Negotiated Rulemaking Program Integrity and Institutional Quality – 2/8/24.

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 DEPARTMENT OF EDUCATION

OFFICE OF POSTSECONDARY EDUCATION

NEGOTIATED RULEMAKING PROGRAM INTEGRITY 

AND INSTITUTIONAL QUALITY

SESSION 2, DAY 4, MORNING

FEBRUARY 8, 2024

On the 8th day of February 2024, the

following meeting was held virtually, from 10:00 a.m.

to 12:00 p.m.
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P R O C E E D I N G S

MR. ROBERTS: Good morning and welcome 

back to day four of session two for this negotiated 

rulemaking. My name is Brady Roberts with FMCS. I'll be 

facilitating this morning. I want to kick us off with 

just a few brief items of housekeeping and then we'll 

jump right back into the reg text on accreditation. Just 

a reminder to the committee that everyone will have three 

minutes for their comment to offer new information for 

the negotiating community. And we ask that negotiators 

endeavor to utilize the chat feature to indicate support 

for previous positions or other negotiators' stances or 

to share any additional information. We ask that folks 

keep comments courteous, professional, and focused to the 

topics that we're currently covering within the reg text. 

So I know this document is something like 66 pages. But 

if folks can endeavor to keep comments to the germane 

section, it will help just, a, keep us on track and b, I 

think, help tailor some of the feedback that we're asking 

you to provide in a really easy-to-digest format. And 

then we will kick things off with a quick roll call, and 

then I'll turn it right over to the Department. So 

without further ado, representing business officers from 

institutions of higher education, we are joined by Joe 

Weglarz.
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MR. WEGLARZ: Good morning, all.

MR. ROBERTS: Good morning, Joe. And 

his alternate Dom Chase. I don't see Dom but we- I will 

let you know when he joins us. Representing civil rights 

organizations and consumer advocates, we are joined by 

Carolyn Fast.

MS. FAST: Good morning.

MR. ROBERTS: Good morning, Carolyn. 

And her alternate Magin Sanchez.

MR. SANCHEZ: Good morning.

MR. ROBERTS: Representing financial 

aid administrators, we are joined by JoEllen Price.

MS. PRICE: Good morning.

MR. ROBERTS: Good morning, JoEllen. 

And her alternate Zack Goodwin.

MR. GOODWIN: Hi, everyone.

MR. ROBERTS: Hi, Zack. Representing 

historically black colleges and universities, tribal 

colleges and universities and minority serving 

institutions, we are joined by Dr. Charles B.W. Prince. 

Good morning, DC.

DR. PRINCE: Good morning.

MR. ROBERTS: Good morning. And his 

alternate, D'Angelo Sands.

DR. PRINCE: He won't be joining us 
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until this afternoon.

MR. ROBERTS: Oh, okay. Thank you. 

Representing institutional accrediting agencies 

recognized by the Secretary, we are joined by Jamie 

Studley.

MS. STUDLEY: Hello.

MR. ROBERTS: Very early morning to 

you, Jamie. And her alternate, Michale McComis.

MR. MCCOMIS: Good morning.

MR. ROBERTS: Representing 

institutional accrediting agencies recognized. Oh, sorry. 

Legal assistance organizations, we are joined by Robyn 

Smith.

MS. R. SMITH: Hello.

MR. ROBERTS: Hi, Robyn. And her 

alternate, Sophie Laing.

MS. LAING: Good morning.

MR. ROBERTS: Good morning, Sophie. 

Representing private nonprofit institutions of higher 

education, we are joined by Erika Linden.

MS. LINDEN: Good morning.

MR. ROBERTS: Good morning, Erika. And 

her alternate, Scott Dolan.

MR. DOLAN: Good morning.

MR. ROBERTS: Good morning, Scott. 
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Representing programmatic accrediting agencies recognized 

by the Secretary to include state agencies recognized for 

the approval of nurse education, we are joined by Laura 

Rasar King.

DR. KING: Good morning.

MR. ROBERTS: Good morning, Laura. And 

her alternate, Amy Ackerson.

MS. ACKERSON: Good morning.

MR. ROBERTS: Good morning, Amy. 

Representing proprietary institutions of higher 

education, we are joined by Jillian Klein.

MS. KLEIN: Good morning, everybody.

MR. ROBERTS: Good morning, Jillian. 

And her alternate, David Cohen.

MR. COHEN: Good morning.

MR. ROBERTS: Good morning, David. 

Representing public four-year institutions of higher 

education, we are joined by Jason Lorgan.

MR. LORGAN: Good morning.

MR. ROBERTS: Good morning, Jason. And 

his alternate, Alyssa Dobson.

MS. DOBSON: Good morning.

MR. ROBERTS: Representing two-year 

institutions of higher education. I believe our primary, 

Jo Alice Blondin mentioned that she might be absent this 
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morning but correct me if I'm wrong. I think we are 

joined by her alternate, Michael Cioce.

MR. CIOCE: That is correct. Good 

morning.

MR. ROBERTS: Good morning, Michael. 

Representing state attorneys general, we are joined by 

Diana Hooley.

MS. HOOLEY: Good morning.

MR. ROBERTS: Good morning, Diana. That 

alternate position still is vacant. Representing state 

officials, including state higher education, executive 

officers, state authorizing agencies and state regulators 

of institutions of higher education, we are joined by 

John Ware. Good morning, John. And his alternate Rob, 

will be absent today as well. Representing students or 

borrowers, including currently enrolled borrowers or 

groups representing them, we are joined by Jesse Morales. 

I don't see her but I will let you know once she joins. 

But we are joined by her alternate, Emmett Blaney.

MR. BLANEY: Hello.

MR. ROBERTS: Hi, Emmett. Representing 

U.S. Military service members, veterans or groups 

representing them, we are joined by Barmak Nassirian.

MR. NASSIRIAN: Good morning.

MR. ROBERTS: Good morning, Barmak. And 
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his alternate, Ashlynn Haycock-Lohmann.

MS. HAYCOCK-LOHMANN: Good morning.

MR. ROBERTS: Good morning, Ashlynn. 

Representing the Department, we have two negotiators with 

us today. It'll be, Herman Bounds and Greg Martin.

MR. MARTIN: Good morning.

MR. BOUNDS: Good morning, everybody.

MR. ROBERTS: Good morning to the both 

of you. And of course, joining us from OGC, we are joined 

by Denise Morelli.

MS. MANGOLD: Denise isn't here this 

morning.

MR. ROBERTS: Oh, apologies, but we are 

joined by, Donna Mangold, also from OGC.

MS. MANGOLD: Good morning.

MR. ROBERTS: Good morning, Donna. Did 

I forget anyone? Apologies if I did. Okay. I think what 

we're going to do because we kind of left the discussion 

yesterday in the middle of a section of the regulatory 

text is Herman, I'll turn it over to you. A, if you have 

any opening announcements that you'd like to make, but B, 

if you want to reshare where we are in that issue paper 

and then I'll turn it over firstly to Jillian Klein once 

we turn it over to the committee as she was last in our 

queue when we ended things for public comment yesterday. 
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So, without further ado, Herman, I'll turn it over to 

you.

MR. BOUNDS: Yeah, if we could 

basically just go to the very beginning of 602.20. And I 

just want to hit the highlights since, you know, we 

didn't finish that section up yesterday. Yeah. We'll hold 

right there for just a second. I did want to mention, 

too, that we did receive a data request here that I was 

going to talk about yesterday. But again, we ran out of 

time. And it was related to information on whether we 

have seen, you know, an increase in agencies allowing 

institutions to be non-compliant for a certain amount of 

time. Of course, I think we stated before that we just 

didn't have that information just being too new of a 

requirement. What we did do though, is we did collect 

information on the number of agencies that have expanded 

their enforcement timeline from what it was previously 

prior to the 2020 reg changes which is what we brought 

back here. And so there are- there's actually- there was 

36 accrediting agencies who have- that did not expand 

their timelines to the, you know, to the 150% of the 

program, what we currently have in current regulation. So 

again, 36 agencies have not expanded their enforcement 

timeline. So I wanted to point that out to everyone. So 

with that said, we can scan down- and I think we had 
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another information request from the agency, from the 

committees but I'll get to that here in just, yeah right 

there. This is where we talked a little bit about 

yesterday. This is where we're bringing back the 

requirements that we previously had. And there was also a 

discussion here yesterday about was the term, immediate 

adverse action. Was that- is that also in current 

regulation and it is in current regulation also the term 

will take immediate adverse action. And I think that is 

in 602.20 (b) right now. I'll look up- I had it open, but 

I let it get away from me. This whole right there. I want 

to make sure I give you the right- So right now. Yeah, 

that's in 602.20 (b). And it still uses the term, 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 required. So I wanted to 

clear that one up from yesterday too. And so if we look 

at (b) in this section here, this is the carve-out that 

we have now for non-compliant issues related to student 

achievement. And again, I think we've discussed this in 

the previous session. We just think that those noncompliant areas related to student achievement might take 

an agency some additional time to correct. So we have the 

carve-out there. If we go ahead and scan down to (c), we 

address extensions for good cause here. I think I talked 
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about this yesterday, that we have a maximum amount of 

time for an addition, excuse me, an extension for good 

cause at one year. Also, note that we have- this is the 

first time that we have put a time limit on the amount of 

time an agency can award an extension for good cause that 

was not in the regulations prior to 2020 and it was not 

in the regulations that were effective 2020. So this is a 

new requirement. I think we had some just a lot of 

discussion about that in the previous session. I think if 

we go down to the next page. We made the change language 

from the statute here in (f) where we talk about initial 

arbitration requirements. And then, in (g), no change. We 

just made some reference to some student achievement 

provisions, excuse me, student assistance provisions, 

here. And (h) is where we had some discussion yesterday. 

This is the provisions that allow agents to be 

noncompliant for some additional time based on, you know, 

circumstances beyond their control, natural disasters, 

and other things that we- similar things that we have 

listed here. And then if we scan down to the- and that 

continues down through the next page. And then we did put 

in (5) to kind of address some concerns of committee 

members. Which basically, you know, talks about here that

unless the special circumstance described in this 

paragraph constitutes a new and independent cause for 
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noncompliance. So we're trying to help prevent some 

agency just trying to extend that time based on this. But 

I think Jamie and I had a discussion. There could be some 

instances where an institution is non-compliant with a 

certain thing and then something happens and, you know, 

we would expect the agency to use their judgment, you 

know, to explain, you know, this incident may allow some 

additional time for this but there's really nothing that 

the institution could do about that. So just wanted to 

recap what we talked about yesterday and I'm happy to 

open it up to the floor for discussion.

MR. ROBERTS: Alright. Excellent. Thank 

you, Herman. Jillian, if you're all set to go, I have 

you, the only person on my list right now, but take it 

away.

MS. KLEIN: Great. Thanks. Good 

morning. So I have a question on the bottom of page 20, 

which I apologize because now that I'm seeing that it's 

not highlighted, I'm assuming we saw this in January. And 

so I'm sorry I didn't raise a question then. But the line 

that says it talks about student achievement and it says 

the timeline may include intermediate checkpoints on the 

way to full compliance and must not exceed the lesser of 

four years or 150% of the length of the program. I'm 

confused about how this works. For example, for a 
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doctoral program where maybe the time to complete the 

program is 6 or 8 years, as outlined in a catalog. And I 

think if I'm understanding this and it's really early and 

I'm not a math person, but I think this language would 

mean that even a program that takes students six years, 

as documented in the catalog to complete, would have to 

meet a better student achievement standard within four 

years. Which I feel like is super punitive to 

institutions and not representative of how long these 

programs are and sort of how long it takes for students 

to move through them. So can you speak to that? And then 

I have one other question.

MR. BOUNDS: Yes. Then that was- I 

guess that one was directed to me or were you asking the 

agencies how they?

MS. KLEIN: No, I'm asking you.

MR. BOUNDS: Yeah. Yeah. So yeah, it'sso take a- and I know you gave me an example of a 

doctoral program. But you take a four-year bachelor's 

degree program, 150% of that program, they would have, 

what, six years right, to complete- to come into 

compliance. So we're saying.

