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2024 Negotiated Rulemaking Program Integrity and Institutional Quality

From: Jamienne S. Studley, Negotiator for Institutional Accrediting Agencies 

 Michale McComis, Alternate Negotiator for Institutional Accrediting Agencies

 Laura Rasar King, Negotiator for Programmatic Accrediting Agencies

 Jo Alice Blondin, Negotiator for Two-Year Institutions of Higher Education 

 Michael Cioce, Alternate Negotiator for Two-Year Institutions of Higher Education

 Charles Prince, Negotiator for HBCUs, MSIs and Tribal Institutions 

 Scott Dolan, Negotiator for Private Non-Profit Institutions

 Jillian Klein, Negotiator for Proprietary Institutions

 David Cohen, Alternate Negotiator for Proprietary Institutions 

 Jason Lorgan, Negotiator for Public Four-Year Institutions

 Alyssa Dobson, Alternate Negotiator for Four-Year Institutions 

 Robert Anderson, Alternate Negotiator for State Officials

 Erika Linden, Negotiator for Private Nonprofit Institutions

 Scott Dolan, Alternate Negotiator for Private Nonprofit Institutions

 

To: Program Integrity and Institutional Quality Committee

Date: February 14, 2023

Re: Accreditation Provisions

Tracking Legend:

RED: ED proposed language from First Session

Yellow: New ED language prior to Second Session

Green: Proposed accreditor alternative language following second session 

 

600.3 Definition of Public Member 

Rationale: The important shared goal is that public commission members have meaningful 

experience and perspectives from fields other than higher education. The change to a five year 

separation is a positive revision to assure this objective while not unreasonably constricting the 

universe of potential volunteers. 

The application to grandchildren and many step-level connections is overbroad. Experience by 

these people in higher education roles, potentially quite modest ones, are not relevant enough 

to undermine a person’s own experience in capacities outside the field (e.g., a legal services 

lawyer would still bring their public perspective even if a sibling’s spouse teaches or does 

graphic design at an institution of higher education). These restrictions are not necessary to 

protect against actual conflicts of interest. All agencies have conflict of interest rules that all 

commissioners must follow and ED monitors (602.23). It is those rules that would guard against 

any commissioner acting on an institution or issue as to which they had a conflict or appearance 

of conflict. 
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§ 602.3 What definitions apply to this part? 

* * *

Representative of the public means a person who is currently not, or during the prior five 

years was not, is not-- 

(1) An A current or former employee, member of the governing board, owner, or 

shareholder of, or consultant to, an institution or program that either is accredited or 

preaccredited by the agency or has applied for accreditation or preaccreditation; 

(2) A membercurrent or former member, employee, or representative of any trade 

association or membership organization related to, affiliated with, or associated with the 

agency; or or of an institution or program that either is accredited or preaccredited by the 

agency or has applied for accreditation or preaccreditation; 

(3) An current or former employee of or consultant to the agency; 

(4)(3) An current or former employee of a member of the program integrity triad (the 

Department of Education; State higher education agencies or other officials or 

representatives of the State; and accrediting agencies); or 

(5) A spouse, parent, child, or sibling of an individual identified in paragraph (1) or), (2)), 

(3), or (4) of this definition. 

(5) A person who served in a capacity covered by paragraphs (1), (2), (3) or (4) of this 

definition in the past five years; or 

(6) The spouse, parent, child or sibling of an individual identified in paragraphs (1), (2), 

(3) or (4) of this definition 

602.15 Administrative and Fiscal Responsibilities 

Rationale: Technology is a reasonable area of capacity to include specifically. The word “data’ 

should be dropped. Consideration of data, metrics, quality and use is covered elsewhere under 

such concepts as assessment capacity and student achievement measures, and including it 

here is potentially duplicative and confusing here, and could burden the department with 

excessive documentation. 

