alter its

--

(i) Scope of recognition

**, except as provided in** 

**paragraph (5)**  **;** or

(ii) Complia nce with the criteria for recognition;

(5) **Notification that the agency is expanding its**

**scope of recognition to include distance education or**

**correspondence education, as applicable. Such an expansion**

**of scope is effective on the date the Department re ceives** 

**the notification.**

* * * * *April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 41 Issues #11 and # 12

Proposed Regulatory Language

Team III

- Accreditation

Origin: HEOA and ED

Issue: Monitoring of Institutions and Programs Throughout Period; Operating Procedure

– Growth Monitoring

Statutory Cite : Section 496(c)(1), (c)(2), (q)

Regulatory Cite : 34 CFR 602.19

Summary of Change s :

Modifies current regulations to incorporate changes put forward in HEOA regarding an agency’s need to m onitor enrollment growth at its accredited institutions after a change of scope to include distance education or correspondence education is effected by means of notice to the Secretary; and those programs at institutions experiencing significant growth. The proposed amendments also incorporate more specificity in terms of what an agency should be monitoring and the frequency of that monitoring.

Change s :

**§ 602.19 Monitoring and reevaluation of accredited**

**institutions and programs.**

* * * * *

(b) The agency must monitor institutions or programs

throughout their accreditation or preaccreditation period

**by requiring periodic reports and** to ensure that they

remain in compliance with the agency's standards. This

includes conducting special evaluations or site visits, as

necessary.

**(c) The agency must monitor the growth of programs at** 

**institutions experiencing significant enrollment growth, as**

**reasonably defined by the agency.** 

**(d) The agency must monitor overall growth of the** 

**institutions it accredi ts and** 

**, no less frequently than** April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 42 **annually**

**, collect headcount enrollment data from those** 

**institutions.**

**(e) For the purposes of determining the need for** 

**agency review of the status of the institution or program,**

**the agency must regularly collect and analyze key data and** 

**performance indicators. These may include but are not** 

**limited to**

**--**

**(1) Financial audits or other financial information;** 

**(2) Retention rates, completion or graduation rates** 

**,**
**and job placement rates; and**

**(3) State lice**  **nsing examination p ass rates or**  **other**

**measures of student success.** 

**(f) Any agency that has notified the Secretary of a** 

**change in its scope in accordance with §**  **602.27 (a)**  **(5) must** 

**monitor the headcount**  **enrollment of each institution it has**

**accredited that offers distance edu cation or correspondence** 

**education. If the institution has experienced an increase**

**in headcount**  **enrollment of fifty percent or more within one**

**institution al fiscal year, the agency must**  **report that**

**information to the Secretary within 30 days of acquiring**

**such data**

**.**
**(g) The agency must demonstrate it has, and**

**effectively applies, a set of monitoring and reevaluation**

**approaches that enables the agency to identify potential**

**problems with an institution’s or program’s continued**

**compliance with agency standard s and that takes into** 

**account institutional or program strengths and stability.**

**This provision does not require institutions or programs to**

**provide annual reports on each specific accreditation**

**criterion.**April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 43 Issue # 13

Proposed Regulatory Language

Team III

- Accreditation

Origin: ED

Issue: Substantive Change

Statutory Cites : HEA section 496(a)(1), (a)(4), (c)(1), (c)(2), (c)(4), (c)(5), 498(i)

Regulatory Cite : 34 CFR 602.22

Summary of Change s :

Amends the descriptions of substantive chang e to include a change in scope of existing offerings rather than a change in content and a change in the level of program offerings in any direction, and adds three new types of changes. The additions include the contracting out of more than 25 percent of a program to organizations not eligible to participate in the

title IV student financial aid programs ; the establishment of a permanent additional

location at a site previously operated by another institution at which the institution provided a teach

- out; and the acquisition of an institution or program or location of another institution. Requires the agency ’s substantive change policy to list those changes suff icient to require a comprehensive review and provides greater flexibility to agencies in preap proving multiple locations. Finally, insures that if substantive changes are approved, they are effective going forward as part of the institution’s accreditation.

