[Federal Register Volume 59, Number 82 (Friday, April 29, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-10147]
[[Page Unknown]]
[Federal Register: April 29, 1994]
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Part III
Department of Education
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34 CFR Part 602
Secretary's Procedures and Criteria for Recognition of Accrediting
Agencies; Final Rule
DEPARTMENT OF EDUCATION
34 CFR Part 602
RIN 1840-AB82
Secretary's Procedures and Criteria for Recognition of
Accrediting Agencies
AGENCY: Department of Education.
ACTION: Final regulations.
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SUMMARY: The Secretary amends the regulations governing the Secretary's
recognition of accrediting agencies in order to implement provisions
added to the Higher Education Act of 1965 (HEA) by the Higher Education
Amendments of 1992, and the Higher Education Technical Amendments of
1993. The purpose of the Secretary's recognition of accrediting
agencies is to assure that those agencies are, for HEA and other
Federal purposes, reliable authorities as to the quality of education
or training offered by the institutions of higher education or higher
education programs they accredit.
EFFECTIVE DATE: These regulations take effect on July 1, 1994, with the
exception of Secs. 602.4, 602.10, and 602.27. These sections will
become effective after the information collection requirements
contained therein have been submitted by the Department of Education
and approved by the Office of Management and Budget under the Paperwork
Reduction Act of 1980. If you want to know the effective date of these
regulations, call or write the Department of Education contact person.
A document announcing the effective date will be published in the
Federal Register.
FOR FURTHER INFORMATION CONTACT: Karen W. Kershenstein, U.S. Department
of Education, 400 Maryland Avenue, SW., room 3036, ROB-3, Washington,
DC 20202-5244. Telephone: (202) 708-7417. Individuals who use a
telecommunications device for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8
p.m., Eastern time, Monday through Friday.
SUPPLEMENTARY INFORMATION: In order to approve a postsecondary
education institution to participate in the student financial
assistance programs authorized under Title IV of the HEA (referred to
as ``Title IV, HEA programs'') and many other Federal programs, the
Secretary must determine, in part, that the institution satisfies the
statutory definition of an ``institution of higher education.'' Under
the HEA and many other Federal statutes, one element of that definition
requires an eligible institution of higher education to be accredited
or preaccredited by an accrediting agency recognized by the Secretary
as a reliable authority as to the quality of the education or training
provided by the institution. Another element requires an eligible
institution to be legally authorized to provide an education program
beyond the secondary level in the State in which it is located. In
addition, to participate in the Title IV, HEA programs, the institution
must be certified by the Secretary as administratively capable and
financially responsible. Thus, the HEA provides the framework for a
shared responsibility among accrediting agencies, States, and the
Federal government to ensure that the ``gate'' to Title IV, HEA
programs is opened only to those institutions that provide students
with quality education or training worth the time, energy, and money
they invest in it. The three ``gatekeepers'' sharing this
responsibility have traditionally been referred to as ``the triad.''
While the concept of a triad of entities responsible for
gatekeeping has had a long history, originating in 1952, the Higher
Education Amendments of 1992, Public Law 102-325, significantly
increased the gatekeeping responsibilities of each member of the triad.
Specifically, Congress amended the HEA to provide for a new part H of
Title IV entitled ``Program Integrity Triad.'' Under the new part H,
the requirements that accrediting bodies must meet if they are to be
recognized by the Secretary as ``gatekeepers'' for Title IV or other
Federal purposes are specified in detail. Part H also provides a new
oversight responsibility for States: The State Postsecondary Review
Program. Altogether, part H establishes a set of responsibilities for
accrediting agencies, States, and the Secretary that creates a stronger
and more coordinated evaluation of institutions that participate, or
wish to participate, in the Title IV, HEA programs.
The Secretary recognizes that the approach to significantly
increased gatekeeping activity outlined in the statute for the three
members of the triad is a new one. This approach will require
leadership in both implementation and evaluation if it is to achieve
the effectiveness that Congress intended. The Secretary will take steps
to assure that the various responsibilities of the triad members are
carried out in a manner that, in fact, results in the identification of
institutions that should not be eligible to participate in the Title
IV, HEA programs, on the basis of either the quality of education they
offer or their inability to handle program funds. At the same time, the
Secretary is committed to carrying out the responsibility for
coordinating the activities of the triad members that are inherent in
the statute in a manner that causes the least burden to institutions
participating in the Title IV, HEA programs.
To these ends, the Secretary is committed to effective management
of the gatekeeping function. The Secretary will review carefully the
applications of accrediting bodies and the standards and operating
plans proposed by State Postsecondary Review Entities (SPREs) under the
State Postsecondary Review Program to insure that they meet the
requirements of the statute and these regulations and will enable these
triad agencies to fulfill their statutory purposes. The Secretary will
also place a priority on the completion of the ``Postsecondary
Education Participation System,'' the Department's new integrated data
base, which will contain the information that the Secretary generates
in the course of the Secretary's oversight of institutions
participating in Title IV, HEA programs. The Secretary will use the
data base to inform accrediting bodies and SPREs of actions taken by
the Secretary so that they may in turn carry out their
responsibilities. This expanded data base is also critical to the
Secretary's effective selection of institutions for program review.
Monitoring the results of the gatekeeping process is a very
important key to effective management. The Secretary will evaluate the
activities of accrediting agencies, SPREs, and the Department to
determine their effectiveness in improving the integrity of
institutions participating in Title IV programs and will take such
steps as may be indicated to improve the results. Finally, as provided
in the statute, the Secretary will seek the advice and counsel of the
National Advisory Committee on Institutional Quality and Integrity in
evaluating the effectiveness of the triad.
The Secretary believes that the approach best suited to achieving
the objectives of the statute is a complementary one, with each member
of the triad focusing its evaluation on its obligations within the
context of the HEA. Thus, the focus for accrediting agencies is the
quality of education or training provided by the institutions or
programs they accredit. States, in addition to providing the legal
authority to operate within the state required for participation in the
Title IV, HEA programs, will review institutions that meet certain
statutory review criteria related to institutional performance in the
Title IV, HEA programs. The focus of the Secretary's evaluation of
institutions is on the administrative and financial capacity of those
institutions to participate in the Title IV, HEA programs.
While the functions and responsibilities of each of the triad
members are generally different, the statute does require, in some
instances, that all members of the triad evaluate similar areas. For
the most part, the principle of complementary functions will lead to
the members evaluating those same areas from different perspectives for
different purposes. For example, all three of the triad members are
required to examine the finances of an institution. If each looks at
financial strength from a perspective complementary to that of the
others, accrediting agencies would focus principally on the capacity of
the institution to continue to offer programs at a level of quality
sufficient to meet accrediting agency standards and to fulfill the
institution's mission over a 5-10 year period of accreditation. The
emphasis of a review by a SPRE would be on whether or not the
institution possesses the full range of resources needed to serve
students currently attending the institution. The Secretary's
responsibilities focus on the institution's finances in light of its
ability to provide the services described in its official publications
and statements, to provide the administrative resources necessary to
comply with its Title IV, HEA program responsibilities, and to meet all
of its financial obligations, including, but not limited to, refunds of
institutional charges and repayments to the Secretary for liabilities
and debts incurred in programs administered by the Secretary.