MS. KLEIN: I'm sorry to interrupt. 

Doesn't it say the lesser of, again, I don't do math but.

MR. BOUNDS: No, no, no, no, you're 
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right. I was just giving you an example of 150, but- or 

the lesser of, you know, of the lesser of four years.

MR. ROBERTS: Herman, we can't quite 

hear you. Did you want to speak to the question? I'm 

sorry, go ahead.

MR. BOUNDS: Yeah, I was just gettingI just wanted to get back to the page where we were 

referring to. Yeah. So the timeline may include 

intermediate checkpoints along the way. Must not exceed 

the lesser of four years or 150% of the program. So the 

lesser of four years, that would be the requirement in 

that case. Yes.

MS. KLEIN: So I think for the reason 

that I specified, this doesn't make sense for program- I 

mean, I understand your answer, and I think it's telling 

that your answer was regarding a bachelor's program, 

which I understand that's probably the lens through which 

most of the language was written. But obviously, there 

are many, especially postgraduate programs that are much 

longer by design than four years. And so, my 

recommendation is that this language should just strike 

the lesser of four years part, and it should just be 

based on 150% of the length of the program.

MR. BOUNDS: Okay. Yeah, we can 

definitely take that back. I just want to remind, that 
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this has been in place too since, you know, since 2020.

MS. KLEIN: Okay. And then my second 

question or my second comment, I guess is, and this is 

similar, I think, to what you indicated with respect to 

the data request and not having the data. So I'm 

expecting that to be your answer. But I just- this group 

I think has heard me say this before, I get nervous about 

putting- like codifying lengths of time for anything if 

it's not based on data. So the addition of the for a 

maximum of one additional year. What I would ask is, what 

data do you have to support that this is the right 

timeline for an extension, in this section? I think what 

you're going to say is we don't have that data. So I 

would say I think it's a bit arbitrary to put in a 

timeline that's not based on actual data that indicates 

if that's an appropriate length of time or not.

MR. BOUNDS: Right. And we welcome that 

comment. And that's like I said previous, you know, this 

is the first time that we've actually added a timeline 

for an extension for good cause because previously it was 

unlimited. There was no end cap on it. I think we just 

took a stab at one year. I think we may have gotten some 

committee recommendations on it. I'm not sure, but yeah, 

we would definitely, you know, kind of have to take a 

look at that. But we really.
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MS. KLEIN: I would say taking a stab 

at a length of time feels arbitrary to me. So it would 

just, you know.

MR. BOUNDS: Yeah. Yeah. Yeah, I would 

agree. We just don't- we just have not tracked that data 

since all agencies, you know, there's 53 recognized 

agencies and all 53 have, you know, they all had 

different timelines in this area. So point well taken, 

though.

MR. ROBERTS: Would you mind putting 

the proposal to the language to strike in the chat just 

so we don't lose view on it? Thank you.

MS. KLEIN: Thank you.

MR. ROBERTS: And just, I think, Dom 

Chase, our alternate for business officers has joined us 

so good morning, Dom. But I'll turn it over to Barmak 

now.

MR. NASSIRIAN: I want to stay on the 

same text, if I may, and just take one step back and 

point out to the committee that this text sort of, 

embodies the tendency of the Department's approach to 

accreditation. Which is to extend the benefit of every 

doubt to institutions with almost no regard for the harm 

that could ensue if the institution remains non-compliant 

during- even if it does manage to turn itself into a 
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compliant participant the period during which the 

institution is non-compliant could do a lot of harm to 

students. I certainly understand Jillian's point about 

lengths of programs, but I want to make sure people 

understand these are non-compliant programs. So it's notthe Department isn't attempting to shorten the duration 

of a doctoral program that really takes six years. The 

real effort here is to figure out what do you do when the 

doctoral program is not complying with the requirements 

that it's supposed to be complying with? And it seems to 

me that giving them this opportunity is already a 

mulligan. Then on top of that, there is an objection that 

when they fail a second time, somehow an extra year is an 

arbitrary and unfair treatment of that non-compliant 

program. So I would actually encourage the Department to 

rethink this language and understand that during these 

periods of noncompliance, there is tremendous harm that 

could potentially damage students and taxpayers. That 

wasn't the reason I raised my hand, but I just wanted to 

make that point. And then I wanted to also point out in 

the last sentence before we go to subsections (1) and 

(2), the text reads, the timeline may include 

intermediate checkpoints. And I want to say may? So what, 

we're going to roll the dice? The entity again has failed 

to comply with the requirements that it agreed to comply 
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with. We're giving it extra time and we're going to just 

walk away and hope for the best. We are not going to 

insist that they do have intermediate checkpoints to make 

sure that their hope and belief that they are going to be 

compliant is based on some level of effort that can be 

measured and reassure us that they're actually on the way 

to coming into compliance. So I would suggest replacing 

that may with must or shall.

MR. ROBERTS: Thanks, Barmak. Robyn, 

we'll go to you next.

MS. R. SMITH: Sure. I have a question. 

I just need to Department to clarify. There’re three 

different time periods proposed. There's subsection (a) 

with the lesser of two years, or 150%, (b) with the 

lesser of four years that have 150%. And then you have 

the (h) with the three years. And I just want to ask, are 

those periods- is (h) in combination with (a) or (b), is 

it cumulative or is it consecutive? In other words, can a 

school actually keep a program up to seven years? If they 

could clarify whether those are cumulative or 

consecutive, that would be very helpful.

MR. BOUNDS: Yeah. So I just want to 

remind everybody in (h), (h) is really for a special 

circumstance. And I think maybe Jamie and I kind of went 

and talked about this a little bit yesterday. If and I 
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think the example she used and Jamie, you correct me if 

I'm wrong, I think the example was talked about, if you 

have an institution that may be non-compliant for 

financial issues, I think that maybe may have been the 

case. And if that institution had been making some 

significant progress to correct that issue but then 

because of a natural disaster, that particular 

institution was damaged in a tornado or something to that 

situation, there could be, I mean, logically, there could 

be a reason for the agency then to allow additional time 

because of that natural disaster which may extend where 

they were, previously. And those things are going to 

happen. But when we put in (h), we were really just 

thinking about some of these situations where the 

institution does not have- where there's no control. And, 

you know, we would think that those situations where I 

just explained would be pretty minimal. So to answer your 

question, maybe yeah it could. You know, but again, we 

would leave that decision- the determination to the 

agency decision making body to determine whether there 

was a correlation between an existing event and a natural 

disaster, you know, that may require that. It also 

depends on how much- and I don't mean to be talking a 

long time here, but it also depends on where the 

institution is in the agency's review process. They 
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could, you know, they could be at the beginning of a 

decision in some cases or in this case where the 

institution has made significant progress, they could be 

at the very end of that, you know, review or action 

period. So. I know I talked a long time here but all I 

can say is it just depends on the situation.

MS. R. SMITH: And thanks. It's, I

mean, it's not just limited to natural disasters, which 

is, there's six different.

MR. BOUNDS: Well, sure.

MS. R. SMITH: And that's why it's a 

little concerning that, you know, they could be, in some 

cases, cumulative where a program could be open for up to 

seven years in some cases in noncompliance, which is, 

again, seems way too long from the perspective of 

students. And I'm not sure that that is an appropriate 

time period when you're talking about a teach-out or and 

do hardship on students. It's hard to imagine that long 

of a time period for a lot of these different 

circumstances. So we've suggested one year would be 

appropriate, but because it just seems way too long.

MR. BOUNDS: Yeah. And I would agree 

and not to go back. But in those situations where there 

is no existing period of noncompliance. This is a new 

issue. This is really one of these special circumstances. 
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You know, one year, two years or three years, what would 

be a significant amount of time in a case where there is 

something new? And we try to address some of that in (5) 

where we talk about constituting a new and independent 

cause for noncompliance. But you're not going to- I think 

here would be hard to write a perfect reg. But again, we 

would, you know, we would take any other suggestions that 

you all may have in this area. And again, I would also 

like to say this is not a new regulation. We moved this 

from 602.18 delta. So this has been here since 2020 also.

MR. ROBERTS: Thank you both. Jamie, 

we'll go to you next.

MS. STUDLEY: Thank you. Robyn's asking 

some good questions about length, and this is something 

where history may have a little to offer us. While we're 

looking particularly at natural disasters, we could think 

what Katrina meant for institutions. We have a situation 

where we've had natural disasters in the South Pacific 

institutions. So we may be able to get some actual 

experience that can help us. Because it doesn't need to 

be unreasonably long. We're not looking for, you know, 

excessive flexibility. But we do want to be able to help 

institutions that experience one of the several factors 

that are included to be able to manage toward coming back 

into compliance. But the more important question is, I 
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think it would be helpful to come back to good cause 

extensions, which are not granted easily. And even with 

multiple screens, like Herman, I don't have it in front 

of me, I wonder if the Department could share with us the 

requirements for a good cause extension. Because I know 

that ours require a very specific finding about the 

grounds for a good cause extension that the commission 

looks at seriously before they grant them. And the 

question about whether the student program- whether the 

services and academic program being offered to students 

are the basis for the problem or are meeting our 

standards while other things need to be improved for 

long-term reasons, is a very important part of that 

determination. So I think understanding how carefully a 

good cause extension needs to be considered, might be 

helpful in having people realize that these are not done 

lightly. And the current situation for students getting 

their education is something that a commission ought to 

be looking at. Because it's one thing to say add new 

board members who bring new expertise or, you know, you 

have a long-term financial issue to work out. But the 

academic program and student services and arrangements 

that you are offering meet those standards is a big part 

of it.

MR. ROBERTS: Do you want to speak to 
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that, Herman?

MS. STUDLEY: I don't know whether 

Donna can put her hands on the good cause exception 

language or if not, I'll look for it and we'll get it to 

everybody.

MR. BOUNDS: Yeah. It's, I think, you 

know, under, again, under the current regulations, it's 

602.20 (a)(3). And basically, it just reads that the 

agency must follow its written policies and procedures 

for granting a good cause extension that may exceed the 

time frame described in the current 602.20 under, you 

know, (a)(1) or (a)(2) of this section when such an 

extension is determined by the agency to be warranted. So 

again, we don't put any specific requirements. We just 

say an agency must have a process for awarding and 

evaluating when an extension for good cause, you know, 

should be given. Under what we have here proposed, I 

think we say the same thing. We don't put the brackets 

around the agency's thought pattern here. We just say 

that the agency has to have a process and policies for 

granting the extension for good cause. And then here with 

our new language here, this is then when we said we put 

in the maximum time frame. You know, I can talk about 

historical thinking, you know, on extension for good 

causes. But it's really a determination for the agency's 
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decision-making body, you know, to make- and our 

regulations are looking at decision making, body making 

that decision. Not that we would substitute our expertise 

for the agency's decision-making body. That's not really 

what these regulations are intending to do or would or 

should be intended to do.

MR. ROBERTS: Thank you. Carolyn?

MS. FAST: A couple of quick points I 

wanted to make. One is that I think it's actually very 

important in section (c) that there be a limitation on 

the time period in which there could be a good cause 

extension. I think it makes very much sense to limit that 

to an additional year. I think that that is an important 

protection for students to make sure that they're not in 

a situation where they're being harmed by the period of 

noncompliance that could be extended beyond the normal 

requirements for that. And it does not sound to me like 

the regulations on good cause extension specify any 

particular rules that would protect students in that 

situation. Secondly, and separately in (h), I know that 

it has been characterized as this sort of thing that 

would only happen in cases of natural disasters or other 

odd circumstances where the extensions of the 

noncompliance period would be considered. But I want to 

point out that in each- it also mentions as a condition
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the normal application of the agency standards creates an 

undue hardship on students. I honestly don't know what 

that means, but it seems like it could- and I'd be 

interested to know what the Department would consider an 

example of a time where noncompliance with an agency 

standard should be excused because somehow the standards 

themselves would create an undue hardship on students. 