Change s :

**§ 602.22**  **Substantive change**

**.**

(a) * * *

(2) The agency’s definition of a su bstantive change

includes at least the following types of change:

* * *

(iii) The addition of courses or programs that

represent a significant departure **from the academic content**

**of existing offerings of educational programs** in either

content or method of delivery

, from those that were offered

when the agency last evaluated the institution.April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 44 (iv) The addition of courses or programs at a degree

or credential level **different from** above that which is

included in the institution's current accreditation or

pr eaccreditation.

* * *

(vii) The establishment of an additional location

geographically apart from the main campus at which the

institution offers at least 50 percent of an educational

program.

**(vii) If the agency’s accreditation of an institution** 

**enabl es the institution to seek eligibility to participate** 

**in title IV HEA programs**

**, the entering into a contract** 

**under which an institution or organization not certified to**

**participat e in the title IV**  **programs offers more than 25**

**percent of one or more of the accredited institution’s** 

**educational programs.**

**(vii) (viii)**  **(A) If**  **the agency’s accreditation of an**

**institution enables it to seek eligibility to participate**

**in title IV HEA programs, t** he establishment of an

additional location geographically apart from th e main

campus at which the institution offers at least 50 percent

of an educational program. **An addition of such a location**

**must be approved by the agency in accordance with paragraph**

**(c) of this section unless the accrediting agency** 

**determines, and issue s a**  **written determination stating that** 

**the institution has**

**--**

**( 1**  **) S**  **uccessfully completed at least one cycle of**

**accreditation of maximum length offered by the agency and**

**one renewal, or has been accredited for at least ten years;**April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 45 **( 2**  **) A**  **t least three additi onal locations that the** 

**agency has approved; and**

**( 3**  **) M**  **et criteria established by the agency indicating**

**sufficient capacity to add additional locations without**

**individual prior approvals**

**, including at a minimum** 

**satisfactory evidence of a system to ensure q uality across** 

**a distri buted enterprise that includes** 

**--**

**( i**  **) Clearly identified academic control;** 

**( ii**  **) Regular evaluation of the locations;** 

**( iii**  **) Adequate faculty, facilities, resources, and** 

**academic and student support systems;**

**( iv**  **) Financial stability**  **; and**

**( v**  **) Long** 

**- range planning for expansion.** 

**(B) The agency’s procedures for approval of multiple** 

**locations, pursuant to (viii)(A), must require timely** 

**reporting to the agency of every additional location**

**established under this approval.**

**( C)**  **Each agen cy determination or redetermination to** 

**preapprove the addition of multiple locations under**

**(viii) (A) must be of limited duration**  **and may not exceed**

**five years.**

**(D) The agency may not preapprove an institution’s** 

**addition of multiple locations under (viii )(A) after the** 

**institution undergoes a change in ownership resulting in a**

**change in control as defined in 34 CFR 600.31 until the**

**institution demonstrates that it meets the conditions for** 

**the agency to preapprove multiple locations described in**

**this paragr aph.** 

**(ix) The acquisition of any other institution or any** 

**program or location of another institution.**April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 46 **(x) The addition**  **of a permanent location at a s ite at** 

**which the institution is conducting a teach**

**- out for** 

**students of another institution that has ceas ed operating** 

**before all students have completed their program of study.**

**(3) The agency’s substantive change policy must** 

**define when the changes made or proposed by an institution** 

**are or would be sufficiently extensive to require the**

**agency to conduct a new comprehensive evaluation of**  **th at** 

**institution.**

(b) The agency may determine the procedures it uses

to grant prior approval of the substantive change.

**However, these procedures must specify a prospective**

**effective date on which the change is included i n the** 

**program’s or institution’s accreditation. An agency may**

**designate the date of a change in ownership as the**

**effective date of its approval of that substantive change**

**if the accreditation decision is made within 30 days of the**

**change in ownership.** Ex cept as provided in paragraph (c)

of this section, **the agency’s procedures for approval of**

**multiple locations** these may, but need not, require a visit

by the agency.