Despite the Secretary's efforts to encourage complementary
functions for each of the triad members, it is theoretically possible
that, in some instances, an institution could be subject to three
different standards regulating the same area of operation. For this
reason, where a Title IV standard has been promulgated at the Federal
level, the Secretary expects accrediting agencies and States to take
this into account in establishing their own standards to insure that
varying standards do not pose an unnecessary burden on institutions. It
is also important that accrediting agencies and States not impose any
standard that is weaker than a comparable Title IV, HEA program
standard. The Secretary believes coordination of this is a federal
responsibility.
In view of the complementary approach to the functions of the triad
members, the Secretary believes, for example, that institutions should
not have to develop different methodologies to provide data that the
three members of the triad may require. The Secretary also believes
that, to the extent feasible, any other requests for data about the
institution, its students, or its graduates should rely on information
already in the institution's possession. To that end, the Secretary
expects accrediting agencies and States either to accept student data
based on the methodology that will be specified in the regulations
governing ``Student Right to Know,'' also mandated by the Higher
Education Amendments of 1992, or, where the institution may have other
methodologies for calculating data, such as a system designed to
provide data to a State higher education commission or other State
agency, to accept data in the format already being used by the
institution. Similarly, the Secretary expects accrediting agencies and
SPREs to use the audited financial statements institutions are now
required to provide to the Secretary on an annual basis to the extent
those statements are compatible with the nature of the reviews
conducted under their respective standards.
The Secretary also recognizes that other Federal agencies, such as
the Department of Labor and the Veterans Administration, also regulate
institutions in some areas that are similar to those included in part
H. The suggestion has been made that the Secretary should promulgate
Federal standards in the areas of overlap so that institutions would
not be subject to varying standards developed by other Federal agencies
and the triad members. However, the Secretary interprets part H as
permitting States and accrediting agencies to establish their own
standards, as opposed to using a Federal standard, and also believes
that this is the most effective approach. In addition, it is not clear
how the requirements of the different agencies are compatible with the
requirements of part H. The purposes of these programs administered by
other agencies may be very different. As a result, the Secretary has
not pursued this alternative. The Secretary does believe that it would
be useful to explore how the varying requirements of other Federal
agencies that are similar to those of part H might be coordinated to
reduce any burden on institutions and will initiate such exploration.
The Secretary believes that, where possible, data developed at the
national level should be made available to institutions, as well as to
States and accrediting agencies to assist them in carrying out their
responsibilities under part H. In particular, data concerning labor
markets and compensation for specific fields and information concerning
graduation and withdrawal rates at various types of institutions may be
helpful to both triad members and institutions. The Secretary will
facilitate the development of this type of information and, where
possible under the auspices of the Department, will coordinate the
development of data that will be helpful to institutions and the triad.
Finally, as part of the commitment to providing leadership to the
triad, the Secretary will convene representatives of the triad members
and institutions to exchange information about the gatekeeping process
and to discuss how the triad is functioning, both in identifying
institutions whose performance is questionable and in reporting
requirements that have proven to be unreasonably burdensome. The
Secretary invites comments concerning the functioning of the triad, as
it is implemented through these and other regulations governed by part
H. The Secretary will seek improvement, where possible, within existing
regulations and will propose modifications to regulations and to the
statute itself if experience indicates those changes are both necessary
to achieve effective gatekeeping, with minimal burden, and compatible
with the need to maintain, and assure the public of, the integrity of
the Title IV, HEA programs.
On January 24, 1994, the Secretary published a notice of proposed
rulemaking (NPRM) for part 602 in the Federal Register (59 FR 3578).
The NPRM included, on pages 3578-3601, a thorough discussion of the
major issues addressed by the proposed regulations. The following is a
brief summary of the major proposed changes to the Secretary's
Procedures and Criteria for Recognition of Accrediting Agencies that
were contained in the NPRM.
1. As required by section 496(m) of the HEA, the proposed
regulations authorized the Secretary to recognize only those
accrediting agencies that accredit institutions of higher education or
higher education programs for the purpose of enabling those
institutions or programs to establish eligibility to participate in
programs administered either by the Secretary or by other Federal
agencies.
2. As required by section 496(a) of the HEA, the proposed
regulations required accrediting agencies whose accreditation enables
the institutions they accredit to participate in programs authorized
under the HEA to be administratively and financially separate from and
independent of any related, associated, or affiliated trade association
or membership organization. In accordance with the statute, the
proposed regulations allowed the Secretary to waive this requirement
under certain conditions.
3. The proposed regulations added two new steps to the process by
which accrediting agencies are recognized by the Secretary. First, the
Secretary proposed to give an agency seeking recognition the
opportunity to respond in writing to the designated Department
official's analysis of its application for recognition before the
application was reviewed by the National Advisory Committee on
Institutional Quality and Integrity. Second, after the Advisory
Committee's review of the agency's application and recommendation to
the Secretary, the Secretary proposed to give both the agency and the
designated Department official an opportunity to contest the Advisory
Committee's recommendation.
4. In accordance with section 496(n) of the HEA, the proposed
regulations permitted the Department, at the Secretary's discretion, to
conduct unannounced site visits to an accrediting agency or its member
institutions or programs as part of the Department's analysis of the
agency's application for recognition or its compliance with the
requirements for recognition.
5. In accordance with section 496(l) of the HEA, the proposed
regulations allowed the Secretary to limit, suspend, or terminate an
agency's recognition if the Secretary determined that the agency failed
to meet the requirements for recognition.
6. The proposed regulations eliminated the provision contained in
previous regulations that, in order to demonstrate experience in
accreditation, an agency had to demonstrate that its policies,
evaluation methods, and decisions were accepted throughout the United
States by recognized accrediting agencies.
7. As required by section 496(c)(1) of the HEA, the proposed
regulations required an accrediting agency whose accreditation enables
the institutions it accredits to participate in programs authorized
under the HEA to conduct, in addition to its regular announced on-site
review of an institution, at least one unannounced on-site review of
each institution that provides prebaccalaureate vocational education or
training.
8. The proposed regulations required accrediting agencies to assess
any new or substantively changed program before including it in the
agency's previous grant of accreditation.
9. As required by section 496(a)(5) of the HEA, the proposed
regulations required accrediting agencies to have standards that assess
curricula; faculty; facilities, equipment and supplies; fiscal and
administrative capacity as appropriate to the specified scale of
operation; student support services; recruiting and admissions
practices, academic calendars, catalogs, publications, grading and
advertising; program length and tuition and fees in relation to the
subject matters taught and the objectives of the degrees or credentials
offered; measures of program length in clock hours or credit hours;
success with respect to student achievement in relation to the
institution's mission; default rates in student loan programs under
Title IV of the HEA; record of student complaints received by, or
available to, the accrediting agency; and the institution's compliance
with its program responsibilities under Title IV of the HEA.
10. As required by section 484B of the HEA, the proposed
regulations required accrediting agencies to have a standard that
assesses an institution's practice of making refunds to students.
11. The proposed regulations required an accrediting agency to take
adverse action against an institution or program that failed to bring
itself into compliance with agency standards within a time frame
established by the agency. The proposed regulations permitted this time
frame to exceed 18 months only for cause.
12. As required by section 496(c) of the HEA, the proposed
regulations required accrediting agencies whose accreditation enables
institutions to participate in Title IV, HEA programs to take special
action whenever institutions establish new branch campuses.
Specifically, agencies must approve a business plan for the branch
before its opening and conduct an on-site review within six months.