Perhaps that I'm just not understanding, but perhaps 

someone else does. I'd be curious about that. It raises 

some concerns for me because it seems like it is 

potentially a very wide potential loophole that could add 

to a period of noncompliance. But perhaps I'm just not 

understanding what that is.

MR. BOUNDS: I mean, I think it could 

depend on several circumstances. Maybe it has to do with, 

you know, it could be due with, you know, economic 

situations where, say, an agency that has a, you know, 

that has a standard 75% employment rate. Well maybe 

because of the situation, you know, in a location, you 

know, several major employers for that particular 

discipline go out of business and that then affects an 

institution's ability to meet that specific standard. I 

mean, that's just one example. I'm sure that people could 

probably find others.

MS. FAST: Sure. But on the other hand, 
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you would want the institution to maybe not continue 

offering a program that where, you know, where they 

couldn't find employment for their students. Like that 

would be a good reason for them to, you know, shift their 

resources to a program that does meet the requirements, 

you know, from a perspective of looking at students.

MR. BOUNDS: Yeah, I mean, that's a 

good point. I just put myself back into a, you know, a 

career and technical education institution who has a 

welding program. I don't think a lot of people can argue 

that welding programs are usually pretty successful. But 

if you're catering to a couple of specific businesses 

there and they have a down year, I mean, I think to me 

that would be a reasonable application there. Again, 

that's just one example. I'm sure there are others that 

other folks can think of. But again, your point is well 

taken.

MR. ROBERTS: Thank you both. Robyn 

will turn to you. I just want to note that David is 

coming to the table on behalf of proprietary 

institutions. But first you, Robyn.

MS. R. SMITH: So I just want to point 

out again, Herman, I agree with Carolyn's suggestion and 

what you just described isn't an undue hardship, it falls 

under section (3). So it's already accounted for by the 
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economic recession or closure of a large local employer. 

So I just want to reiterate, I also have the same 

concerns as Carolyn and don't understand the undue 

hardship and would like to hear examples of that that 

don't fall under the other.

MR. BOUNDS: I mean, it is, you're 

right. It is under that section. And I just think there 

could be other examples. But again, I think we can take a 

look at that and come back. As I said, I think there 

could be other, I mean, there could be other situations 

where, you know, I could state maybe, you know, pilot 

programs or new programs. I mean, there are a lot of 

things we think that could apply to, but we will take any 

suggestions that you have or any thoughts and we'll look 

at that when we come back.

MR. ROBERTS: Okay. We've got Scott 

coming to the table as well for private nonprofits. But 

first, David, go ahead.

MR. COHEN: Thank you. If the ultimate 

goal of, you know, what we're doing here is to strengthen 

higher education for the benefit of students and 

taxpayers, and really, in an era where we're seeing an 

unprecedented closure of schools with few new ones 

opening, I'm wondering, you know, if the Department has 

any data on the agencies that did expand the time frame 
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or give this extra time. Does the agency have any data on 

what the final disposition was of those schools? What 

ultimately happened? Or stated another way, did the 

expansion of the time frame ultimately strengthen higher 

education by saving some good schools that ultimately 

came into compliance? Or at the end of the day, did we 

lose more schools and thereby maybe potentially reduce 

access in areas of the country where we're already 

facing, you know, schools that are closing? So I think 

the question of time frame is important. But what 

happened with the time frame extensions, was it good 

ultimately for the taxpayer and students or was it not? 

And I'm just wondering if the Department has any data on 

that.

MR. BOUNDS: No, no, we don't have any 

data on that because reporting of extensions for good 

cause is not something that they're required to report on 

when they, you know, when they apply that policy. So 

yeah, we don't have any data on that.

MR. ROBERTS: Alright, we'll take 

Scott. And then if there are no new hands, it might be 

appropriate to take a quick temperature check and move 

on. But Scott, go ahead.

MR. DOLAN: Yeah. I hear loudly and 

clearly what Carolyn and Barmak are suggesting, you know, 
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about wanting to protect students. Though I also am 

listening to Herman talk about let's make sure we're 

really paying attention to concrete examples. And, you 

know, Jamie's point about, you know, long-term financial 

sustainability might be one of those issues that an 

institution would need to work on for compliance reasons. 

And the language here says that an accreditor must take 

immediate adverse action. Can we just make sure we're 

clear on what adverse actions are? Withdraw or deny 

accreditation would be one of those. And can we also 

think through what impact that might have on the students 

that are currently being served by an institution that is 

trying to get back in compliance and develop a roadmap 

for how to be sustainable financially. So I want to 

protect students too, and I want to protect students at 

that institution that is in a position that's working 

through their financial issues, doing the right thing to 

get back on the right track and serving students well 

currently. So I agreed. We're all in agreement about

protecting students. It's just about doing this in a 

reasonable and a sound way. And there are multiple 

examples of noncompliance. So we need to use judgment 

too. So I think that's just one thing I think it's 

important for us to pay attention to as we're moving 

through this, especially when we're thinking about 
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students.

MR. ROBERTS: Thank you, Scott. Herman, 

if there's nothing else on your end, I don't see any 

hands from the committee. We can take a temperature check 

and move on if you'd like.

MR. BOUNDS: Yeah, sure. I just wanted 

to say too, yeah, the definition of adverse action, I 

think as Scott just mentioned that's, you know, that's 

been around for a long time. So there's- and we already 

talked a little bit about yesterday that, you know, 

before the adverse action is taken, you know, the 

institutional program would have to be afforded the due 

process requirements in 602.25. So, I'm ready for a 

temperature check if there are no other questions.

MR. ROBERTS: Alright, folks, if you 

wouldn't mind just indicating where you stand on 602.20 

as it's currently written, by indicating your thumbs. 

Again, thumbs up, no problems with it. Sideways thumb, 

you can live with it. Thumbs down, serious reservations. 

And try to hold them here just while we capture it. I 

have JoEllen Price as a thumbs down, I have Barmak 

Nassirian as a thumbs down, Robyn Smith as a thumbs down, 

I have Jillian Klein as a thumbs down and I have Erika 

Linden as a thumbs down. Did I miss anyone? Alright. 

Would anyone like to come off of mute and add any new 
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considerations? Any new potential ways that you could see 

yourself moving to a minimum a sideways thumb for the 

committee's consideration or has everything been covered? 

Not seeing any new feedback. Thank you all for that. And 

if it's okay with everyone, I'll turn it back over to 

Herman for 602, I guess the next change is point 22, 

Herman?

MR. BOUNDS: Yeah. Nothing in 21. So 

the next section would be 22. And we're going to kind of 

waddle through all these. There are a ton of changes in 

this in this particular section. And I also may call on 

my colleague, Donna Mangold, for some assistance, 

especially when we get to some of the issues with 

distance ed and some of the other sections in sub-change, 

change of ownership, change of control which have 

implications with Title IV eligibility. So we will start. 

And I'm just going to hit these change by change just 

because, you know, these regulations sometimes stack upon 

one another. In paragraph (a)(1) there we have 

substituted adequate for written. As we scan down to (2) 

we have stricken covers high impact, high-risk changes. 

And we just have basic definitions of substantive change 

includes at least the following. (b), we have stricken 

legal status form of control. We've added some new 

language here. And we referenced 602.31 (h). Of course, 
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602.31, again, affects Title IV eligibility. That's why 

it's in 600. And it's basically, you know, in Title 

change of ownership resulting in a change of control for 

private nonprofit private for-profit and then public 

institutions. And then (h) talks about, I'm sorry, go 

back. I didn't mean (h). I meant, in (b) the reference to 

602.20 (h). I'm sorry. Thanks. And again, that has some 

information about timelines for the approval of subchange. When we get to the end, if you all have any 

specifics on that, I will definitely have to punt that to 

Donna if you have any questions there. And then the next 

section under (d), that's where we added information 

about requiring an additional approval or an institution 

who begins to offer an increase of a distance education 

program that exceeds a 50%, you know, 50% threshold. You 

know, logically when I read this, if you have an 

institution that's already 80%, then this, you know, this 

wouldn't apply. But once you get to that 50% threshold, 

(d) would apply. And then we've added some language in 

(e), I'm sorry, yeah, in (e). And let's scan down to (h). 

We added the change in the agency's most recent 

accreditation group of 25% or more of clock hours and 

credit hours awarded. And if we continue to (j) some 

language changes. (k) we have another- this is a carveout provision for additional locations. This is related 
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to some of our prison education regulations. So we wanted 

to import that requirement in here so that there was not 

any conflict with those regulations. Basically, the 

accreditation requirements for prison education programs. 

Not my expertise, but I do have the regulation, the 

specific regulation copied if there are any questions 

there. If we move on down. We added (l) the additional 

branch campuses as defined in 600.2 And (m), we have 

information on new requirements for (m) to written 

arrangements. I think we had a bunch of comments and 

discussions about this. So we would definitely, you know, 

welcome any feedback we have about written arrangements, 

in general. This one is there as a requirement if 

[inaudible] offers 25% and up to 50%. Additional language 

here about written arrangements with ineligible 

institutions. Again, we will welcome any conversation 

here. And again, like I said before, we did receive a 

number of negotiator questions about referencing written 

arrangements. And they would move down to (b). And 

basically, what we're saying here is that if an agency 

approves a subsidy change request for an institution 

that's, you know, the subject of probation status, 

negative action, provisional certification, there should 

be a notification provided to the Department within 30 

days, kind of explaining the agency's rationale for 
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approving that. And I would say that's really similar to 

a requirement that we have in 602.28 (c) where we say, if 

an accrediting agency accredits an institution that is 

the subject of an adverse action by another agency, they 

can accredit that institution, but they must write in and 

provide us a basically a rationale of why that other 

agency's action did not preclude their accreditation of 

that institution or program. And in both cases, you know, 

we think if the institution is in one of these statuses, 

that an explanation should be made why the agency, in 

this case, decided to approve the substantive change or 

in 602.28 (c), why the agency determined it was okay to 

accredit that institution that was in, you know,- that 

had action taken to by- taking on it by another 

accrediting organization or state agency I think it says 

there. And I think we are getting down to- we're looking 

at (c). A little word change here but sort of 

significant. We're saying here that the agency must have 

an effective mechanism for conducting, at reasonable 

intervals, visits to all additional physical locations. I 

think I got this question during the last session and I'm 

glad we're back to it here because I don't know if I gave 

a complete and clear explanation of what we're talking 

about. You know, if you look at this, what we're saying 

is, you know, if you- and it says at reasonable 
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intervals, but what we're kind of looking at here, if you 

give a ten-year grant of accreditation or a 5 or 7-year 

grant at some point within that grant of accreditation to 

that institution, you should have reviewed all of those 

additional locations. And we're saying at reasonable 

intervals, however you want to conduct those reviews. But 

at some point, during that grant of accreditation, you 

should review those additional locations. And then we 

added branch campuses approved, also. If we scan down. 

Yeah, I do want to stop. This is not marked. I think I'll 

get to it and let you know. So, some strikethroughs in 

(e). I want to get down to (2) on this page. So where it 

talks about- and there's no marking there. But I just 

want to explain because it's unclear. Where it says a 

mechanism for conducting reasonable visits to a 

representative sample of additional locations or 

institutions that operate more than three locations. We 

are planning on striking that language because that 

doesn't, I mean, that doesn't make any sense. In 

particular, when previously we said, we want you to 

review all additional locations. So we are going to- I 

just want to let everybody know we're going to strike (2) 

here. And we may get some recommendations. Maybe we need 

to rearrange the order, so it makes sense or flows 

better. But having (2) there makes absolutely no sense 
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based on, you know, based on what we say previously. If 

we look at (f). We have some language inserted here. I'm 

happy to get some thoughts on that language. And that 

kind of takes us to the end of substantive change. And, 

before we open up, I think I had one other comment I 

needed to- I wanted to make because- could you put the 

text back up? Let's see. So if you guys will- if 

everybody will bear with me just for one minute. So if 

you can go to page 25 and go up to the highlighted the 

highlighted area on page 25. So on page 25, I think the 

portion of the highlighted that talks about or 

organization and administrative and physical capacity and 

expertise to deliver the portion of the program provided 

under the arrangement. I think that was some added 

language from folks that are on the committee. So we 

would definitely like some feedback with the language 

here. So we I know we've gone through this quite a bit so 

I will stop there and ask for questions or open it up for 

discussion from the committee.