(a) The agency has— 

(1) Adequate administrative staff, data and technology infrastructure, and financial 

resources to carry out its accrediting responsibilities; 

602.16 Accreditation and Preaccreditation Standards

Rationale: Section 496(o) of HEA prohibits ED from “promulgating any regulation with respect 

to the standards of an accreditation agency” (a)(5). The proposed rules attempt to regulate with 

respect to the core standards of accrediting agencies. 
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ED has wisely rejected bright lines, a conclusion consistent with both the HEA and good 

accreditation practice. Accreditors are developing and deploying outcome data, including 

disaggregated data, and using it in accreditation reviews for accountability purposes by

attaching consequences to weak performance, and to promote improvement. The word 

“enforce” should be deleted from any version of this provision because it is dangerously close to 

creating bright lines. 

Recent NACIQI inquiries what outcomes does the agency look at? How does the agency 

determine the metrics it uses? When and how does it follow up on performance? The most 

valuable way the Department can support the effective use of performance measures is to 

expedite its admirable plans to increase the availability of timely, complete (for students beyond 

only those aided under Title IV), well supported data. 

Clear expectations for performance should apply to student achievement and not to the rest of 

602.16(ii)-(x). These sections are not amenable to performance metrics taken one by one. 

Quality is reviewed by accrediting agencies and expert peer reviewers. Beyond that topic by 

topic review, these dimensions are best understood comprehensively in the degree to which 

they do or do not contribute to institutional or program outcomes for student achievement. Most 

significantly, specifying criteria for each of them separately would take accreditation backward to 

a time of inputs, reducing the positive emphasis on outcomes that ED and accrediting agencies 

agree on. placed in how the elements of an instit or program work together to generate student 

success. 

Current language for comparison: 

(1) The agency's accreditation standards must set forth clear minimum expectations of 

performance that the agency must verify and enforce for the institution or program it 

accredits, including by using, where appropriate, consistent and reliable data, which may 

include Federal data. The accreditation standards must set forth minimum expectations 

in the following areas:

Alternative: 

(a)(1)(i) The agency sets forth and monitors clear performance expectations with respect 

to student achievement in relation to the institution's mission, which may include different 

expectations applicable to different standards for different institutions or programs, as 

established by the institution, including, as appropriate, consideration of State licensing 

examinations, course completion, and job placement rates. Student achievement 

expectations and student performance expectation shall be based on valid and reliable 

data, which may include Federal data to the extent appropriate and available. 

Note: This language applies only to (i), “student success” and not the other standards 

(ii)-(x), as proposed by ED. 

602.20 Enforcement of Standards 

Rationale: To date there has not been a limit on good cause extensions. Some agencies have 

set durations for extensions, and two years is commonly chosen maximum period. We suggest 

that two years be adopted as the allowable extension period. It is worth noting that an institution 

would have to carry out its improvements and report on them during the one year period, and 
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agencies may be expected or attempt to also complete the compliance review. The effect would 

be that a one year extension period would actually allow far less than a year to plan and carry 

out improvements and report on compliance. 

The alternative language for (5) simply makes the point more directly. The purpose of the 

reference to ‘sole discretion of the agency’ is not apparent and should be deleted. 

DATA REQUEST: In response to the assertion that institutions continue to be accredited “for 

too long,” we ask ED: 

1) To provide information on the time from institutions being placed on sanction or 

adverse action to either being found in compliance or accreditation withdrawn. 

2) Federal rules require that an institution remain accredited while an agency sanction 

or adverse action is under review or on appeal. Does ED have information about how 

long that has extended accreditation while those processes are concluded? 

A suggestion was made to insert the notion of “predominant program” length to the maximum 

period of extension. This would introduce ambiguity and variation, requiring in some cases a 

complicated calculation that could shift every time an institution added or dropped one or more 

programs, creating constantly changing institution-specific time horizons in order to address a

vague, speculative issue. Note that the period of extension is a maximum – the agency is 

always responsible for determining the appropriate period and can allow less than the 

maximum. 

Alternative: (Language in red proposed by ED in 1st meeting)

(b) Notwithstanding paragraph (a) of this section, the agency must have a policy for 

taking an immediate adverse action, and take such action, when the agency has 

determined that such action is warranted. 

(1) Immediately initiate (when the agency has determined that such action is 

warranted), adverse action against the institution or program; or 

(c) If the institution or program does not bring itself into compliance within the specified 

period, the agency must take immediate adverse action unless the agency, for good 

cause, extends the period for achieving compliance for a maximum of two additional 

years. 