13. As required by section 496(c) of the HEA, the proposed
regulations required accrediting agencies to conduct an on-site review
within six months at any institution that undergoes a change in
ownership that results in a change in control.
14. As required by section 496(c) of the HEA, the proposed
regulations required that any institution that enters into a teach-out
agreement with another institution must agree to submit to its
accrediting agency for approval a teach-out agreement that is
consistent with applicable standards and regulations.
Changes Resulting From Public Comment
As a result of the comments received concerning the NPRM, and as
discussed in detail in the appendix, the Secretary has made the
following significant changes in the final regulations.
1. The term ``prebaccalaureate vocational education'' has been
deleted from these final regulations. The term ``vocational education''
has been redefined to be ``an instructional program, below the
bachelor's level, designed to prepare individuals with the skills and
training required for employment in a specific trade, occupation, or
profession related to the instructional program.'' This definition is
consistent with that used for the term ``vocational program'' in the
final regulations governing the State Postsecondary Review Program.
This definition was chosen because it is basically the same as the
Integrated Postsecondary Education Data System (IPEDS) glossary
definition of an ``occupationally specific program,'' and institutions
already use this term in reporting enrollment data for various types of
vocational education. The advantage in using this definition is that
the IPEDS inventory of occupationally specific programs provides a list
of instructional programs which, if offered by an institution, subject
the institution to an unannounced inspection by its accrediting agency.
2. A new section, Sec. 602.5--Notice to accrediting agencies of
Federal actions, has been added that provides for the Secretary to
notify an accrediting agency if the Secretary takes an action against
an institution or program accredited by the agency, if the Secretary
learns of an action taken by another Federal agency against the
institution or program, or if the institution is referred for review
under the State Postsecondary Review Program.
3. Time frames have been added for the designated Department
official to provide an accrediting agency with the staff analysis of
its application for recognition and for the agency to respond to that
analysis, if it so desires.
4. The provision that an accrediting agency may request that the
Secretary reconsider a decision to deny recognition or to limit,
suspend, or terminate the agency's recognition during the recognition
period has been deleted.
5. The requirement that institutional accrediting agencies must
conduct unannounced site visits to institutions that offer
prebaccalaureate vocational education has been replaced with a
requirement that those agencies must conduct unannounced inspections at
each institution that offers vocational education for the purpose of
determining whether, at a minimum, the institution has the personnel,
facilities, and resources it claimed to have either during its most
recent on-site review by the accrediting agency or in subsequent
reports to the agency. Accrediting agencies are free to determine the
procedures for conducting the unannounced inspections. An unannounced
inspection does not have to be as comprehensive as an agency's full
accreditation or preaccreditation review of an institution or program
unless the agency wishes it to be.
6. The substantive change requirement has been revised to clarify
the types of changes that require prior approval by an accrediting
agency before they can be included in the institution's accreditation.
The substantive change requirement applies only to institutional
accrediting agencies.
7. The specific language included in the NPRM for each of the 12
required accreditation standards has been deleted. The section now
simply repeats the statutory language for each required standard.
8. The requirement that accrediting agencies must have a standard
that assesses an institution's practice of making refunds to students
has been eliminated.
9. The time limit for institutions or programs to come into
compliance with agency standards has been changed. For programs of less
than one year in length, the time limit is now 12 months. For programs
that are at least one year in length but less than two years, the time
limit is 18 months. For programs that are at least two years in length,
the time limit is 24 months.
10. A requirement has been added that accrediting agencies must
notify the Secretary at the same time they notify an institution or
program of a final adverse accrediting action.
Analysis of Comments and Changes
In response to the Secretary's invitation in the NPRM, more than
1800 parties submitted comments on the proposed regulations. An
analysis of the comments and of the changes in the regulations since
publication of the NPRM is published as an appendix to these final
regulations. Included in this analysis are comments received during
several public hearings and other meetings held by the Department
throughout the United States for purposes of obtaining comment on the
proposed regulations.
Executive Order 12866
These final regulations have been reviewed in accordance with
Executive Order 12866. Under the terms of the order, the Secretary has
assessed the potential costs and benefits of this regulatory action.
The potential costs associated with the final regulations are those
resulting from statutory requirements and those determined by the
Secretary to be necessary for effective and efficient administration.
In assessing the potential costs and benefits--both quantitative
and qualitative--of these regulations, the Secretary has determined
that the benefits of the regulations justify the costs.
Paperwork Reduction Act of 1980
Sections 602.4, 602.10, and 602.27 of these regulations contain
information collection requirements. In addition, Sec. 602.21(b)(7)
contains specific record retention requirements. As required by the
Paperwork Reduction Act of 1980, the Department of Education has
submitted a copy of these sections to the Office of Management and
Budget for its review. (44 U.S.C. 3504(h))
The annual reporting burden for this collection of information is
estimated to be 47 hours per respondent, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. This annual reporting estimate takes into
account the fact that the average recognition period granted to
accrediting agencies is five years. The total annual reporting burden
for the estimated 96 respondents is 4,512 hours.
Organizations and individuals desiring to submit comments on the
information collection requirements should direct them to the Office of
Information and Regulatory Affairs, OMB, room 3002, New Executive
Office Building, Washington, DC 20503; Attention: Daniel J. Chenok.
Comments must be received by May 31, 1994.
Assessment of Educational Impact
In the NPRM, the Secretary requested comments on whether the
regulations in this document would require transmission of information
that is being gathered by or is available from any other agency or
authority of the United States. Based on the response to the proposed
regulations and on the Department's own review, the Secretary has
determined that these regulations do not require the transmission of
information concerning accrediting agencies that is being gathered by
or is available from any other agency or authority of the United
States. Where specific provisions of these regulations require the
transmission of information concerning institutions or programs that is
similar to that being collected by the Department for other purposes,
such as for the State Postsecondary Review Program or the Department's
review of institutions seeking to become certified to participate in
the Title IV, HEA programs, these regulations have been modified to
minimize the burden on institutions. A detailed discussion of the
changes to the regulations is provided in the appendix to these
regulations.
List of Subjects in 34 CFR Part 602
Colleges and universities, Education, Reporting and recordkeeping
requirements.
(Catalog of Federal Domestic Assistance Number does not apply.)
Dated: April 20, 1994.
Richard W. Riley,
Secretary of Education.
The Secretary amends title 34 of the Code of Federal Regulations by
revising part 602 to read as follows:
PART 602--SECRETARY'S PROCEDURES AND CRITERIA FOR THE RECOGNITION
OF ACCREDITING AGENCIES
Subpart A--General Provisions
Sec.
602.1 Purpose.
602.2 Definitions.
602.3 Organization and membership.
602.4 Submission of information to the Secretary by recognized
accrediting agencies.
602.5 Notice to accrediting agencies of Federal actions.
Subpart B--Recognition and Termination Procedures
602.10 Application for recognition.
602.11 Preliminary review by the Secretary.
602.12 Review by the National Advisory Committee on Institutional
Quality and Integrity.
602.13 Review and decision by the Secretary.
602.14 Limitation, suspension, or termination of recognition.
602.15 Appeals procedures.
602.16 Publication of list of recognized agencies.
Subpart C--Criteria for Secretarial Recognition
602.20 Geographic scope of accrediting activities.
602.21 Administrative and fiscal responsibility.
602.22 Accreditation experience.
602.23 Application of standards.
602.24 Accreditation processes.
602.25 Substantive change.
602.26 Required accreditation standards.
602.27 Additional required operating procedures.
602.28 Due process for institutions and programs.
602.29 Notification of accrediting agency decisions.
602.30 Regard for decisions of States and other accrediting
agencies.