MR. ROBERTS: Thank you, Herman. This 

is a large section that covers quite a pretty large 

diversity of topics. If folks are able to, if you 

wouldn't mind kind of taking these sort of 

chronologically as they sit in the document. As much as 

you can. I mean, obviously we'll go through the entire 
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section, but just for the sake of conversation, it might 

make sense. Do folks want to begin questions and comments 

for the committee's consideration looking at, I guess 

we'll start with letter (a) through, I guess halfway 

through page 25? Yeah, Julian, go ahead.

MS. KLEIN: I guess I don't know if 

this is what you're saying, but Jamie's suggestion in the 

chat, I think is a really good one, which is, can we 

literally just go through each change? I mean, just so we 

can all be specific about the change that we're speaking 

to and not be jumping all over. Because I don't know if 

that's possible.

MR. ROBERTS: Sure. I'd be happy to do 

that. In that case, Herman, do you want to pose the sort 

of the first element that the Department solicited 

feedback on?

MR. BOUNDS: Sure. Well, I think there 

are only a couple that we directly ask for feedback on. I 

think maybe the suggestion is we maybe we put the 

document back up and hit each area. Would that make sense 

to everybody? Okay, let's do that. So again (a), there's 

a small minor change there and maybe we make comment on 

down including (d). Yeah.

MR. ROBERTS: Gotcha. Any comments or 

feedback (a) through (d) taking us to the top of 24? 
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Yeah, Jillian.

MS. KLEIN: Yeah, just one minor 

drafting thing. If you guys stick with the new proposed 

(d) about 50% of a program or whatever is being offered 

through distance education. I think there should just be 

a conforming change in the second to the last line of 

that, where it says one course offered through distance 

education. I think what Musser told us yesterday is that 

there may be a new definition of distance education 

course. So I would just suggest that that phrase should 

align with then- it should say at least one distance 

education course, as opposed to at least one course 

offered through distance education. Just for consistency.

MR. ROBERTS: Anyone else on that sort 

of first five sections? Yeah, Jamie. Oh, you're muted 

right now by the way.

MS. STUDLEY: To stay with the 

structure. I'm just going to flag the branch campuses is 

referred to here for visits. When we get to the other 

ones that relate to required visits. I think there's a 

whole set of things related to what promotes good 

practice related to visits to branches and additional 

locations. But this is just a small piece of it. We will 

come back to it later. But there's some real questions 

about risk-based and reasonable management.
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MR. ROBERTS: Thank you, Jamie. Anyone 

else on that (a) through (d)? Yeah, Barmak.

MR. NASSIRIAN: Not to belabor 

phraseology, but I'm a little bothered by striking the 

word adequate and replacing it merely with written. Only 

because it suggests that, like, inadequate written 

arrangements would be acceptable. So you may want to 

retain that phraseology. Adequate written would be a 

better- would capture, I think, what the Department wants 

to do. I also want to flag the issue that Jillian just 

raised about the proposed definition that David 

mentioned. And I made the point when the issue was on the 

table. But I want to reiterate that the Department has to 

make sure that it doesn't create loopholes where an 

institution can just put a perfunctory in-person meeting 

to evade the definition of distance ed. Just because 

you're referring to it here and it's fairly consequential 

in this context that definition needs to be pretty 

ironclad. Thank you.

MR. ROBERTS: Thank you, Barmak. Any 

new considerations for the committee? Not seeing any. 

Herman, do you want to have your team reshare the 

document? We can take the next section.

MR. BOUNDS: Yeah. Wow. So I don't know 

where we want to go here. I guess not too significant
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here. So if we scan down through- any questions on (j) or 

(k)? Let's- yeah, let'sMR. ROBERTS: The end of 24 (j) or (k), 

I guess [inaudible] a little bit in 25.

MR. BOUNDS: Yeah (h). Yeah, I think 

(h) through (k). Any questions or concerns there?

MR. ROBERTS: Yeah, it looks like we 

got some. Scott, go ahead.

MR. DOLAN: Yeah on (k). So I heard you 

say that that was trying to carve out something specific 

to prison education programs. I don't know if I'm the 

only one at the table that doesn't truly follow the 

language there, but it reads unclear here. So I 

understand we're trying to do a few things but that's the 

way it reads and I don't know. So maybe a better 

understanding of the intent of what you're trying to do 

there. We could come back with some potential language to 

make it clearer because it's confusing as written.

MR. BOUNDS: Donna, did you want to 

come on and talk about this? I have the regulation pulled 

up. But it's basically we have this separate regulation 

that gives provisions for prison education and how and 

when they have to review or the frequency that they have 

to review additional locations. And that's what the 

purpose of this is. Maybe if we can, let's see, I don't 
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know, maybe we can put that in the chat for people to 

read. Maybe that'll make sense to folk, I don't know.

MR. DOLAN: I might suggest maybe 

that's a sentence that follows the overall intent. And 

then clearly, because when it's embedded within the in 

the language, it just- it’s unclear what's being carved 

out there, I guess, to me, as a reader. I don't- I'm 

looking at other negotiators. I don't know if that's the 

case for others. Okay. I see some nodding. Yeah.

MS. MANGOLD: I think we can take it 

back and redraft it too. I hear what you're saying. 

Sometimes it's just trying to work with the existing 

regulations and then plugging things in. So we can try to 

move that around and make it clearer.

MR. DOLAN: Yeah, I brought it up and I 

also didn't have a solution for you. So I can understand 

the challenge of doing that.

MS. MANGOLD: Go back to the drawing 

board.

MR. DOLAN: Yeah exactly.

MR. ROBERTS: Thank you, Scott. 

Jillian, did you want to add something to that?

MS. KLEIN: I mean, yeah, I had a, and 

I'm sorry, I think this is what Scott asked, or maybe 

slightly different, but so is that just to be clear, is 
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the new (k) supposed to only apply to instances of prison 

education programs? I'm sorry if this is a dumb question.

MS. MANGOLD: No. Prison education 

programs are dealt with separately. And so it would only 

be for the first two additional requirements, the first 

two additional locations. Otherwise, this is all 

additional locations but because prison education is 

considered- a prison education program is considered to 

be an additional location and they have their separate 

set of regulations, we're trying to carve that out from 

here. So I think that we could go back and maybe make it 

clearer.

MS. KLEIN: Okay. So just, I'm sorry, 

not to belabor the point, but so (k) is supposed to be, 

if it's not a prison education program, the addition of a 

new location. Is that right? Okay.

MS. MANGOLD: Yes, a physical location, 

yes.

MS. KLEIN: So I think, and Scott, I'm 

sorry I'm maybe going to misquote you, but I think Scott 

maybe sent in a proposal on this section. Or to Jamie's 

point, I think there's several places where additional 

physical locations have been inserted where I am also 

confused. I think about what the Department's intention 

is or how exactly those pieces work together. But I think 
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Scott's recommendation leaned in and I may be misquoting 

it, but sort of to narrow the scope a bit on when either 

visits are required or arises to sort of sub-change level 

in terms of additional- in terms of locations and sort of 

bifurcating between additional locations where more than 

50% of our program is offered. And I'm not sure if this 

is just a Middle States nomenclature, but what I 

understand to be other instructional sites where less 

instruction is happening. And so I would just suggest, I 

think it would be beneficial to look at his proposal and 

also to edit once you guys come back with a different 

draft, something in this language here that specifies 

that you're talking about additional locations for more 

than 50% of a program is offered, not other instructional 

sites, where much less than 50% of a program can be 

offered. And I'll add these in the chat.

MS. MANGOLD: These are defined terms. 

And so additional location is defined in 600.2.

MS. KLEIN: Yep, I understand but 

you've inserted the word physical in that phrase. Which 

to me makes me believe that definition does not apply to 

what you're trying to do here.

MS. MANGOLD: The new regulations are 

going to have physical location in it.

MS. KLEIN: Okay. So additional 
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physical location will replace the existing additional 

location. I'm sorry.

MS. MANGOLD: Yes. And it's because in 

addition location is now going to include a virtual 

location, a physical location in a prison location. So 

that's why we're saying physical to distinguish it from 

virtual.

MS. KLEIN: Got it. So this would then 

encompass physical locations where more than 50% of our 

program has been offered. Okay, Thank you. That was super 

helpful.

MR. ROBERTS: Scott, I saw you went

down and then you popped back up. Go ahead.

MR. DOLAN: Yeah. I mean, and some of 

the pieces probably should be addressed given the process 

that we're using later when we look at the reasonable 

intervals piece of it. However, I guess the question I 

would have right now would be just asking for a little 

bit more clarity around the intent here. You know, I 

understand some of what we've discussed throughout and 

what was provided previously, and I would go into more 

depth when we were talking about the all-visits piece 

later on. But I just want to make sure I'm clear from the 

perspective of the Department of what the intent of this 

change is. It just would help kind of maybe frame later 
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questions that we might have.

MR. ROBERTS: Not see anything 

immediate additional from the Department. Jamie, do you 

want to go ahead?

MS. STUDLEY: Sure. Thank you. Like 

Scott, I have questions that relate to this in another 

section but let me share the theme which is and I realize 

this is in existing regulations, but we have a chance to 

improve existing regulations that are tied to this. There 

are a number of pieces here that seem to be the reason 

for doing a site visit to an additional location that are 

actually questions for the institution. The institution 

is financially stable. The institution has engaged in 

long-range planning, showing up to evaluate the quality 

of an additional location and how it affects the 

standards meeting. Those pieces just, you know, don't 

relate to the requirement for an actual physical visit. 

Accreditors will do what we are required to do, and we 

will arrange to conduct these. But as we think about 

where our focus and emphasis should be to protect 

students, it's a real question whether some of these 

matter. Let me also share what I thought yesterday was an 

obscure question that I got from somebody who's listening 

to these negotiations that I thought I could answer. And 

now I really want to ask the Department what they have in 
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mind. We go back- in the distance education provisions 

that we were talking about, there is a proposal for 

reporting on virtual locations, which I understood to be 

and supported. Because it seemed- I thought that the 

purpose was to help the Department understand where 

distance education was being provided to allow analysis 

of outcomes. And that made sense as a way to understand 

where it is successful and where it's not. But what Donna 

just said about three categories physical, virtual, and 

prison made me wonder whether the effect of that 

provision in the distance rules is much more far-reaching 

and will trigger a whole lot of other consequences, 

possibly, in terms of how institutions- the question I 

got was how does it affect their marketing or things 

where different locations have to be treated differently? 

I thought it was a statistical analytic reporting 

requirement. I know you may not be prepared for this 

question, but I think it's important because it could- if 

it changes a whole lot of other things that institutions 

have to do, then that distance conversation was the 

consequences were understated and we should appreciate 

them. I hate to be so technical, but I think that we need 

to think about the integration of that provision and what 

else the Department is expecting. And I understand you 

may not have an answer right now.
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MR. BOUNDS: Yeah, I think Dave Musser 

is maybe on since that's definitely his area of 

expertise. Dave, are you out there?

MR. ROBERTS: Go ahead, Dave. Yeah.

MR. MUSSER: Sure. Thanks, everyone. 

It's a good question by Jamie. And I believe her initial 

interpretation of our intent is correct. We intended the 

virtual location concept to essentially be an extension 

of the institutions, otherwise authority to offer 

distance education, not a mechanism to create new 

oversight requirements or authority over the institution. 

So to the extent that an institution has been approved to 

offer distance education by its accrediting agency and is 

otherwise authorized to do so by its state, we would 

accept those things that are already in place when the 

institution reaches out to us to add the virtual 

location. So this is really not intended to be more farreaching. The virtual location concept is primarily 

intended to take the oversight process that already 

exists and create a better tracking mechanism for 

students who are enrolled through that modality.

MR. ROBERTS: Thank you both. We'll go 

to Michael next. Go ahead, Michael.