..... 

(h) Nothing in this part prohibits an agency from permitting the institution or program to 

be out of compliance with one or more of its standards, policies, and procedures 

adopted in satisfaction of §§ 602.16, 602.17, 602.19, 602.22, and 602.24 for a period of 

time, as determined by the agency annually, not to exceed three years unless the 

agency determines there is good cause to extend the period of time, and if— 

...(5) An institution out of compliance as described in paragraphs (a) and (b) of 

this section is not permittedentitled to the extension provided for in this 

paragraph (h) unless the special circumstances described in this paragraph 

constitute a new and independent cause for the noncompliance, and such 

extension is provided at the sole discretion of the agency. 
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Alternative: 

(5) An extension under this provision can only be granted by the agency if the 

special circumstances constitute a new cause for the non-compliance.

 

Sec. 602.22 Substantive Change

1. Written Arrangements - 

Rationale: Institutions are responsible for compliance and outcomes for all educational 

activities carried out under their accreditation. The institution should be responsible for 

demonstrating the capacity and quality of the entity providing education components 

within its program, subject to scrutiny and oversight by the agency. 

Current ED Proposal:

(a)(1)N)(M) Entering into a written arrangement under 34 C.F.R. § 668.5 under which an 

institution or organization not certified to participate in the title IV, HEA programs offers 

more than 25 and up to 50 percent of one or more of the accredited institution's 

institutional programs. The agency’s evaluation of a written arrangement must be based 

on the agency’s standards for executing a written arrangement with an ineligible 

institution or organization. At a minimum, those standards must include an assessment 

of the ineligible institution’s or organization’s administrative and financial capacity and 

expertise to deliver the portion of the program provided under the arrangement.;

 

Alternative: 

(M) Entering into a written arrangement under 34 C.F.R. § 668.5 under which an 

institution or organization not certified to participate in the title IV, HEA programs offers 

more than 25 and up to 50 percent of one or more of the accredited institution's 

educational programs. The agency’s evaluation of a written arrangement must be based 

on the agency’s requirements for executing a written arrangement with an ineligible 

institution or organization. Those requirements must include— 

(i) A demonstration by the accredited institution that the ineligible institution or 

organization has sufficient capacity and expertise to deliver the portion of the 

program provided under the arrangement and

(ii) A requirement that the accredited institution retains the responsibility for the 

educational outcomes and compliance with the accrediting agency’s standards 

and appropriate protection for enrolled students irrespective of any such 

arrangement. 

Rationale: Agencies consider the accreditation history, financial situation, and relevant 

issues in reviewing substantive change proposal. If this additional notification to the 

Secretary is to have value it should address situations worthy of that level of effort and 

opportunity for department review. The inclusion of provisionally certified institutions is 

overbroad (see sec. 668.13 (certification procedures for institutions), the term “negative 

action” is undefined, and a three-year look back is too long. 
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ED’s additional language is not necessary as accreditors currently go through these 

steps, and ED reviews our decisions. While it would be better to delete this entirely, if 

kept, we propose the following language to focus the requirement: 

(b) If the agency approves a substantive change for an institution that is on probation or 

equivalent status, has been subject to a negative action by the agency over the prior three 

academic years, or that is provisionally certified by the Secretary pursuant to one or more of the 

reasons set forth in under34 C.F.R. § 668.13(c)(1)(i)(C)-(iii), the agency must notify the Secretary 

within 30 days of its approval of the substantive change. With its notification, it must provide an 

explanation for the agency’s basis for concluding that the substantive change is approvable. for 

why it approved the change, consistent with its standards, and describe the agency's analysis of 

any risks that the substantive change might pose, including as a result of the institution's status 

under probation or equivalent status, negative action, or provisional certification.

2. Site visits 

Rationale: The value and choice of sites to visit should be determined by the agency, using 

risk-based approaches designed to assure sufficient review and compliance with standards. 

Many of the issued listed in the ED draft can be or indeed must be reviewed at the 

institutional level, such as financial resources, faculty role in governance, curriculum, long 

term planning. Agencies have authority to and do schedule additional or unannounced visits 

as needed to respond to general considerations for an institution or specific issues involving 

particular locations. The reasonableness of the sample design is a subject for ED review of 

the agency. 