Authority: 20 U.S.C. 1099b, unless otherwise noted.
Subpart A--General Provisions
Sec. 602.1 Purpose.
(a)(1) This part establishes procedures and criteria for the
Secretary's recognition of accrediting agencies. The purpose of the
Secretary's recognition of agencies is to ensure that these agencies
are, for the purposes of the Higher Education Act of 1965, as amended
(HEA), or for other Federal purposes, reliable authorities as to the
quality of education or training offered by the institutions of higher
education or the higher education programs they accredit.
(2) The Secretary's recognition of an accrediting agency is based
on the Secretary's determination that the agency satisfies the
requirements of this part.
(b) The Secretary only grants recognition to those accrediting
agencies that--
(1) Accredit--
(i) Institutions of higher education, provided that accreditation
by the agency is a required element in enabling those institutions to
establish eligibility to participate in HEA programs; or
(ii) Institutions of higher education or higher education programs,
provided that accreditation by the agency is a required element in
enabling those institutions or programs to establish eligibility to
participate in other programs administered by the Department or by
other Federal agencies;
(2) Meet the organization and membership requirements specified in
Sec. 602.3;
(3) For agencies already recognized by the Secretary, comply with
the information sharing requirements specified in Sec. 602.4; and
(4) Satisfy the criteria for Secretarial recognition specified in
Subpart C of this part.
(Authority: 20 U.S.C. 1099b)
Sec. 602.2 Definitions.
The following definitions apply to terms used in this part:
Accreditation means the status of public recognition that an
accrediting agency grants to an educational institution or program that
meets the agency's established standards and requirements.
Accrediting agency or agency means a legal entity, or that part of
a legal entity, that conducts accrediting activities through voluntary,
non-Federal peer evaluations and makes decisions concerning the
accreditation or preaccreditation status of institutions, programs, or
both.
Act means the Higher Education Act of 1965, as amended.
Adverse accrediting action means the denial, withdrawal,
suspension, or termination of accreditation or preaccreditation, or any
comparable accrediting action an agency may take against an institution
or program, except that placing an institution or program on probation
or issuing a show cause order against an institution or program is not
an adverse accrediting action unless it is so defined by the
accrediting agency.
Advisory Committee means the National Advisory Committee on
Institutional Quality and Integrity.
Branch campus means
(1) A location of an institution of higher education that meets the
definition of this term in 34 CFR 600.2, and
(2) Any location of an institution, other than the main campus, at
which the institution offers at least 50 percent of an educational
program.
Designated Department official means the official in the Department
of Education to whom the Secretary has delegated the responsibilities
indicated in this part.
Final accrediting action means a final determination by an
accrediting agency regarding the accreditation or preaccreditation
status of an institution or program that is not subject to any further
appeal within the agency.
Institution of higher education or institution means an educational
institution that qualifies or may qualify as an eligible institution
under 34 CFR part 600.
Institutional accrediting agency means an agency that accredits
institutions of higher education.
Nationally recognized accrediting agency, nationally recognized
agency, or recognized agency means an accrediting agency that is
recognized by the Secretary under this part.
Preaccreditation means the status of public recognition that an
accrediting agency grants to an institution or program for a limited
period of time that signifies that the agency has determined that the
institution or program is progressing towards accreditation and is
likely to attain accreditation before the expiration of that limited
period of time.
Program means a postsecondary educational program offered by an
institution of higher education that leads to an academic or
professional degree, certificate, or other recognized educational
credential.
Programmatic accrediting agency means an agency that accredits
specific educational programs that prepare students for entry into a
profession, occupation, or vocation.
Representative of the public means a person who is not
(1) An employee, member of the governing board, owner, or
shareholder of, or consultant to, an institution or program that either
is accredited by the agency or has applied for accreditation;
(2) A member of any trade association or membership organization
related to, affiliated with, or associated with the accrediting agency;
or
(3) A spouse, parent, child, or sibling of an individual identified
in paragraph (1) or (2) of this definition.
Secretary means the Secretary of the U.S. Department of Education
or any official or employee of the Department acting for the Secretary
under a delegation of authority.
State means a State of the Union, American Samoa, the Commonwealth
of Puerto Rico, the District of Columbia, Guam, the Trust Territory of
the Pacific Islands, the Virgin Islands, and the Commonwealth of the
Northern Mariana Islands.
Teach-out agreement means a written agreement between accredited
institutions that provides for the equitable treatment of students if
one of those institutions stops offering an educational program before
all students enrolled in that program complete the program.
Vocational education means an instructional program, below the
bachelor's level, designed to prepare individuals with the skills and
training required for employment in a specific trade, occupation, or
profession related to the instructional program.
(Authority: 20 U.S.C. 1099b)
Sec. 602.3 Organization and membership.
(a) The Secretary recognizes only the following categories of
accrediting agencies:
(1) A State agency that--
(i) Has as a principal purpose the accrediting of institutions of
higher education, higher education programs, or both; and
(ii) Has been listed by the Secretary as a nationally recognized
accrediting agency on or before October 1, 1991;
(2) An accrediting agency that--
(i) Has a voluntary membership of institutions of higher education;
(ii) Has as a principal purpose the accrediting of institutions of
higher education and that accreditation is a required element in
enabling those institutions to participate in programs authorized under
this Act; and
(iii) Satisfies the ``separate and independent'' requirements
contained in paragraph (b) of this section;
(3) An accrediting agency that--
(i) Has a voluntary membership; and
(ii) Has as its principal purpose the accrediting of higher
education programs, or higher education programs and institutions of
higher education, and that accreditation is a required element in
enabling those institutions or programs, or both, to participate in
Federal programs not authorized under this Act; and
(4) An accrediting agency that, for purposes of determining
eligibility for Title IV, HEA programs--
(i)(A) Has a voluntary membership of individuals participating in a
profession; or
(B) Has as its principal purpose the accrediting of programs within
institutions that are accredited by another nationally recognized
accrediting agency; and
(ii)(A) Satisfies the ``separate and independent'' requirements
contained in paragraph (b) of this section; or
(B) Obtains a waiver from the Secretary under paragraph (d) of this
section of the ``separate and independent'' requirements contained in
paragraph (b) of this section.
(b) For purposes of this section, ``separate and independent''
means that--
(1) The members of the agency's decision-making body--who make its
accrediting decisions, establish its accreditation policies, or both--
are not elected or selected by the board or chief executive officer of
any related, associated, or affiliated trade association or membership
organization;
(2) At least one member of the agency's decision-making body is a
representative of the public, with no less than one-seventh of the body
consisting of representatives of the public;
(3) The agency has established and implemented guidelines for each
member of the decision-making body to avoid conflicts of interest in
making decisions;
(4) The agency's dues are paid separately from any dues paid to any
related, associated, or affiliated trade association or membership
organization; and
(5) The agency's budget is developed and determined by the agency
without review by or consultation with any other entity or
organization.
(c) The Secretary considers that any joint use of personnel,
services, equipment, or facilities by an accrediting agency and a
related, associated, or affiliated trade association or membership
organization does not violate the provisions of paragraph (b) of this
section if--
(1) The agency pays the fair market value for its proportionate
share of the joint use; and
(2) The joint use does not compromise the independence and
confidentiality of the accreditation process.