MR. CIOCE: Thank you. So I guess, and 

I don't want to open a totally different can of worms 
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here, but, you know, there's a prevalence around the dual 

enrollment opportunities with high school partners. So I 

guess I'm curious why prison is back to the carve-out. 

Like, why the prison programs are specifically cited and 

not the other types of programs? Right. So I think to 

Dave's last point, it's not to- if your state has 

authorized you and your accreditor has authorized you, 

why the carve-out on prison programs, and not high school 

programs? Because then if 50 plus percent or more than 

50% of students or whatever in (d), it was already 

approved on- it's really a question out loud. And I don't 

know if there's an answer or if it's a rhetorical 

question but just wanted to raise that.

MR. BOUNDS: Yeah, I think for me, and 

Donna and Dave can definitely chime on here. This is 

probably their area of expertise, but, you know, the high 

school areas aren't Title IV eligible. I think that's the 

main difference between the prison education programs and 

say, you know, the high school programs.

MR. CIOCE: And I saw that in the chat. 

And I agree with you, Herman. I guess the question is 

though, the definitions- the overlap and the intersection 

of the definitions, that's a little blurry, right? So I 

know there's a focus on Title IV eligibility but sites 

and students that are taking classes we don't 
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disaggregate by who's eligible for Title IV and who's not 

eligible for Title IV. So I think that's where it getsthere's a conundrum baked into that somewhere. Even if 

it's- I agree with your point and whoever put it in the 

chat. So that's the numbers- when IRT polled how many 

students are enrolled in program X or Y or site X or B or 

Z or whatever, we're not sort of parsing out by Title IV 

programs or not. So.

MR. ROBERTS: Okay. We'll take Jillian 

and then if there's no other questions, we can move 

along. But Jillian, go ahead.

MS. KLEIN: Yeah. Sorry. So back to 

Donna's comment about the definitions of additional 

location changing slightly. So, and I'm so sorry to do 

this you guys but if I look back at the red lines we went 

through on the distance education day, whatever that was, 

feels like five years ago. I see 600.2 and definitions, 

and I see additional physical location, and I see the 

virtual location language, but I don't actually see a red 

line that indicates that we're changing the sort of 

nomenclature here to additional physical location, 

additional virtual location. That wasn't in anything 

that- I mean, that section is here, but that red line was 

not provided to us and we didn't talk about that on the 

distance education day. So, I guess I would like to see 
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it and I'm surprised it wasn't in here when we talked 

about the definition section related to this. I don't 

know if that's a question for Dave Musser. It wasn't 

really a question. There wasn't a question mark at the 

end of my statement, but I guess I'm trying to understand 

why we're hearing now that those are going to be 

different definitions and different descriptors, but it 

wasn't provided in the red line. And if there's any way I 

would say we can get visibility to that, certainly prior 

to our last week together, I think that'd be helpful as 

negotiators so that we have time to respond.

MS. MANGOLD: David, maybe that 

definition's already in the new regs?

MR. ROBERTS: I do see. Dave, did you 

want to speak to this? I do see your hand is up.

MR. MUSSER: Sure. So I'm going back to 

the existing regulations that define additional location, 

to which we had proposed to add the definition of a 

virtual location. And when you go to 600.2 and the 

definition of an additional location that's currently 

there, the first part of that definition is a physical 

facility that is geographically separate from the main 

campus of the institution. So what I understood our 

attempt to be here was to refer to that one for all nonprison locations. And essentially the prison locations 
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fall under the second part of the additional location 

definition that already exists, which is a federal, 

state, or local penitentiary prison, jail or dormitory, 

etc. So the physical facility concept is baked into the 

existing regulation and we were not proposing to change 

that.

MS. KLEIN: Okay, so I feel like that's 

slightly- you guys, I'm so sorry. This is so painful for 

me. I'm very sorry to be even having this conversation. 

But I feel like what you just said is slightly different 

than I think Donna's answer to my question, which was 

additional location is like that phrase is changing to 

additional physical location. And I'm being a stickler 

about this because it matters to an institution that 

reads this and thinks, oh, additional physical location 

is not defined in 600.2. That must encompass other 

instructional sites, support centers, like whatever, 

because what I would expect to see here would be 

additional location as defined in 600.2.

MR. MUSSER: I just want to confirm my 

understanding of what Jillian’s concern might be here. 

Because when you talk about an additional location as 

defined under 600.2, you're referring to a location at 

which the institution offers at least 50% of a program 

and the Department has long interpreted that to mean, 
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with the Title IV eligible program to Title IV eligible 

students, which for example, would not apply to a high 

school where only students who are enrolled in dual 

enrollment courses would be enrolled. So I think Donna 

and I can talk and see if there is anything else that we 

think we can do with that language. But I want to defer 

back to my accreditation colleagues, but I believe that 

the intent was to refer to the additional location 

concept that's in the 600.2 regulations. But let me make 

sure that that's the case with them.

MS. KLEIN: So I can put this in the 

chat too. And thank you, Dave. I would- so I think an 

easy edit if what you're saying is the intention and we 

don't want to change the definition of additional 

location is if you switch the order in which these words 

appear, physical additional location, I think is very 

clear and doesn't require you to go back and fix 600.2. 

That's just some non-lawyer feedback.

MS. MANGOLD: I had the same reaction, 

Jillian, as I was looking at it.

MR. ROBERTS: Can you add that to the 

chat as well, just so we keep track of that? Thank you. 

We'll take Michael and then it might be time to move to 

the next section of this section. But, Michael, you'll 

have the last word on this.
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MR. CIOCE: Thank you. And I think 

based on Dave's answer and Jillian's question, that 

recommendation may resolve or mollify my comment in the 

introduction of the high schools because that definitely 

helps. But I guess, Dave, maybe this is just more for you 

back on the 50% in the earlier section. I have it on page 

24. It starts on page 23. I think there probably should 

be some clarity around where that 50, both 50%. Right. 

50% of the students and yeah. So that part. The 50% 

threshold for distance offerings. Whether it's Title IV 

eligible. Like I'm struggling to articulate what the 

issue is but where those 50% numbers come from, Title IV 

eligible or not, you know, we look at students in creditbearing and our [inaudible] files and our IR files and 

our state files and everything else, we're not parsing 

out. I say we. The majority of schools probably don't. 

So, I want to throw that caveat back into the mix, and 

maybe the part on (k) gets resolved with the rewording 

and fronting out prison stuff versus the high school-type 

locations. But I just wanted it on the table. So enough 

rambling for me.

MR. ROBERTS: Thank you, Michael. 

Herman, is it okay to- do you want to- I'll turn it back 

to you. Do you want to walk through looking at (l),(m), 

and (n) maybe?
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MR. BOUNDS: Yeah, I think we're going 

to have a lot of discussion maybe on (m). So maybe let's 

just look at- and we just added the addition of a branch 

campus here. I think there's some other discussions later 

about branch campuses. But I did want to ask the 

question. Was there a question about another gentleman 

about where we changed the word all, reviewing all 

additional locations? Was there a question on the 

rationale for that? I just wanted to make sure that I 

didn't miss anybody.

MR. ROBERTS: Scott, did you want to- I 

see you.

MR. DOLAN: Yeah. That was a question. 

I mean, we can also talk about it when we get to (c) 

around the reasonable intervals piece. But yeah it was a 

switch from representative sample to all, so. Yeah. Yeah.

MR. BOUNDS: Yeah, and I'm sorry, 

Scott. Yeah, we just look at- right now when you look at 

a representative sample, I mean, there could be a case 

where recently an additional location especially if an 

agency has an institution that has multiple additional 

locations, they may not ever get looked at during, you 

know, that accreditation process. That's why we put in 

language that would say, you know, based on how the 

agency schedules to review those. And that's what I 
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wanted to make the point. You know, if an agency gives a 

ten-year grant of accreditation at some point within that 

ten-year grant, we would just think it would be important 

for that agency to review all those additional locations. 

Even look at it in the aspect of complaints an agency may 

get in. Say an agency gets, and I know this is all 

hypothetical, but say an agency gets in to complain about 

something that happened at a different location and 

they've never even been out to visit that additional 

location. That could cause some additional issues there, 

too. But that's the main reason the way the language is 

written now. It could be conceivable that that location 

never gets looked at.

MR. DOLAN: I'll withhold because I 

have other questions related to that.

MR. BOUNDS: Yeah, I got you, I got 

you.

MR. DOLAN: So let's just keep going 

and we'll address it there. But thank you, I appreciate 

it.

MR. ROBERTS: So, Herman, is it okay to 

turn to the committee for (l), (m), and (n)? Or do you 

just want to do- you let me know what's going to be 

easiest for you.

MR. BOUNDS: I think let's go to (m) 
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and open up the floor there on (m) because this is one 

area where we asked for feedback for. I think some of the 

language was at the request of some committee folks. So I 

think we just open up for discussion under (m).

MR. ROBERTS: Sounds good. Carolyn, 

take us away.

MS. FAST: Thank you. First, I want to 

thank the Department for looking at this issue, the 

written arrangements with ineligible organizations. What 

we're talking about here, just to make it transparent to 

anyone who might not be familiar with this already. We 

are talking about arrangements with online program 

management companies and coding boot camps and others 

that are often outside companies that, you know, aren't 

subject to the same standards because they're not Title 

IV eligible. And this raises risks for consumers. So 

we're, we appreciate the Department paying attention to 

this provision. And we appreciate the language that's 

added. We note, though, that the Department recently had 

to offer to provide guidance because there was concern 

that some written arrangements with ineligible- or 

institutions are not, complying with requirements about 

the percentage of the program that's being outsourced. In 

other words, too much of the program is being outsourced 

to actually comply with the law, which obviously 
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increases risks for students. So, we would- we have some 

concerns that the Department's proposed changes, while 

helpful, do not explicitly codify this guidance. And we 

think that it is important to do that. To codify the 

agency's obligation to oversee the percentage of a 

program provided under an arrangement with an eligible 

entity. We think there is- there has been research that 

shows that there are problems in this area and that there 

are non-compliant agreements and that the accreditors 

must do more to address this concern to try to protect 

students from abuses that we have seen related to the use 

of these ineligible institutions. We'd like to see 

additional language codifying that in the provision and 

we have proposed some language.

MR. ROBERTS: Thank you, Carolyn. Any 

other comments on letter (m)? A couple of hands. Jamie, 

go ahead. Oh, you're muted by the way. Sorry.

MS. STUDLEY: We did it at the same 

time. I'll let Jillian go first.

MR. ROBERTS: Okay, yeah. Jillian, go 

ahead.

MS. KLEIN: Oh. Thanks. So I'm a tiny 

bit out of my depth here because I don't really know much 

about OPM, so I might be speaking a bit out of school, 

but pun intended. But I don't understand- I understand 
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what you're saying, Carolyn, in terms of the spirit of 

what you're trying to do here, and I think I support it. 

But I don't know that this language does what you're 

saying, and I don't have a suggestion either. But just 

even looking at this. So I'm seeing several different 

words in terms- which I think you're getting at, like an 

entity that's providing instruction. Is that this, I'm 

sorry, Carolyn, I'm asking you this question because I 

think this language came from you, but are you 

specifically concerned about another entity that's 

providing instruction to students?

MS. FAST: Well, an online program 

manager could be involved in recruiting students, for 

example. They could be involved in curriculum 

development. They also could be involved in instruction. 

Essentially, they're outsourcing some of the core program 

functions to another company that is not regulated under 

Title IV or specifically under the accreditation 

standards, which is what causes the risk. So it's not 

just instruction, it's other core services as well.

MS. KLEIN: Okay. So how and again, I 

just have a lot of dumb questions I think because it's 

not my bailiwick. But how if we're not just talking about 

just instruction, which I feel like is maybe cleaner, how 

would an institution or the accreditor calculate the 
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percent that's being offered? If we're talking about like 

recruitment activity, like how- I'm just trying to 

understand how that would get captured in here based on 

the words if it's not just instruction?