(c) If the agency's accreditation of an institution

enables the institution to seek eligi bility to participate

in t itle IV, HEA programs, the agency's procedures for the

approval of an additional location described in paragraph

(a)( 2)( vii )(viii) of this section must **provide for a**

**determination** determine if **of** the institution **’s** has the

fiscal a nd administrative capacity to operate the

additional location. In addition, the a gency's procedures

must include

--

* * *April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 47 (2) An effective mechanism for conducting, at

reasonable intervals, visits to **a representative sample of**

additional locations of ins titutions that operate more than

three additional locations; and

* * * * *April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 48 Issue #14

Proposed Regulatory Language

Team III

- Accreditation

Origin: ED

Issue: Record Keeping and Confidentiality

Statutory Cites : HEA sections 496(a)(1), (a)(7 ), (a)(8), (c)(7), (c)(8), (c)(9), (n) and (o)

Regulatory Cites : 34 CFR 602.15 (b), 602.27(f), and 602.31 (g)

Summary of Changes:

Amends current regulations to address the need for accurate and timely record keeping as required in the HEA while reducing the burden on accrediting agencies, and to insure the claims of confidentiality of records provided to the Department are clear and

understandable and in accordance with statute.

Changes:

**§ 602.15**  **Administrative and fiscal responsibilities.**

* * * * *

(b) The agency maintains complete and accurate

records of

--

(1) Its last two full accreditation or

preaccreditation review s of each institution or program,

including on

- site evaluation team reports, the

institution's or program's responses to on

- site reports,

periodic review reports, any reports of special reviews

conducted by the agency between regular reviews, and a copy

of the institution's or program's most recent self

- study;

and

(2) All decisions **made throughout an institution’s or**

**pr ogram’s affiliation with the agency**  regarding the

accreditation and preaccreditation of any institution orApril 21

- 23, 2009 meeting Prepared April 13, 2009 Page 49 program **and substantive changes** , including all

correspondence that is significantly related to those

decisions.

* * * * *

**§ 602.27**  **Other informa tion an agency must provide the** 

**Department.**

**(a)** The agency must submit to the Department

--

(a) **(1)** A copy of any annual report it prepares;

(b) **(2)** A copy, updated annually, of its directory

of accredited and preaccredited institutions and programs;

( c **) (3)**  A summary of the agency's major accrediting

activities during the previous year (an annual data

summary), if requested by the Secretary to carry out the

Secretary's responsibilities related to this part;

(d) **(4)** Any proposed change in the agency's

policies, procedures, or accreditation or preaccreditation

standards that might alter its

--

(1) **(i)** Scope of recognition; or

(2) **(ii)** Compliance with the criteria for

recognition;

[NOTE: The addition of (5) below reflects a change made in issue #10 and conforms with the restructure of §602.27]

**(5) Notification that the agency has expanded its** 

**scope of recognition to include distance education or**

**correspondence education, as applicable;**

(e) ( **6** ) The name of any institution or program it

accredits tha t the agency has reason to believe is failing

to meet its t itle IV, HEA program responsibilities or isApril 21

- 23, 2009 meeting Prepared April 13, 2009 Page 50 engaged in fraud or abuse, along with the agency's reasons

for concern about the institution or program; and

(f **) (7)**  If the Secretary requests, informati on that

may bear upon an accredited or preaccredited institution's

compliance with its t itle IV, HEA program responsibilities,

including the eligibility of the institution or program to

participate in t itle IV, HEA programs. The Secretary may

ask for this information to assist the Department in

resolving problems with the institution's participation in

the Title IV, HEA programs.

**(b) An agency must**  **not establish or maintain a policy**

**of providing notification to an institution of the agency’s**

**contact with t he Department under paragraphs (a)**  **(6) or** 

**(a )**  **(7 ).**  **The agency must comply with a request from the** 

**Department to consider such contact confidential.**

* * * * *

**§ 602.31(g)**  **Agency s**  **ubmissions to the Department.**

[ NOTE : this section reflects th e restructur ing in issue s # 7 and # 8.]

* * * * *

( f ) **Public availability of agency records to the**

**Department**

.