(d)(1) Upon request of an accrediting agency described in paragraph
(a)(4) of this section, the Secretary waives the ``separate and
independent'' requirements of this section if the agency demonstrates
that--
(i) The agency has been listed by the Secretary as a nationally
recognized agency on or before October 1, 1991; and
(ii) The existing relationship between the agency and the related,
associated, or affiliated trade association or membership organization
does not compromise the independence of the accreditation process.
(2) To demonstrate that the existing relationship between the
agency and the related, associated, or affiliated trade association or
membership organization does not compromise the independence of the
accreditation process, the agency must show that--
(i) The related, associated, or affiliated trade association or
membership organization plays no role in making or ratifying the
accreditation decisions of the agency;
(ii) The agency has sufficient budgetary and administrative
autonomy to carry out its accrediting functions; and
(iii) The agency provides to the related, associated, or affiliated
trade association or membership organization only information it makes
available to the public.
(3) An agency seeking a waiver of the ``separate and independent''
requirements contained in this section must apply for the waiver each
time it seeks recognition or renewal of recognition by the Secretary.
(Authority: 20 U.S.C. 1099b)
Sec. 602.4 Submission of information to the Secretary by recognized
accrediting agencies.
Each accrediting agency recognized by the Secretary shall submit to
the Secretary--
(a) Notice of final accrediting actions taken by the agency with
respect to the institutions and programs it accredits;
(b) A copy of any annual report prepared by the agency;
(c) A copy, updated annually, of the agency's directory of
accredited institutions and programs;
(d) A summary of the agency's major accrediting activities during
the previous year (an annual data summary), if so requested by the
Secretary to carry out the Secretary's responsibilities related to this
part;
(e) Upon request of the Secretary, information regarding an
accredited or preaccredited institution's compliance with its Title IV,
HEA program responsibilities, including its eligibility to participate
in Title IV, HEA programs, for the purpose of assisting the Secretary
in resolving problems with the institution's participation in these
programs;
(f) The name of any institution or program accredited by the agency
that the agency has reason to believe is failing to meet its Title IV,
HEA program responsibilities or is engaged in fraud or abuse and the
reason for the agency's concern; and
(g) Any proposed change in the agency's policies, procedures, or
accreditation standards that might alter the agency's--
(1) Scope of recognition; or
(2) Compliance with the requirements of this part.
(Authority: 20 U.S.C. 1099b)
Sec. 602.5 Notice to accrediting agencies of Federal actions.
(a) If the Secretary takes an action against an institution or
program, the Secretary notifies the appropriate accrediting agency or
agencies no later than 10 days after taking that action.
(b) If the Secretary is informed that another Federal agency is
taking an action against an institution or program, the Secretary
notifies the appropriate accrediting agency or agencies as soon as
possible but no later than 10 days after learning of that action.
(c) If an institution is referred for review under the State
Postsecondary Review Program, the Secretary notifies the institution's
accrediting agency or agencies at the same time the Secretary notifies
the State Postsecondary Review Entity.
(Authority: 20 U.S.C. 1099b)
Subpart B--Recognition and Termination Procedures
Sec. 602.10 Application for recognition.
(a) An accrediting agency seeking initial or renewed recognition by
the Secretary as a nationally recognized accrediting agency submits a
written application to the Secretary. The application for recognition
consists of--
(1) A statement of the agency's requested scope of recognition;
(2) Evidence of the agency's compliance with the criteria for
recognition set forth in this part; and
(3) Supporting documentation.
(b) An accrediting agency's application for recognition constitutes
a grant of authority to the Secretary to conduct site visits and to
gain access to agency records, personnel, and facilities on an
announced or unannounced basis.
(c) The Secretary does not make available to the public any
confidential agency materials examined by Department personnel or the
Secretary as part of the Secretary's evaluation of either an
accrediting agency's application for recognition or its compliance with
the requirements for recognition.
(Authority: 20 U.S.C. 1099b)
Sec. 602.11 Preliminary review by the Secretary.
(a) Upon receipt of an accrediting agency's application for initial
or renewed recognition, the Secretary--
(1) Establishes a schedule for the review of the agency by the
designated Department official, the National Advisory Committee on
Institutional Quality and Integrity, and the Secretary;
(2) Publishes notice of the agency's application in the Federal
Register, inviting public comment on the agency's compliance with the
requirements for recognition and stipulating a deadline for receipt of
public comment; and
(3) Provides State Postsecondary Review Entities and other
appropriate organizations with copies of the notice described in
paragraph (a)(2) of this section.
(b)(1) The designated Department official analyzes the accrediting
agency's application to determine whether the agency satisfies the
requirements of this part, taking into account all available relevant
information concerning the compliance of the agency with the
requirements for recognition. The analysis includes--
(i) Site visits, on an announced or unannounced basis, to the
agency and, at the Secretary's discretion, institutions or programs it
accredits;
(ii) Review of public comment and other third-party information
received or solicited by the Secretary, as well as any other
information provided to the Secretary, concerning the performance of
the agency in relation to the requirements of this part; and
(iii) Review of complaints or legal actions involving the agency.
(2) The designated Department official's evaluation may also
include a review of information directly related to institutions or
programs accredited or preaccredited by the agency, relative to their
compliance with the accrediting agency's standards, the effectiveness
of the agency's standards, and the agency's application of those
standards.
(c) The designated Department official--
(1) Prepares a written analysis of the accrediting agency;
(2) Sends the analysis and all supporting documentation, including
all third-party comments received by the Secretary, to the agency no
later than 45 days before the Advisory Committee meeting; and
(3) Specifies a time period, which will be no later than 14 days
before the Advisory Committee meeting, during which the agency may
provide the designated Department official with any written comments on
the analysis.
(d) The accrediting agency provides any written comments it chooses
to make to the designated Department official before the expiration of
the time period specified in paragraph (c)(3) of this section.
(e) The designated Department official provides the Advisory
Committee with the accrediting agency's application and supporting
documentation, the designated Department official's analysis of the
application, all information relied upon by the designated Department
official in developing the analysis, any response by the agency to the
analysis or third-party comment, any Department concurrence with or
rebuttal to the agency's response, and any third-party information the
Secretary receives regarding the agency.
(f) The designated Department official provides the agency with a
copy of any Department rebuttal provided to the Advisory Committee
under paragraph (e) of this section.
(g) If the designated Department official fails to provide the
agency with the materials described in paragraph (c)(2) of this section
within the 45-day time frame specified in that section, the agency may
request that the Advisory Committee defer action on its application
until the next meeting of the Advisory Committee.
(h) At least 30 days before the Advisory Committee meeting, the
Secretary publishes a notice of the meeting in the Federal Register and
invites interested parties, including those who submitted third-party
comments concerning an agency's compliance with the requirements for
recognition, to make oral presentations before the Advisory Committee.
(Authority: 20 U.S.C. 1099b)
Sec. 602.12 Review by the National Advisory Committee on Institutional
Quality and Integrity.
(a)(1) The Advisory Committee considers an accrediting agency's
application at a public meeting and invites the designated Department
official, the agency, and other interested parties to make oral
presentations at the meeting.
(2) The designated Department official arranges for a transcript to
be made of the Advisory Committee meeting.
(b) At the conclusion of the meeting, the Advisory Committee
recommends that the Secretary approve or deny recognition of the
accrediting agency or defer a decision on the agency's application.