MS. MANGOLD: I might be able to help 

clarify. So we cross-reference section 668.5 (c)(3), 

which provides that a school can only outsource up to 25% 

of a program to ineligible entities without accreditor 

approval but it has to get accreditor approval for up to 

50%, so between 25% and 50%. So we're cross-referring to 

what is already required by the Federal regulations and 

asking that accreditors confirm that schools are in fact 

complying with that. So the scope would be whatever's 

already covered by that requirement. The 25% of a 

program. So we'd have to look back at what that means. My 

understanding is, that it's primarily whatever a program 

encompasses which is instructional services.

MS. KLEIN: Which I agree. So I agree 

with that. But I feel like what I heard was slightly 

different, which is recruiting, and other functions and I 

don't the first part, which I agree with you and I 

understand, I think we talked about this, Robyn, you and 

I and others in 2019. So I understand that in terms of 

like the instruction piece and it feels easier to 

calculate, it makes more sense to me if we're talking 
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about like providing instruction of 25 to 50% of the 

program. But I don't understand how an institution. And I 

think part of it is just like there's so many different 

verbs in here, right? Like to deliver a portion of the 

program assessing- like I'm just trying to figure out how 

an institution and an accreditor would be able to 

calculate, interpret, and know what those percentages 

would be if we're talking about something besides just 

instruction. So that's maybe a question for you too. But 

also, Herman since he proposed this.

MR. ROBERTS: I do want to point out

that I think Dave wants to weigh in. I see him. Dave, do 

you want to jump in?

MR. MUSSER: Sure. Just briefly. I do 

think given the conversation here, that there may be an 

intent by Carolyn and the group that submitted that 

proposal to have accrediting agencies look at something 

that is broader than the relationships that are defined 

in 668.5 for written arrangements. A written arrangement 

as defined under 668.5 only involves cases where there's 

actual instruction going on. So those would not include 

relationships that only dealt with, for example, 

recruitment or only dealt in part with instructional 

functions but did not rise to the level of full 

instruction. So if the intent is to address those kinds 
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of practices and those relationships, I think it would be 

necessary to refer to a broader set of contracts and 

relationships than only those contemplated in 668.5. 

Those, as Jillian pointed out, are the ones that create 

the greatest concern for the Department because they 

involve actual instruction and coursework that is Title 

IV eligible. But there are certainly many other functions 

that are surrounding or related to instruction that OPMs 

and other entities provide that aren't necessarily 

captured in the written arrangements definition.

MS. KLEIN: Okay, so that's super 

helpful. Thanks, Dave. I would just suggest that maybe 

the Department can be more clear in some of the language 

here that it's speaking specific to just instructional 

delivery. And then my follow-up question, which is 

probably for Jamie. So just set it up for her. Was I just 

curious? I know, I know, I'm running out of time. Just 

really quick.

MS. K. SMITH: You are- it's at three 

minutes at this point.

MS. KLEIN: Okay, I'll just hop back in 

line. Thanks.

MR. ROBERTS: Thank you. Sorry, Jamie. 

We'll go to you next.

MS. STUDLEY: Sure. Let me speak first 
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to the provision in yellow that the Department is 

offering. The fundamental premise to be aware of is that 

the institution is always responsible for meeting the 

accreditation standards. So however, they get help. If 

they hire a, you know, cleaning service, if they, have a, 

you know, food service provided by somebody, if they ask 

the Museum of Art to, you know, provide an internship 

location or a professor, it's the institution that is 

responsible to meet the standards, and that includes 

anybody that they involve in doing so under all these 

rules. So, what our reaction is that the existing yellow 

language that the Department has added, while it might 

require a little bit of reorganization or reporting that 

accreditors that we're aware of do that and look at those 

conditions in order to make a judgment about a sub 

change. So we may have some wording tweaks but we think 

that the concept is a reasonable one. As to the proposed 

changes, I see two things going on. Robyn has spoken to 

whether there's an intent to broaden the written 

arrangement definition. So, if that's true, that's 

helpful on one score. On the other, it's a fair question, 

but it's not one that requires more regulatory language. 

It's an enforcement question or a follow-up question for 

the Department to ask whether accreditors are doing what 

they're supposed to be doing. I think the expectation 
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that she's describing is already there and that we cloud 

up the regulations if we say multiple times, you should 

do what you were required to do, or the Department should 

make sure you did what you are required to do. If we have 

a problem, we should solve it, but I don't think it's by 

more words in this location it's by learning how to and 

monitoring whether it takes place. So it's not 

unreasonable but just it seems not a good thing to put 

into a regulation. But there certainly is responsibility 

by the institution and the accreditor to review these.

MR. ROBERTS: Thank you, Jamie, and 

thank you, Jillian, go ahead.

MS. KLEIN: Yeah, thanks. My question, 

which it is for the Department, but also if Jamie has 

thoughts on it, I would love to hear them in terms of and 

a little bit she got to this, I think. But the 

Department's expectations in terms of an accreditors 

assessment of the ineligible provider. Is the expectation 

that that assessment relies on the expectations you're 

already putting on accreditors for eligible institutions? 

Is there going to be a different set of expectations the 

Department is proposing in terms of how an accreditor 

assesses and ensures that the ineligible entity is 

complying with the expectations that you have for the 

accreditors? Should we just rely on the standards that 
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you're already expecting accreditors to use for Title IV 

institutions? I'm just unclear in terms of the last part 

of that sentence. What the exact expectation is on the 

accreditor. And then the question a little bit for Jamie 

is like, is that feasible? Is that a thing that typically 

happens and are there concerns with how the accreditor

would do that?

MR. ROBERTS: Herman, do you want to 

weigh in? And Jamie, we'll turn it over to you if you 

want to offer any insight.

MR. BOUNDS: Yeah. I mean, I guess 

there's- I think I need to answer that in two parts. And 

then, you know, I'll welcome any of the accreditors to 

come on. To address I think the first issue is that, you 

know, our regulations have requirements for recruiting 

and admission practices. I just want to talk about that

first. So I think Jamie covered that if. If an 

accrediting agency is conducting an accreditation group 

at an institution and an institution has farmed those 

functions out to someone else, the institution is still 

responsible. So we would expect to see in a site visit 

report a review of an institution's recruiting, admission 

practices, and all those things. And if that other entity 

is somehow substandard, then the institution has to be 

held responsible for that as part of an accreditation 
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review. To get, I guess, to the other part of that 

question, the agency is responsible for ensuring it as it 

is written here, that that ineligible institution has 

that organizational, administrative, or financial 

capability as it's saying there to deliver that program. 

I mean, the program is still responsible to ensure those 

things happen. So. I would just. Yeah. The agency is 

responsible, and the institution is responsible to ensure 

whatever is farmed out is being conducted properly.

MS. KLEIN: So the expectation is that 

just to clarify, we said that the expectation is that the 

agency is going into the ineligible entities [inaudible] 

and doing that review, you know, at to you or whatever. 

I'm sorry. I'm sorry to use that exact name but I'm 

trying to understand what the expectation is exactly.

MR. BOUNDS: Yeah. I mean, the agency 

is responsible for holding the institution to its 

standards. So as part of the review of that institution's 

accreditation standards, if the institution has this 

written arrangement with an ineligible entity, then that 

institution is going to be held responsible to ensure 

that it's meeting the agency's accreditation standards. I 

get what people are thinking. This ineligible entity is 

not the accredited organization. But the institution is 

the accredited organization. And if that institution, 
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based on what it's doing, is not meeting the agency's 

accreditation standards, then the institution is going to 

be held responsible for this.

MS. KLEIN: Okay, so I think I am 

confused more than when I started. So I'm going to say 

one more thing and I'm going to stop talking about this 

because I obviously don't know what I'm talking about. 

But I think if the Department can just be clear and if 

the expectation is that the institution has policies in 

place to ensure these things in their relationship with 

the ineligible provider, or if the expectation is that 

the agency is actually going to the other building of the 

other company and doing a review of that other company. 

Whichever it is, just please be clear about that in here 

because I feel like it reads both ways. And I got more 

confused after I asked the question. So thanks.

MR. ROBERTS: Jamie, did you- I see- do 

you want to weigh in?

MS. STUDLEY: Sure. Thank you. And then 

I'll ask whether Michale or my alternate or Laura wants 

to add as well. I'm not the only one. Jillian makes a 

really good point. And I would explain it exactly the way 

Herman did. That it's the agency's responsibility to hold 

the institution accountable. No, I do not envision us 

visiting every additional location of a third party that 
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is providing something to the institution we accredit. 

But we ask that institution to understand the capacity 

and expertise of someone they're relying on and in their 

proposal to us to get the approval, they would have to 

demonstrate. When I said that we might have some language 

changes, it would be, I think, to provide the clarity 

you're looking for Jillian. Which is that, whether it's 

an assessment of the total package from the institution 

or do we do an independent assessment? It is the first 

that is what we do and is close enough to current 

practice that we are not resisting it, but we do it in 

the context of saying, why do you think this will work? 

And how do you think this total arrangement that you are 

proposing will allow you to deliver a new activity at an 

acceptable level of program support? I think, you know, 

we do not expect to go read the books of a third party,

but we expect to get an answer about why this is an 

acceptable arrangement that meets the sub change

standards. Let me see if- I'll go off-screen so Michale 

can participate.

MR. ROBERTS: Oh, wait. So there's a 

couple of folks that are signing. I see Laura raised her 

hand. And then, Robyn, did you want to add to this 

discussion? Sorry, I'm just trying to keep pulse of. Oh, 

you're muted right now Robyn by the way.
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MS. R. SMITH: Pushing the wrong 

button. Sorry. I feel like the language that we are 

proposing would sort of respond to Jillian's concern, 

which is we are urging the Department to be clear about 

its expectations. We know that there's possibly 

widespread noncompliance going on based on the research 

that I posted. There's also research from 2021 that 

identifies that accrediting agency's policies are 

inadequate. They're not catching this noncompliance and 

they should be. They should be looking beyond sort of 

what an institution says, yes, we have- it's only under 

50% of the program being taught by the OPM. But they need 

to look at underneath those numbers. They need to 

scrutinize those relationships in the matter that they 

deem fit to ensure that schools are, in fact, complying, 

because this is a huge area of potential abuse and 

enormous concern for student advocates. So I think what 

we're proposing is that it be very clear that accrediting 

agencies do a level- some scrutiny and actually confirm 

that what the school represents is what is happening. 

Thanks.

MR. ROBERTS: Thank you. Laura, do you 

want to hop in?

DR. KING: Yeah, I have kind of a 

slightly different question about it. OPMs, I understand 
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what those are and it seems like that's what we're 

talking about. But the way that the language is written

it's pretty broad. And so I'm wanting to clarify, do you 

mean this to cover hospitals, for example, or others that 

are providing clinical instruction for students? That 

might be a question for Herman. Is that the intent of 

this?

MR. BOUNDS: Yeah. I'm probably going 

to ask either, you know, Dave or Donna, to come on. I 

think we're looking at- so I guess it could include a 

hospital or clinic, but I don't think clinic, or a 

hospital are included. Greg, can you come in and speak to 

that?

MR. ROBERTS: Greg's got his hand up. 

Go ahead, Greg.

MR. MARTIN: Yeah. So, I mean, I think 

it's important to understand that, you know, in this 

conversation about, you know, it seems to be skewing 

towards online program managers. And while they certainly 

are part of what can be included in 668.5, it's important 

to note that this certainly goes beyond that. It's broad 

for a reason. And I remember, our Dear Colleague Letter 

2207 was referenced and remember that the title of that 

Dear Colleague Letter. Written arrangements between Title 

IV eligible institutions and ineligible third-party 
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entities. So any time there is an agreement that is 

between an eligible institution and an ineligible 

institution to provide, an eligible entity, I should say, 

to provide education, then the appropriate way to do that 

is through a written arrangement. So it would encompass 

any entity that is a third party that is not eligible. 

And I see Donna has her hand up, so I'll let her address.

MR. ROBERTS: Go ahead, Donna.

MS. MANGOLD: There is also an 

exception at 668.5 (h)(2), that deals with externships 

and internships. And that depends on the amount of 

control the institution itself has over those programs. 