(1) The Secretary **’s processing and decision making on**

**requests for public disclosure of agenc y material reviewed** 

**under this p art are governed by the F**  **reedom of Information**

**Act, 5 U.S.C. §552; the Trade Secrets Act, 18. U.S.C §1905;**

**the Privacy Act of 1974, as amended 5 U.S.C. §552a;**  **the**

**Federal Advisory Committee Act, 5 U.S.C. Appdx. 1;**  **and all**

**other applicable laws.** does not make available to theApril 21

- 23, 2009 meeting Prepared April 13, 2009 Page 51 publi c any confidential agency materials a Department

employee reviews during the evaluation of either the

agency's application for recognition or the agency's

compliance with the criteria for recognition

. **In**

**recognition proceedings, a gencies must** 

**--**

**(i) Redact**  **information that would identify**

**individuals or institutions that is not essential to the**

**Department’s review of the agency;**

**(ii) Make a good faith effort to designate all** 

**business information within agency submissions that the**

**agency believes would be e xempt from disclosure under** 

**exemption 4 of the Freedom of Inform ation Act (FOIA), 5** 

**U.S.C. §552 (b)(4). A blanket designation of all** 

**information contained within a submis sion**  **or of a category**

**of documents as meeting this exemption will not be**

**considered a good** 

**- faith effort**  **and will be disregarded ;** 

**(iii) Identify any other material the agency believes** 

**would be exempt from public disclosure under FOIA, the**

**factual basis for the request**

**, and any legal basis the** 

**agency has identified for withholding the docum ent from** 

**disclosure; and**

**(iv) Ensure documents submitted are only those** 

**required for Department review or as requested by**

**Department officials.**

**(2) The Secretary processes FOIA requ**  **ests in**

**accordance with 34 CFR p art 5 and makes all documents** 

**provided to the National Advisory Committee on** 

**Institutional Quality and Integrity available to the**

**public.**April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 52 Issue #15

Proposed Regulatory Language

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

Regulato ry cites: 34 CFR 602.18, 602.23(a) and 602.25

Summary of changes:

Modifies current regulations regarding consistency in decision

- making and due process to include (1) clear standards for accreditation, and (2) expanded due process requir ements.

Changes:

**§ 602.18 Ensuring consistency in decision**

**- making** 

**.**
The agency must consistently apply and enforce its

standards **that respect the stated mission of the** 

**institution, including religious mission , and that**  to

ensure that the education or t raining offered by an

institution or program, including any offered through

distance education, **or correspondence education,** is of

sufficient quality to achieve its stated objective for the

duration of any accreditation or preaccreditation period

granted b y the agency. The agency meets this requirement

if the agency

--

**(a) Has written specification of the requirements for** 

**accreditation and preaccreditation that include clear**

**standards for an institution or program to be accredited;**

**(a) (b)**  Has effective controls a gainst the

inconsistent application of the agency’s standards;April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 53 **(b) (c)**  Bases decisions regarding accreditation and

preaccreditation on the agency’s published standards; and

(c) **(d)** Has a reasonable basis for determining that

the information the agency reli es on for making accrediting

decisions is accurate.

**(e) Provides the institution or program with a** 

**detailed written report that assesses the institution’s or**

**program’s compliance with the agency’s standards, including**

**any deficiencies identified by the a gency.** 

**§ 602.23 Operating procedures all agencies must have**

**.**

(a) The agency must maintain and make available to

the public

**, upon**  **request ,**  written materials describing

--

(1) Each type of accreditation and preaccreditation

it grants;

(2) The procedure s that institutions or programs must

follow in applying for accreditation or preaccreditation;

(3) The standards and procedures it uses to deter mine

whether to grant, reaffirm, reinstate, restrict, deny,

revoke, terminate, or take any other action relate d to each

type of accred itation and preaccreditation that the agency

grants;

(4) The institutions and programs that the agency

currently accredits or preaccredits and, for each

institution and program, the year the agency will next

review or reconsider i t for accreditation or

preaccreditation; and

(5) The names, academic and professional

qualifications, and relevant employment and organizational

affiliations of

--April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 54 (i) The members of the agency's policy and decision

making bodies; and

(ii) The agency's p rincipal administrative staff.

* * * * *

(c) The accrediting agency must

--

(1) Review in a timely, fair, and equitable manner

any complaint it receives against an accredited institution

or program that is related to the agency's stan dards or

procedu res. **The agency may**  **not complete its review and**

**make a decision regarding a complaint unless, in accordance**

**with published procedures, it ensures that the institution**

**or program has sufficient opportunity to provide a response**

**to the complaint**

**.**

* * * * *

**§ 602.25 Due process**

**.**
The agency must demonstrate that the procedures it

uses throughout the accrediting process satisfy due

process. The agency meets this requirement if the agency

does the following:

**(a) Provides adequate written specification of its** 

**requirements, including clear standards, for an institution**

**or program to be accredited or preaccredited ;** 

(a) The agency uses **(b) Uses**  procedures that afford

an institution or program a reasonable period of time to

comply with the agency’s requests for i nforma tion and

documents.