(c)(1) Except as provided in paragraph (c)(2) of this section, the
Advisory Committee recommends recognition of an agency if the agency
complies with each of the requirements of this part.
(2) The Advisory Committee may recommend recognition despite
finding that the agency failed to comply with each of the requirements
of this part if the Advisory Committee provides the Secretary with a
detailed explanation as to why it believes the agency's failure to
comply with the particular requirement(s) does not require denial or
deferral.
(3) If the Advisory Committee recommends recognition, the Advisory
Committee also recommends the scope of recognition for the agency and a
recognition period.
(4) If the Advisory Committee recommends denial of recognition, the
Advisory Committee specifies the reasons for the recommendation and the
requirements of this part that the agency failed to meet.
(5) If the Advisory Committee recommends deferral of a decision on
the agency's application, the Advisory Committee specifies the reasons
for the recommendation, the requirements of this part that it believes
the agency has not met, and a recommended deferral period.
(d) After the meeting, the Advisory Committee forwards its written
recommendations concerning recognition to the Secretary.
(Authority: 20 U.S.C. 1099b, 1145)
Sec. 602.13 Review and decision by the Secretary.
(a) The Secretary determines whether to grant national recognition
to an applicant accrediting agency based on the Advisory Committee's
recommendation and the full record of the agency's application,
including all oral and written presentations to the Advisory Committee
by the agency, the designated Department official, and interested third
parties.
(b)(1) Before making a final decision, the Secretary affords both
the designated Department official and the accrediting agency an
opportunity to contest, in writing, the Advisory Committee's
recommendation. If either the agency or the designated Department
official wishes to contest the recommendation, that party shall notify
the Secretary and the other party no later than 10 days after the
Advisory Committee meeting.
(2) If the party contesting the Advisory Committee's recommendation
wishes to make a written submission to the Secretary, the Secretary
must receive that submission no later than 30 days after the Advisory
Committee meeting. However, the contesting party may not submit any
evidence to the Secretary that it did not submit to the Advisory
Committee. The contesting party shall simultaneously provide a copy of
its submission to the other party.
(3) If the noncontesting party wishes to respond in writing to the
Secretary, the Secretary must receive that submission no later than 30
days after the noncontesting party receives the contesting party's
submission. However, the noncontesting party may not submit any
evidence to the Secretary that it did not submit to the Advisory
Committee. The noncontesting party shall simultaneously provide a copy
of its response to the contesting party.
(4) If the Advisory Committee's recommendation is contested, the
Secretary renders a final decision after taking into account the two
parties' timely written submissions, if any.
(c) The Secretary approves the accrediting agency for national
recognition if the Secretary determines that the agency satisfies each
of the requirements contained in this part.
(d) The Secretary approves the accrediting agency for national
recognition even if the agency does not satisfy each of the
requirements contained in this part if the Secretary determines that
the agency's effectiveness is not impaired by the noncompliance.
(e) If the Secretary approves the accrediting agency for national
recognition, the Secretary defines--
(1) The scope of the agency's recognition for Federal purposes,
which shall include the--
(i) Geographic area;
(ii) Degrees and certificates awarded;
(iii) Types of institutions, programs, or both that the agency may
accredit; and
(iv) Preaccreditation status(es), if any, that the Secretary
approves for recognition; and
(2) The recognition period, which does not exceed five years.
(f) If the Secretary denies recognition to the accrediting agency
or grants recognition for a scope narrower than that requested by the
agency, the Secretary indicates in writing the reasons for that
decision.
(g) If the Secretary defers a decision on the accrediting agency's
application, the Secretary--
(1) Indicates in writing the reasons for the deferral and the
deferral period; and
(2) Automatically extends any previously granted recognition period
until the Secretary reaches a decision on the renewal application.
(h) If the Secretary does not reach a final decision on an
accrediting agency's application for renewal of recognition before the
expiration of the agency's recognition period, the Secretary
automatically extends the previously granted recognition period until
the Secretary reaches a decision on the renewal application.
(Authority: 20 U.S.C. 1099b)
Sec. 602.14 Limitation, suspension, or termination of recognition.
(a)(1) The Secretary may limit, suspend, or terminate the
recognition of an accrediting agency before completion of its
previously granted recognition period if the Secretary determines,
after notice and opportunity for a hearing, that the agency fails or
has failed to satisfy any of the requirements of this part.
(2)(i) If the agency requests a hearing, the hearing is conducted
by the Advisory Committee or by a subcommittee of five members of the
Advisory Committee, selected by the Secretary, if the Secretary
determines that a more timely hearing is necessary than can be
accommodated by the schedule of the full Advisory Committee.
(ii) If the Secretary selects a subcommittee of the Advisory
Committee instead of the full Advisory Committee, the agency may
challenge the membership of the subcommittee on grounds of conflict of
interest on the part of one or more of the members of the subcommittee,
and the Secretary replaces the member(s) if the agency's challenge is
successful.
(iii) The designated Department official arranges for a transcript
to be made of the hearing.
(b) The designated Department official begins a limitation,
suspension, or termination proceeding against an accrediting agency by
sending the agency a notice that--
(1) Informs the agency of the Secretary's intent to limit, suspend,
or terminate its recognition;
(2) Identifies the alleged violations of the governing regulations
that constitute the basis for the action;
(3) Describes the limits to be imposed if the Secretary seeks to
limit the accrediting agency;
(4) Specifies the effective date of the limitation, suspension, or
termination; and
(5) Informs the agency that it may--
(i) Submit to the designated Department official a written response
to the notice no later than 30 days after it receives the notice; and
(ii) Request a hearing, which shall take place in Washington, DC,
before the Advisory Committee or subcommittee if the agency submits a
hearing request to the designated Department official no later than 30
days after it receives the notice.
(c)(1) As part of its response to the limitation, suspension, or
termination notice or its hearing request, if any, the accrediting
agency shall identify the issues and facts in dispute and its position
with regard to those issues and facts.
(2) After receipt of the agency's response and hearing request, if
any, the designated Department official--
(i) Transmits the limitation, suspension, or termination notice and
the agency's response, if any, to that notice to the Advisory Committee
or subcommittee; and
(ii) Establishes the date and time of any hearing before the
Advisory Committee or subcommittee.
(d)(1) Except as provided in paragraph (d)(2) of this section, if a
hearing is held, the Advisory Committee or subcommittee shall allow the
designated Department official, the accrediting agency, and any
interested party to make an oral or written presentation. That
presentation may include the introduction of written and oral evidence.
(2) If the designated Department official and the accrediting
agency each agree, the Advisory Committee or subcommittee review shall
be based solely on the written materials submitted to it under
paragraph (c)(2)(i) of this section.
(e)(1) After the Advisory Committee or subcommittee reviews the
presentations, it shall issue an opinion in which it--
(i) Makes findings of fact based upon the evidence presented;
(ii) Recommends whether a limitation, suspension, or termination of
the agency's recognition is warranted; and
(iii) Provides the reasons for that recommendation.
(2) The Advisory Committee or subcommittee shall--
(i) Transmit its written opinion to the Secretary; and
(ii) Provide a copy of its opinion to the designated Department
official and the accrediting agency.
(f)(1) Unless the Advisory Committee's or subcommittee's
recommendation is appealed, after receiving the recommendation, the
Secretary issues a decision on whether to limit, suspend, or terminate
the agency's recognition, based upon the Advisory Committee's or
subcommittee's recommendation and the full record before the Advisory
Committee or subcommittee.