So sometimes the clinical in response to the question 

about clinical, sometimes the clinical issue can be dealt 

with in (h).

DR. KING: Thank you. That's helpful.

MS. MANGOLD: By the age exception 

which would then not apply here.

MR. MARTIN: Yeah. If it's an 

internship or externship arrangement, then it would be 

covered by that exception. It's actual coursework, that's 

different.

DR. KING: Okay. Thank you. That's 

helpful.

MR. MARTIN: Thanks, Donna, for coming 
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in.

MR. ROBERTS: Alright. Thank you, both. 

We'll go to Barmak and then Michale next.

MR. NASSIRIAN: I certainly look 

forward to Jamie's potential edits to this language. But 

I want to emphasize that at least you know my take on it 

indicates that the responsibility is being explicitly 

assigned to accreditors to verify representations made by 

institutions about outsourced instruction. That it is 

insufficient for the, you know, a broad statement that, 

of course, anything institutions are subject to they're 

responsible for regardless of how they choose to execute 

it. That's fine. You can say that. But we see in practice 

that institutions are in fact assigning significant 

responsibilities to entities that have not been vetted, 

that have not gone through the triad, and they're doing 

so subject to this 50% limitation. And we want to be very 

clear that, yeah, you know, you may actually have to 

visit that building. You may actually have to look at 

those curriculum materials. You may actually need to make 

sure that the instructors are qualified. This is very 

similar to, I mean, to just give an analogy to raise our 

concern. You know, you can't have licensure requirements 

for physicians and have a physician go through all of 

that. Begin to practice, hang a shingle, and then choose 
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to spend half of his or her time on the golf course and 

have them hire me to do surgery on patients. That may be 

a good idea, but it seems to me that the licensure board 

should then make sure that maybe I know what I'm doing. 

So it seems to me that this is not simply a matter of 

paper representations made by institutions in a 

formalized written agreement, but also some validation 

that those representations comport with reality. But I do 

look forward to edits if they can improve this and 

clarify it for all participants, that'd be great. Thank 

you.

MR. ROBERTS: Thank you, Barmak. 

Michale, your hands up. I just looked at the time and 

candidly the length of the rest of the document. Would 

folks be okay if this were the final comment on this 

section of 602.22 and then we just take it to the rest 

and then endeavor to move on a little bit before lunch? 

Nods. But Michael, take it away.

MR. MCCOMIS: Look, I won't be labor 

the point. Jamie and I are working on some language that 

tries to do both of those things. And probably breaks 

this- the highlighted language that the Department has 

under (m) into maybe a couple of romanettes that would 

talk about the responsibility being retained by the 

institution. But also the responsibility of the 
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institution to demonstrate that whatever entity that it 

enters into an agreement with has that capacity. As

opposed to putting the assessment responsibility squarely 

on the accreditor because that has issues of authority 

that we may not always be able to exercise. But we have 

that authority over the institution, and we can ask for 

that demonstration and that the institution has the 

responsibility to make that showing that in that 

agreement, they've made those determinations and they 

understand that third party, that contracted entity is in 

fact, you know, parcel of the institution's overall 

accredited schema and therefore has a role to play in its 

ongoing accreditation. So we'll work on that language. 

And I think that we've got something that we might be 

able to share.

MR. ROBERTS: Thank you, Michale. 

Emmett, would you like to be the last word on this 

section?

MR. BLANEY: That'd be great. Thank 

you. Sorry for jumping in on the last second. Just want 

to make sure student perspectives are also heard for this 

specific issue. I just want to kind of refute something 

about the regulations being clear enough already. In 

fact, I would re reference the document that I believe 

Robyn dropped. It has a couple specific case studies. So, 
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if we're looking for more data, there it is. Saying that, 

like, current regulations are not doing enough. So I 

don't feel that it would muddle the regulations to add 

specific language that's requiring accreditors to verify 

that institutions are doing what they're saying they're 

doing. It doesn't feel or it isn't enough to believe them 

when they're telling you that they're conforming to 

what's in the regulation now. If it were working, that 

would be one thing. But it's not working. It's harming 

students. And so, I strongly disagree with the notion 

that adding more language around that would muddle 

current regulations. Thanks.

MR. ROBERTS: Thank you and thank you 

all for that discussion. Herman, with about a little over 

ten minutes before lunch, do you want to take us through 

the rest of 602.22?

MR. BOUNDS: Sure. Let's- we can 

actually go to (b). Because I'm sure there's going to be 

some discussion there. So let's. Yeah, I think we should 

take (b) separately and discuss that language there.

MR. ROBERTS: Yep. Jamie, I see your 

hand first. Do you want to turn on your video if you're 

able to? Okay, go ahead.

MS. STUDLEY: Yeah. On this section the 

most troubling part is subject to a negative action over 
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the past three years. It just seems overbroad. I 

apologize if I mentioned this the last time. You know, in 

general, does the Secretary need these? Are they worth 

the effort? Is a question worth asking about everything. 

But if this remains, the idea of any negative action over 

the previous three academic years unrelated to the 

purpose of the sub change that's made here, no matter how 

narrow and if already fixed and resolved, just seems

unnecessary to the purpose. And if the Secretary would 

have use for this notification and there's a clear need 

for it. It's, you know, so be it. We understand if the 

Department thinks it would be really helpful to know 

about that, but it seems to be too broad.

MR. ROBERTS: Thank you, Jamie. Anyone 

else on the (b)? Not seeing anything new. Yeah, go ahead.

MR. BOUNDS: No, I would just- the main 

reason for this is that, you know, substantive change is 

approved when agencies are under some sort of negative 

action. And we use negative action because some agencies 

may say show cause. They may have a warning status that's 

a negative action. We just think that those things could, 

you know, could put students at risk. And we just think 

that it is important that the agency kind of explain or 

provide information on, you know, their rationale for 

approving that substantive change. I mean, it's again, I 
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think I talked about before, it's akin to what we require 

under 602.28 (c) when an agency decides to accredit 

another institution that might be the subject of a

probationary or some other action by another agency. 

Again, we're willing to listen to any other, you know, 

comments or suggestions here but we just think it's 

important as far as protection for students.

MR. ROBERTS: Anyone else want to offer 

any comments or? Yeah, JoEllen, please.

MS. PRICE: So, in listening to this 

conversation, this is a question for the Department. When 

an institution has a program review and they have an open 

program review when they're going through 

recertification, they are put on provisional 

participation until that program review is concluded. 

Would that be considered a negative action in this broad 

sense?

MR. BOUNDS: I could let- I think I can 

let Donna come on here, but I think that's one of the 

areas listed here. Or is provisionally certified under 

668.13. So I think that may not be under our definition 

of what we consider a negative action under accreditation 

regulations. But I think that was added because that is a 

concern related to Title IV eligibility. I don't know 

Donna if you want to come on and add to that but that's 
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why that was added.

MS. PRICE: Thank you.

MS. MANGOLD: It's a separate category. 

And actually, it is part of the existing regulation on 

substantive change. If it's provisional in existing 

602.22 (b). It talks about provisional.

MR. ROBERTS: Laura, go ahead.

DR. KING: I just think it may be 

helpful to include all of the actions or all of the words 

that you need to include there because negative action 

isn't really a term that we use. It's not really a 

defined term, is it?

MR. BOUNDS: Yeah. You're right, Laura. 

It's not a defined term and the only reason it was 

inserted, again, is because we may list probation show 

cause but then another agency may have, they may have a,

some sort of warning status that they consider to be a 

negative action since it's not defined. So if we list 

some and then we leave one out.

DR. KING: Right. I Think you can 

probably get around that if you said something like 

probation show cause warning or a similar action. Because 

I think then an agency would know what a similar action 

is to probation or show cause or warning, depending on 

what the terminology that they use. But just the term 
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negative action is not, I mean, you know, I might think 

that a compliance report is a negative action. I mean, 

it's not really in the Department's definition but it's 

not a positive action. So I just think it might- there 

might just be better words there that could be more 

specific about what you intend. That's all. Thanks.

MR. ROBERTS: Herman, with about five 

minutes remaining in this AM section of today, do you 

want to tee up letters (c) and (d) maybe? Do just want to 

take us through the remainder of the section? You let me 

know.

MR. BOUNDS: Yeah. Hold on one second 

here. I had another note on (b). One second. I got a 

couple of screens open here. Yeah, I also want to say to 

Laura that under- I think if you look under 602.22 (b), 

there's the reference of negative action there too. So 

that's been existing prior. And again, I just think that 

is because there are so many different things that could 

fall under that, you know, under that definition or 

category. Donna do you have anything to add there? I saw 

you shake your head or something.

MS. MANGOLD: No. I was just looking at 

negative action already existing but if the negotiators 

have language that they would like to, you know, sort of 

a list of those kinds of actions to give us more 
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precision. I know you said, show cause warning or similar 

action. If there's something else to make sure that we're 

capturing everything.

DR. KING: Yeah, I would say probation 

show cause warning or a similar action. Because I think 

those three terms probably encapsulate what the vast 

majority of accreditors use. And they would know if they 

use some other term that is not- that equates to those.

MR. BOUNDS: Yeah, or maybe we could- I 

just want to be sure of the terms. I think we could 

definitely look at that. I just want to make sure we 

don't, you know, leave out a major term or maybe in the 

case of warning. Maybe it's a warning that you're about 

to enter a situation where you're non-compliant which may 

in some cases may not be a negative action, it may be a 

precursor to a negative action. So I just want to be 

careful that we don't include something that's not 

representative of what an agency might consider to be a 

negative action. But I think we can take what people 

suggest and maybe do some research on our own.

MR. ROBERTS: Yeah. There's a little 

bit of continuation in the chat. Some other suggestions. 

Yeah, Jillian.

MS. KLEIN: Thanks. I like Laura's 

recommendation on the language. Just circling back to the 
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provisional certification item. Can the Departmentbecause I know, you guys have been working in this 

industry for way too long. I know in the past, like, 

maybe at least a decade ago, the Department had a 

tendency to use provisional certification in instances 

where, for example, a program review ran long. I think 

this was JoEllen's comment, but like a program review ran 

long or an audit ran long, or the Department was working 

through paperwork. Can the Department serve here on the 

record, attest that that's not the practice anymore, and 

that provisional certification is only being used in 

instances where there is actually a risk that's happening 

at the institution? Because if that's the case, then I 

think I can maybe get to a place where I'm okay with 

this. But I know that's not consistently been the 

practice of the Department.

MS. MANGOLD: I can speak to that. 

Provisional certification is used for a wide variety of 

things, including following a change of ownership 

[inaudible] provisional. So, I cannot commit on the 

record that it's not being used for a wide variety of 

things.

MS. KLEIN: Okay, so then I'm 

uncomfortable with this language because I think if it's 

being used for anything except actual risk at the 
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institution. And I will even give on change of ownership, 

and I mean I think it's fine if you want to use that as a 

lever for provisional, but I think I have personally seen 

other instances where the Department has used provisional 

certification in instances where the institution is 

literally just waiting for the Department to make a 

decision about something that is not a compliance issue, 

or the Department is behind due to staffing issues or 

whatever. And so given that that continues to be what I 

understand you're saying, potentially current practice, I 

have concerns about how this language is written.

MS. MANGOLD: 668.13 the reference to 

that is in the existing 602.22. If there is some language 

that the negotiators want to suggest, we will consider 

whatever is submitted.

MR. ROBERTS: Okay. I'm glancing at the 

clock right now. I think we do need to take our scheduled 

lunch break. Carolyn, we'll pick up with you at one. I 

will just say thank you all. I know this was this was a 

lot of discussion. I appreciate everyone, and their 

diligence and the comments that they made. For the 

public, as it's been this week, there's a new link for 

the afternoon session. So this link will not work. The 

live viewing link that you're using will cease when we go 

off live. So you can pick that up at 1:00 p.m. But 
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without any other housekeeping items, we'll see everyone 

at 1:00 pm eastern. Thank you all. 

 
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Zoom Chat Transcript

Program Integrity and Institutional Quality- Session 2, Day 4, Morning, February 8, 2024

*Chat was copied as presented, as a result minor typos or grammatical errors may be present.