Alternative: 

(c) The agency must have an effective risk-based mechanism reflecting factors such as 

compliance history, financial health, location-specific issues, outcomes or complaints, 

and other relevant factors for conducting, at reasonable intervals, visits to a 

representative sample of additional physical locations approved under paragraphs 

(a)(1)(ii)(KH) and branch campuses approved under paragraph (a)(1)(ii)(LI) of this 

section, 

 

Sec. 602.23 Operating Procedures All Agencies Must Have

1. Posting petition on agency site: 

Alternative (in green):

(b) The agency must post all materials included with an application for initial recognition, 

or in the case of an agency seeking renewal post the agency’s petition for renewal of 

recognition or its compliance report, with any redactions consistent with § 602.30(f)(1) 

and (2), on its website no later than 60 90days after submission to the Department. The 

agency may redact information that the agency is required to designate under ş

602.30(f)(1)(iii) from the materials before posting them on its website.

2. Complaints 

Rationale: Agencies handle complaints from student, faculty, staff, and trustees. 

Complaint policies and practices have been revised and improved recently by many 
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agencies. Best practice focuses on clarity and simplicity about submission, and securing 

sufficient information to investigate the matter. 

Five years for complaint submission is both too long – it is preferable to receive 

complaints as soon as reasonably possible so that the situation can be remedied or noncompliance identified and dealt with – and potentially too short, if the complainant could 

not have known of the facts that gave rise to the complaint. The alternative language 

would provide for a basic period of three years while at the same time assuring that the 

period required for institutional processing did not eat into the time to file a complaint and 

also permits filing at any time that the individual learned of the facts giving rise to the 

complaint. 

A suggestion made during negotiation that the period be the same as the period of 

reaffirmation would be problematic. Some agencies affirm institutions for differing 

periods of time (e.g., 6, 8 or 10 years) which would have the anomalous effect of making 

the complaint period shorter for schools accredited for the shorter period; this would also 

be confusing for processing. 

The language “otherwise observed” should not be included in the complaints section. 

Agencies are required to and do pursue information from all sources that warrant follow 

up into an institution’s compliance with its standards, but they should not be treated as 

complaints for procedural purposes. 

Time period 

Alternative:

(d)(1)(ii) Acceptance of complaints submitted within three five years after the date 

of the incident detailed in the complaint; , , the completion of the processing or 

determination of the complaint by the institution, or the time that the complainant 

learned of the facts giving rise to the complaint

3. Third-party comments when switching accreditor: 

Rationale: ED’s proposed language on third-party comments here is redundant. 

Agencies already have authority to accept comments on agency actions and to provide 

for methods such as hearings to receive them.

Alternative: (Delete ED’s proposed language)

(2) in considering an application of an institution that is changing accrediting 

agencies as a result of State legislation compelling the change, the agency must 

provide an opportunity for third-party comments, including from the public and the 

institution’s faculty, staff, and students. At the agency’s discretion, third-party 

comment may be received in writing, at a public hearing, or both.
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602.24 Additional Procedures Certain Institutional Agencies Must Have

1. Teach Outs: 

Rationale: Teach out plans and agreements should be required when they are needed to 

protect students in the planned, likely or possible situation of closure of the school or 

program. Agencies are required to secure teach out plans when a probation or show cause 

is imposed, in the case of a warning if warranted given the basis for the warning, and in all 

other cases [if there is plan or risk of closure -- best way to say this?]. nd the triggers beyond 

current requirements—but not require all institutions to have a teach out.

 

Alternative: (c) Teach-out plans and agreements. 

(1) The agency must require an institution it accredits to submit a teach-out plan, as 

defined in 34 CFR 600.2, to the agency for approval upon submitting an application for

of initial or renewal of accreditation.

(2) The agency must require an institution it accredits to submit a teach-out plan, as 

defined in 34 CFR 600.2, to the agency,l or l update its teach-out plan to the agency for 

approval upon the occurrence of any of the following events and annually until the issue 

has been resolved: 

(i) For a nonprofit or proprietary institution, the Secretary notifies the agency of a 

determination by the institution's independent auditor expressing doubt about the 

institution's ability to operate as a going concern or indicating an adverse opinion 

or a finding of material weakness related to financial stability. 