**(c) Provides written specification of any** 

**deficiencies identified at the institution or program**

**examine d** 

**.**April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 55 **(d) Provides sufficient opportunity for a written** 

**response by an institution or program regarding any**

**deficiencies identified by the agency, to be considered by** 

**the agency within a timefram e determined by the agency, and** 

**before any adverse action is taken.**

(b) **(e)** The agency n **N** otifies the institution or

program in writing of any adverse accrediting action or an

action to place t he institution or program on probation or

show cause. The notice describes the basis for the action.

(c) The agency permits the institution or program the

opportunity to appeal an adverse action and the right to be

represented by counsel during that appea l. If the agency

allows institutions or programs the right to appeal other

types of actions, the agency has the discretion to limit

the appeal to a written appeal.

**(f) Provides an opportunity, upon written request of** 

**an institution or program, for the in stitution or program** 

**to appeal any adverse action, orally or in writing, at the**

**option of the institution, prior to the action becoming**

**final.**

**(1) The appeal must take place at a heari**  **ng before an**

**appeals panel that**

**--**

**(i) May**  **not include current members of the agency’s** 

**decision**

**- making**  **body that took the initial adverse action.**

**(ii) Is subject to a conflict of interest policy.** 

**(2) The agency must recognize the right of the** 

**institution or program to employ counsel to represent the**

**institution or program during its appeal, including to make** 

**any presentation, oral ly**  **or in writing, at the option of** 

**the institution, that the agency permits the institution or** 

**program to make on its own during the appeal.**April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 56 **(3) The agency must provide for a process, in** 

**accordanc e with written procedures, through which an** 

**institution or program may seek review of new financial**

**information if all of**  **t he following conditions are met**  **:**

**(i) T**  **he financial information was unavailable to the**

**institution or program prior to the determinat**  **ion described**

**under paragraph (e)**

**.**

**(ii) The financial information provided bears** 

**materially on the financial defici encies identified by the** 

**agency.**

**(iii) The financial information meets the criteria of** 

**significance and materi ality, as defined by the age**  **ncy.**

**( iv**  **) In the absence of such new financial** 

**information, the appeals panel would affirm a final adverse**

**action based solely upon the institution’s or program’s**

**failure to meet a n**  **agency standard pertaining to finances.**

**(4) Any determination by the ag**  **ency made with respect**

**to the new financial information described in paragraph**  **(3)**

**is not separately appealable by the institution or program.**

**(d) (g)**  The agency notifies the institution or program

in writing of the result of its appeal and the basis for

t hat result.April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 57 Issu e #16

Proposed Regulatory Language

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 cite: 34 CFR 602.26

Summary of change:

Amends current regulations on information made available to the Department, State licensing or authorizing authorities and the public.

Cha nge:

**§ 602.26 Notification of accrediting decisions** 

.

* * * * *

(b) Provides written notice of the following types of

decisions to the Secretary, the appropriate State licensing

or authorizing agency, and the appropriate accrediting

agencies at the s ame time it notifies the institution or

program of the decision, but no later than 30 days after it

reaches the decision:

(1) A final decision to place an institution or

program on probation or an equivalent status.

(2) A final decision to deny, withdraw , suspend,

revoke , or terminate the accreditation or preaccreditation

of an institution or program

.

**(3) A final decision to take any other adverse action** 

**not listed in paragraph**  **(b)(2)** ;April 21

- 23, 2009 meeting Prepared April 13, 2009 Page 58 (c) Provides written notice to the public of the

decisions listed i n paragraphs (b)(1)

**,** and (b)(2)

**, and** 

**(b)( 3)**  of this section within 24 hours of its notice to the

institution or program

(d) For any decision listed in paragraph (b)(2) of

this section , makes available to the Secretary, the

appropriate State licensing or authorizing agency, and the

public upon request , no later than 60 days after the

decision, a brief statement summarizing the reasons for the

agency's decision and the **official** comments

, if any, that

the affected institution or program may wish to make wit h

regard to that decision

**, or evidence that the affected** 

**institution has been offered the opportunity to comment ;**