From A, Magin Sanchez, Civil Rights/Consumer to Everyone:

Can we have a temperature check on neg-reg versus reg-neg?

From P, Jillian Klein, Proprietary Instit to Everyone:

Reacted to "Can we have a temper..." with �������

From A, Emmett Blaney, Students/Borrowers to Everyone:

Reacted to "Can we have a temper..." with ���

From A - Zack Goodwin (he/him), Financial Aid Administrators to Everyone:

Reacted to "Can we have a temper..." with �������

From A-Alyssa Dobson, 4Yr. Public Institutions to Everyone:

Reacted to "Can we have a temper..." with �������

From Carolyn Fast to Everyone:

Reacted to "Can we have a temper..." with �������

From A, Emmett Blaney, Students/Borrowers to Everyone:

Reacted to "Can we have a temper..." with �������

From A, Emmett Blaney, Students/Borrowers to Everyone:

Removed a ��� reaction from "Can we have a temper..."

From Krystil Smith | FMCS Facilitator to Everyone:

Please remember your naming conventions

From P. JoEllen Price, Financial Aid Administrators to Everyone:

Reacted to "Can we have a temper..." with �������

From Jamienne Studley to Everyone:

also early for Robyn!

From Robyn Smith, Legal Aid orgs. to Everyone:

Happy I can sleep in a little tomorrow!

From A, Scott Dolan, Private Nonprofit IHEs to Everyone:

the challenge is that the language might only be speaking to four year programs.

From A - Zack Goodwin (he/him), Financial Aid Administrators to Everyone:

Reacted to "the challenge is tha..." with ���
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From P, Jillian Klein, Proprietary Instit to Everyone:

On 602.20(b), I recommend ED strike ".. the lesser of four years" and keep "must not 

exceed 150 percent of the --"

From P, Jamie Studley, Institutional Accreditors to Everyone:

can the department share the test for a good cause extension?

From A, Scott Dolan, Private Nonprofit IHEs to Everyone:

Reacted to "can the department s..." with ���

From P, Jillian Klein, Proprietary Instit to Everyone:

I would also recommend that ED strike in 602.20(c) "for a maximum of one additional year" 

in the absence of data to support

From A-Alyssa Dobson, 4Yr. Public Institutions to Everyone:

Reacted to "I would also recomme..." with ���

From A - Zack Goodwin (he/him), Financial Aid Administrators to Everyone:

Reacted to "I would also recomme..." with ���

From A - Zack Goodwin (he/him), Financial Aid Administrators to Everyone:

Reacted to "can the department s..." with ���

From A - Zack Goodwin (he/him), Financial Aid Administrators to Everyone:

Reacted to "On 602.20(b), I reco..." with ���

From P. JoEllen Price, Financial Aid Administrators to Everyone:

Reacted to "I would also recomme..." with ���

From P. JoEllen Price, Financial Aid Administrators to Everyone:

Reacted to "On 602.20(b), I reco..." with ���

From P, Jillian Klein, Proprietary Instit to Everyone:

David Cohen will join the table to ask a question for proprietary institutions

From P - Erika Linden, Private Nonprofit IHEs to Everyone:

Scott Dolan entering for Private Nonprofits

From A, Michael Cioce, 2 Year Colleges to Everyone:

I read the "hardship" as being tied to the timing - if the 150% of time falls in the middle of a 

semester, schools would want to tie things to the end of a term

From A - Zack Goodwin (he/him), Financial Aid Administrators to Everyone:

Reacted to "I read the "hardship..." with ���

From A-Michale McComis, Inst. Accreditors to Everyone:
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The normal application of transfer of credit limits that could adversely affect students in a 

school closure situation is an example.

From A, Scott Dolan, Private Nonprofit IHEs to Everyone:

Erika can step back in

From P - Erika Linden, Private Nonprofit IHEs to Everyone:

Scott Dolan will return to the table for Private Nonprofits

From A-Michale McComis, Inst. Accreditors to Everyone:

For the Department's Consideration:

From P, Jamie Studley, Institutional Accreditors to Everyone:

Facilitators: might it be possible to do these item by item, otherwise we could swirl through 

a wide variety of topics?

From P, Jillian Klein, Proprietary Instit to Everyone:

Replying to "Facilitators: might ..."

Yes please! This!!

From P. JoEllen Price, Financial Aid Administrators to Everyone:

Reacted to "Facilitators: might ..." with ���

From A-Alyssa Dobson, 4Yr. Public Institutions to Everyone:

Reacted to "Facilitators: might ..." with ���

From A, Scott Dolan, Private Nonprofit IHEs to Everyone:

Replying to "Facilitators: might ..."

i agree

From A-Michale McComis, Inst. Accreditors to Everyone:

For the Department's Consideration: §602.20 Enforcement of standards. 

(a) ***

(1) Immediately initiate adverse action against the institution or program when the agency 

has determined that such action is warranted; or... This will help with due process requirements 

both of the Department and legal challenges

From P, Jamie Studley, Institutional Accreditors to Everyone:

isn't the concept of adequate inherent everywhere in the regulations?

From P., Diana Hooley, State Attorneys General to Everyone:

I agree with Barmak's comment to reinstate "adequate" in the language.

From A, Emmett Blaney, Students/Borrowers to Everyone:
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+1 to Barmak. Writing in chat for posterity: 602.22 (a)(1) “Adequate written substantive 

change” rather than “Written substantive change”

From A-Alyssa Dobson, 4Yr. Public Institutions to Everyone:

Reacted to "isn't the concept of..." with ���

From P - Carolyn Fast, Civil Rights/Consumer to Everyone:

Reacted to "+1 to Barmak. Writin..." with ���

From P., Diana Hooley, State Attorneys General to Everyone:

Reacted to "+1 to Barmak. Writin..." with ���

From A, Scott Dolan, Private Nonprofit IHEs to Everyone:

just to be clear. all for all programs except prison education programs?

From A, Magin Sanchez, Civil Rights/Consumer to Everyone:

Reacted to "+1 to Barmak. Writin..." with ���

From (P) Barmak Nassirian, Veterans & Mil. Students to Everyone:

Responding to Jamie's point about "adequate" being inherent throughout, that may be, but 

"adequate" is used in description of faculty and facilities, description of standards, description of 

opportunities for public comment, etc. throughout the text. Removing it here would create a strong 

presumption that any written policy would satisfy the reg.

From A, Scott Dolan, Private Nonprofit IHEs to Everyone:

agreed about the importance of ensuring we are focusing our efforts. given the 

department's goal of protecting students from significant changes that may impact the institution's 

resources and capacity.

From P. JoEllen Price, Financial Aid Administrators to Everyone:

Could it be because high school students do not qualify for title IV aid?

From P, Jamie Studley, Institutional Accreditors to Everyone:

indeed, why only first two prison locations and MORE review of other types of locations?

From A, Scott Dolan, Private Nonprofit IHEs to Everyone:

Reacted to "indeed, why only fir..." with ���

From A-Alyssa Dobson, 4Yr. Public Institutions to Everyone:

Reacted to "indeed, why only fir..." with ���

From P, Jillian Klein, Proprietary Instit to Everyone:

On proposed 602.22(K), I propose the language begin with "The addition of a physical 

additional location, provided ... "

From A - Zack Goodwin (he/him), Financial Aid Administrators to Everyone:
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Reacted to "On proposed 602.22(K..." with ���

From A-Alyssa Dobson, 4Yr. Public Institutions to Everyone:

Maintaining accreditation is important and as such, is also expensive, that said creating the 

requirement to visit all locations will increase that cost. Anytime our costs go up, they eventually 

reach the students pockets. What value does visiting all sites rather than a representative sample 

bring to the process?

From Robyn Smith, Legal Aid orgs. to Everyone:

Here is the Department’s guidance: https://fsapartners.ed.gov/knowledgecenter/library/dear-colleague-letters/2022-06-16/written-arrangements-between-title-iv-eligibleinstitutions-and-ineligible-third-party-entities-providing-portion-academic-program

From Robyn Smith, Legal Aid orgs. to Everyone:

Here is some research re non-compliance by major OPM provider: 

https://tcf.org/content/report/outsourcing-online-higher-ed-guide-accreditors/

From (P) Barmak Nassirian, Veterans & Mil. Students to Everyone:

+1 on Carolyn's point

From Robyn Smith, Legal Aid orgs. to Everyone:

Here is our proposed language: The agency must also confirm that, for a written 

arrangement between an eligible institution and an ineligible institution or organization, the 

arrangement complies with limitations on the amount of the program that the ineligible institution 

or organization provides as described in 34 CFR 668.5(c)(3).

From Robyn Smith, Legal Aid orgs. to Everyone:

We do not intend to go broader than 34 CFR 668.6(c)(3).

From A, Scott Dolan, Private Nonprofit IHEs to Everyone:

agreed with Jillian that clarity is important here

From Robyn Smith, Legal Aid orgs. to Everyone:

Sorry, 668.5(c)(3).

From A, Scott Dolan, Private Nonprofit IHEs to Everyone:

important point here by Jami. institutional responsibility

From Robyn Smith, Legal Aid orgs. to Everyone:

And one other source of research regarding non-compliance issues: 

https://tcf.org/content/commentary/its-time-to-make-repairs-to-online-higher-ed/

From P, Jillian Klein, Proprietary Instit to Everyone:

Per my earlier comment, my recommendation to ED is that they clarify in this section that 

they are speaking specifically to an ineligible entity offering instruction. There are a lot of different 

verbs here ("offers," "deliver," etc) that I think make it sufficiently unclear what the intention is.
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From Donna Mangold - ED OGC to Everyone:

Here is the link to 668.5 https://www.ecfr.gov/current/title-34/section-668.5

From (P) Barmak Nassirian, Veterans & Mil. Students to Everyone:

Appreciate Michale's comment but have to point out that jurisdiction is not an issue: if a 

third-party does not voluntarily agree to allow the accreditor to validate an eligible institution's 

representations, the accreditor can deny the institution's request. "Trust, but verify"

From P., Diana Hooley, State Attorneys General to Everyone:

Concur that ensuring oversight by accreditors of institutions utilizing OPMs is an important 

step to protecting consumers.

From A, Scott Dolan, Private Nonprofit IHEs to Everyone:

in agreement that there is more we can do for oversight of written arrangements. I look 

forward to proposed language from Jami. And all due respect to the provided links and their 

authors, but I am not certain what was shared was truly research. Seems more like a blog post with 

some examples of issues that have arisen. With that said, I am open to a conversation about how 

we enforce good practice

From P, Jamie Studley, Institutional Accreditors to Everyone:

Probation or equivalent would include show cause if it' serious. A vague word like negative 

plus 3 years just seems overbroad.

From A - Zack Goodwin (he/him), Financial Aid Administrators to Everyone:

Reacted to "Probation or equival..." with ���

From P, Jamie Studley, Institutional Accreditors to Everyone:

Laura said it well.

From A, Scott Dolan, Private Nonprofit IHEs to Everyone:

Reacted to "Laura said it well." with ���

From P, Jamie Studley, Institutional Accreditors to Everyone:

use "equivalent" v similar so that it doesn't broaden or become more vague

From (P) Barmak Nassirian, Veterans & Mil. Students to Everyone:

negative action conveys the meaning well. Enumeration is a trap because some accreditors 

may simply revise their current nomenclature to evade the reg

From A, Emmett Blaney, Students/Borrowers to Everyone:

Reacted to "negative action conv..." with ���

From P - Carolyn Fast, Civil Rights/Consumer to Everyone:

Reacted to "negative action conv..." with ���

From P, Jamie Studley, Institutional Accreditors to Everyone:

"Warning" when it is a formal action indicating non-compliance v a plain language 

"warning"
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From A - Zack Goodwin (he/him), Financial Aid Administrators to Everyone:

Replying to "negative action conv..."

 

I think this would help to address the issue raised by JoEllen and Jillian -- being provisional 

due to a delay or similar non-compliance-related issue should not be considered negative.