(ii) The agency acts to place the institution on probation or equivalent status or 

takes any other formal action against the institution related to its financial health.

(iii) The Secretary notifies the agency that - 

(A) the institution’s participation in is participating in title IV, HEA 

programs has changed from full to provisional certification pursuant to 

one or more of the reasons set forth in 34 C.F.R. § 668.13(c)(1)(C)(i)-

(iii). under a provisional program participation agreement and the 

Secretary has required a teach-out plan as a condition of participation. 

or

(B) the institution has pending claims for borrower relief discharge that, if 

approved could total 5 percent or more of the institution’s annual title 

IV, HEA volume.

2. Closed institutions 

 

(d) Closed institution. If an institution the agency accredits or preaccredits closes without 

a teach-out plan or agreement, the agency must work with the Department and the 

appropriate State agency to assist students in finding reasonable opportunities to 

complete their education without additional charges, including actions such as by— 

 
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(i) Working with institutions to secure teach-out agreements that meet the 

requirements of §602.24(c)(9); 

 

(ii)Where a teach-out agreement cannot be arranged, working with institutions 

identified in the teach-out plan to secure transfer options with those institutions 

that meet 

the requirements of §602.24(c)(9);

 

(iii) Making teach-out or transfer options, the terms of such options, and 

information on obtaining transcripts, loan discharges, and reimbursement publicly 

available on the agency’s website; and (iv) Sharing such information with 

appropriate State agencies and, as applicable, with other recognized accrediting 

agencies.

 

3. Transfer of credit

Rationale: While increasing information about transfer policies and student outcomes can 

be helpful tThe reporting and categories contemplated by these new requirements ED 

would require isare potentially very confusing and would not be useful of help to students 

and prospective students. 

(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 transfer of credit policies that— 

(1) Are publicly disclosed in accordance with §668.43(a)(11);

(2) Include a statement of the criteria established by the institution 

regarding the transfer of credit earned at another institution;.

(3) Include information on the average time to completion for transfer

students;

(4) Include information on the share of transfer students enrolled at the 

institution; and 

(3)(5) Include information on credit transfer acceptance rates; 

(6) Are designed to be consistently and fairly applied and which do not 

discriminate on the source of accreditation; and 

(7) Include an assessment of the equivalency of the credits being 

requested for transfer 
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602.26 Notification of Accrediting Decision

Rationale: Agency decision letters vary and may not provide information in a form that is 

useful for this purpose. This language would better suit the purpose of the requirement 

to indicate the substance of the decision in a clear, useful form. 

(b) Provides the decision letter or clear notice of the basis for a final decision of a 

probation or equivalent status or an initiated adverse action to the Secretary, the 

appropriate State licensing or authorizing agency, and the appropriate 

accrediting agencies at the same time it notifies the institution or program of the 

decision and requires the institution or program to disclose such an action within 

seven business days of receipt to all current and prospective students; 

§602.27 Other information an agency must provide the Department. 

 

Rationale: It seems odd to be asked to provide the Department with a list of institutions 

that have recently been approved by it to apply to change accreditors. To the extent that 

ED wants to understand the scale of institutions seeking initial accreditation from an 

agency for reasons relating to capacity, agencies could be asked to indicate the number 

of (US? All?) institutions in the queue from which they have accepted applications. 

(However, one risk that has been suggested is that schools on such a list might 

overstate the chance of their accreditation, or the list might suggest to the public that 

their prospects for approval were good). Instead, a simple number of institutions seeking 

accreditation or pre-accreditation should be adequate to serve ED’s stated purpose of 

monitoring when increased scale of applications might warrant inquiry into agency

capacity. 

(2) A list, updated semi-annually, of any institution eligible for or participating in

title IV, HEA programs that has applied for initial accreditation to the agency and 

for which the agency has accepted or acknowledged the application for 

processing; 

Alternative: 

(2) the number, updated annually, of [US? all?] institutions that have applied to 

the agency for initial accreditation and have been accepted for processing.