(2) Either the accrediting agency or the designated Department
official may appeal the Advisory Committee's or subcommittee's
recommendation by filing a notice of appeal with the Secretary within
10 days of receipt of the Advisory Committee's or subcommittee's
recommendation. If either party files an appeal with the Secretary,
that party shall simultaneously provide a copy of the notice of appeal
to the other party.
(3) The party appealing the Advisory Committee's or subcommittee's
recommendation has 30 days after its receipt of the recommendation to
make a written submission to the Secretary challenging the
recommendation. However, the appealing party may not submit any
evidence that was not submitted to the Advisory Committee or
subcommittee. The appealing party shall simultaneously provide a copy
of the submission to the other party.
(4) The nonappealing party has 30 days from the date it receives
the appealing party's submission to file a written response to the
Secretary regarding the submissions of the appealing party and shall
simultaneously provide the appealing party with a copy of its response.
The nonappealing party may not submit any evidence that was not
submitted to the Advisory Committee or subcommittee.
(5) If the Advisory Committee's or subcommittee's recommendation is
appealed, the Secretary renders a final decision after taking into
account that recommendation and the parties' written submissions on
appeal.
(Authority: 20 U.S.C. 1099b)
Sec. 602.15 Appeals procedures.
An accrediting agency may appeal the Secretary's final decision
under this part regarding the agency's recognition to the Federal
courts as a final decision in accordance with applicable Federal law.
(Authority: 20 U.S.C. 1099b)
Sec. 602.16 Publication of list of recognized agencies.
(a) The Secretary periodically publishes in the Federal Register a
list of recognized accrediting agencies and each agency's scope of
recognition.
(b) If the Secretary denies recognition to a previously recognized
accrediting agency, or limits, suspends, or terminates its recognition
during a previously granted recognition period, the Secretary publishes
a notice of that action in the Federal Register and makes available to
the public, upon request, the Secretary's determination.
(Authority: 20 U.S.C. 1099b)
Subpart C--Criteria for Secretarial Recognition
Sec. 602.20 Geographic scope of accrediting activities.
To be listed by the Secretary as a nationally recognized
accrediting agency, an accrediting agency must demonstrate to the
Secretary that the geographical scope of its accrediting activities
covers--
(a) A State, if the agency is a component of a State government;
(b) A region of the United States that includes at least three
States that are contiguous or in close geographical proximity to one
another; or
(c) The United States.
(Authority: 20 U.S.C. 1099b)
Sec. 602.21 Administrative and fiscal responsibility.
(a) To be listed by the Secretary as a nationally recognized
accrediting agency, an accrediting agency must demonstrate to the
Secretary that it has the administrative and fiscal capability to carry
out its accreditation activities in light of its requested scope of
recognition.
(b) The Secretary considers that an accrediting agency meets the
requirements of paragraph (a) of this section if it has, and will
likely continue to have--
(1) Adequate administrative staff to--
(i) Carry out its accrediting responsibilities effectively; and
(ii) Manage its finances effectively;
(2) Competent and knowledgeable individuals, qualified by
experience and training, responsible for on-site evaluation, policy-
making, and decision-making regarding accreditation and
preaccreditation status;
(3) Representation on its evaluation, policy, and decision-making
bodies of--
(i) For an institutional accrediting agency, both academic and
administrative personnel; and
(ii) For a programmatic accrediting agency, both educators and
practitioners;
(4) Representation of the public on all decision-making bodies;
(5) Clear and effective controls against conflicts of interest or
the appearance of conflicts of interest by the agency's board members,
commissioners, evaluation team members, consultants, administrative
staff, and other agency representatives;
(6) Adequate financial resources to carry out its accrediting
responsibilities, taking into account the funds required to conduct the
range of accrediting activities specified in the requested scope of
recognition and the income necessary to meet the anticipated costs of
its activities in the future; and
(7) Complete and accurate records of--
(i) Its last two full accreditation or preaccreditation reviews of
each institution or program, including on-site evaluation team reports,
institution or program responses to on-site reports, periodic review
reports, any reports of special reviews conducted by the agency between
regular reviews, and the institution's or program's most recent self-
study report; and
(ii) All preaccreditation and accreditation decisions, including
all adverse actions.
(Authority: 20 U.S.C. 1099b)
Sec. 602.22 Accreditation experience.
(a) To be listed by the Secretary as a nationally recognized
accrediting agency, an accrediting agency must demonstrate to the
Secretary that it has adequate experience in accrediting institutions,
programs, or both.
(b) The Secretary considers that an accrediting agency satisfies
the requirements of paragraph (a) of this section if it has--
(1) Granted accreditation or preaccreditation status to
institutions or programs in the geographical area for which it seeks
recognition;
(2) Conducted accreditation activities covering the range of the
specific degrees, certificates, and programs for which it seeks
recognition, including--
(i) Granting accreditation or preaccreditation status; and
(ii) Providing technical assistance related to accreditation to
institutions, programs, or both; and
(3) Established policies, evaluative criteria, and procedures, and
made evaluative decisions, that are accepted throughout the United
States by--
(i) Educators and educational institutions; and
(ii) Licensing bodies, practitioners, and employers in the
professional or vocational fields for which the educational
institutions or programs within the agency's jurisdiction prepare their
students.
(Authority: 20 U.S.C. 1099b)
Sec. 602.23 Application of standards.
(a) To be listed by the Secretary as a nationally recognized
accrediting agency, an accrediting agency must demonstrate to the
Secretary that it consistently applies and enforces written standards
that ensure that the education or training offered by an institution or
program is of sufficient quality to achieve, for the duration of any
accreditation period granted by the agency, the stated objective for
which it is offered.
(b) The Secretary considers that an accrediting agency meets the
requirements of paragraph (a) of this section if--
(1) The agency's written standards and procedures for accreditation
and preaccreditation, if that latter status is offered, comply with the
requirements of this part;
(2) The agency's preaccreditation standards, if offered, are
appropriately related to the agency's accreditation standards, with a
limit on preaccreditation status of no more than five years for any
institution or program;
(3) The agency's organizations, functions, and procedures include
effective controls against the inconsistent application of its criteria
and standards;
(4) The agency bases its decisions regarding accreditation or
preaccreditation on its published criteria; and
(5) The agency maintains a systematic program of review designed to
ensure that its criteria and standards are valid and reliable
indicators of the quality of the education or training provided by the
institutions or programs it accredits and are relevant to the education
or training needs of affected students.
(6) The agency demonstrates to the Secretary that, as a result of
its program of review under paragraph (b)(5) of this section, each of
its standards provides--
(i) A valid measure of the aspects of educational quality it is
intended to measure; and
(ii) A consistent basis for determining the educational quality of
different institutions and programs.
(Authority: 20 U.S.C. 1099b)
Sec. 602.24 Accreditation processes.
(a) To be listed by the Secretary as a nationally recognized
accrediting agency, an accrediting agency must demonstrate to the
Secretary that it has effective mechanisms for evaluating compliance
with its standards and that those mechanisms cover the full range of an
institution's or program's offerings, including those offerings
conducted at branch campuses and additional locations.
(b) The Secretary considers that an accrediting agency meets the
requirements of paragraph (a) of this section if--
(1) In determining whether to grant initial or renewed
accreditation, the accrediting agency evaluates whether an institution
or program--
(i) Maintains clearly specified educational objectives consistent
with its mission and appropriate in light of the degrees or
certificates it awards;
(ii) Is successful in achieving its stated objectives;
(iii) Maintains degree and certificate requirements that at least
conform to commonly accepted standards; and
(iv) Complies with the agency's criteria;
(2) In reaching its determination to grant initial or renewed
accreditation, the accrediting agency--
(i) Requires an in-depth self-study by each institution or program,
in accordance with guidance provided by the agency, that includes the
assessment of educational quality and the institution's or program's
continuing efforts to improve educational quality;
(ii) Conducts at least one on-site review of the institution or
program at which the agency obtains sufficient information to enable it
to determine if the institution or program complies with the agency's
criteria;
(iii) Conducts its own analyses and evaluations of the self-study
and supporting documentation furnished by the institution or program,
and any other appropriate information from other sources, to determine
whether the institution or program complies with the agency's
standards; and
(iv) Provides to the institution or program a detailed written
report on its review assessing--
(A) The institution's or program's compliance with the agency's
standards, including areas needing improvement; and
(B) The institution's or program's performance with respect to
student achievement;
(3) In addition to the on-site visit described in paragraph
(b)(2)(ii) of this section, an institutional accrediting agency whose
accreditation enables the institutions it accredits to seek eligibility
to participate in Title IV, HEA programs conducts--during the interval
between the agency's award of accreditation or preaccreditation to the
institution or program and the expiration of the accreditation or
preaccreditation period--at least one unannounced on-site inspection at
each institution that provides vocational education or training for the
purpose of determining whether the institution has the personnel,
facilities, and resources it claimed to have either during its previous
on-site review or in subsequent reports to the accrediting agency;
(4) The accrediting agency--
(i) Monitors institutions or programs throughout the accreditation
or preaccreditation period to ensure continuing compliance with the
agency's standards or criteria; and
(ii) Conducts special evaluations, site visits, or both, as
necessary; and
(5) The accrediting agency regularly reevaluates institutions or
programs that have been granted accreditation or preaccreditation.
(Authority: 20 U.S.C. 1099b)
Sec. 602.25 Substantive change.
(a) To be listed by the Secretary as a nationally recognized
accrediting agency, an institutional accrediting agency must
demonstrate to the Secretary that it maintains adequate substantive
change policies that ensure that any substantive change to the
educational mission or program(s) of an institution after the agency
has granted accreditation or preaccreditation to the institution does
not adversely affect the capacity of the institution to continue to
meet the agency's standards.
(b) The Secretary considers that an accrediting agency meets the
requirements of paragraph (a) of this section if--
(1) The agency requires prior approval of the substantive change by
the agency before the change is included in the agency's previous grant
of accreditation or preaccreditation to the institution; and
(2) The agency's definition of substantive change includes, but is
not limited to, the following types of change:
(i) Any change in the established mission or objectives of the
institution;
(ii) Any change in the legal status or form of control of the
institution;
(iii) The addition of courses or programs that represent a
significant departure, in terms of either in the content or method of
delivery, from those that were offered when the agency most recently
evaluated the institution;
(iv) The addition of courses or programs at a degree or credential
level above that included in the institution's current accreditation or
preaccreditation;
(v) A change from clock hours to credit hours or vice versa; and
(vi) A substantial increase in--
(A) The number of clock or credit hours awarded for successful
completion of a program; or
(B) The length of a program.
(c) The agency has discretion to determine the procedures it will
use to grant prior approval of the substantive change, which may, but
need not, require an on-site evaluation before approval is granted.
(Authority: 20 U.S.C. 1099b)
Sec. 602.26 Required accreditation standards.
(a)(1) To be listed by the Secretary as a nationally recognized
accrediting agency, an accrediting agency must demonstrate to the
Secretary that its accreditation or preaccreditation standards, or
both, are sufficiently rigorous to ensure that the agency is a reliable
authority as to the quality of the education or training provided by
the institutions or programs it accredits.
(2) For a programmatic accrediting agency that does not serve as an
institutional accrediting agency for any of the programs it accredits,
the standards must address the areas contained in paragraph (b) of this
section in terms of the type and level of the program rather than in
terms of the institution.
(3) If none of the institutions an agency accredits participates in
any Title IV, HEA program, or if the agency only accredits programs
within institutions accredited by an institutional accrediting agency
recognized by the Secretary, the accrediting agency is not required to
have the standards described in paragraphs (b)(7), (b)(8), (b)(10), and
(b)(12) of this section.
(b) In order to assure that an accrediting agency is a reliable
authority as to the quality of the education or training provided by an
institution or program it accredits, the agency must have standards
that effectively address the quality of an institution or program in
the following areas:
(1) Curricula.
(2) Faculty.
(3) Facilities, equipment, and supplies.
(4) Fiscal and administrative capacity as appropriate to the
specified scale of operations.
(5) Student support services.
(6) Recruiting and admissions practices, academic calendars,
catalogs, publications, grading, and advertising.
(7) Program length and tuition and fees in relation to the subject
matters taught and the objectives of the degrees or credentials
offered.
(8) Measures of program length in clock hours or credit hours.
(9) Success with respect to student achievement in relation to
mission, including, as appropriate, consideration of course completion,
State licensing examination, and job placement rates.
(10) Default rates in the student loan programs under Title IV of
the Act, based on the most recent data provided by the Secretary.
(11) Record of student complaints received by, or available to, the
agency.
(12) Compliance with the institution's program responsibilities
under Title IV of the Act, including any results of financial or
compliance audits, program reviews, and such other information as the
Secretary may provide to the agency.
(c)(1) An accrediting agency shall take appropriate action if its
review of an institution or program under any standard indicates that
the institution or program is not in compliance with that standard.
(2) If the agency believes that the institution or program is not
in compliance with the standards, the agency shall--
(i) Take prompt adverse action against the institution or program;
or
(ii) Require the institution or program to take appropriate action
to bring itself into compliance with the agency's standards within a
time frame specified by the agency.
(3) The accrediting agency has sole discretion to determine the
course of action it chooses under paragraph (c)(2) of this section and,
if it selects the option specified in paragraph (c)(2)(ii) of this
section, the time frame for the institution or program to bring itself
into compliance with agency standards. However, except as indicated in
paragraph (c)(4) of this section, the specified period may not exceed--
(i) Twelve months, if the program is less than one year in length;
(ii) Eighteen months, if the program is at least one year, but less
than two years, in length; or
(iii) Two years, if the program is at least two years in length.
(4) If the institution or program does not bring itself into
compliance within the specified period, the agency must take adverse
action unless the agency extends the period for achieving compliance
for good cause.
(d) An accrediting agency shall have a reasonable basis for
determining that the information it relies on for making the
assessments described in paragraphs (b) and (c) of this section is
accurate.
(e) An accrediting agency that has established and applies the
standards in paragraph (b) of this section may establish any additional
accreditation standards as it deems appropriate.
(Authority: 20 U.S.C. 1091, 1099b)
Sec. 602.27 Additional required operating procedures.
(a) To be listed by the Secretary as a nationally recognized
accrediting agency, an accrediting agency must demonstrate to the
Secretary that it satisfies the procedural requirements contained in
other provisions of this part and the additional requirements contained
in paragraphs (b) through (h) of this section.
(b) If the accrediting agency accredits institutions and that
accreditation enables those institutions to seek eligibility to
participate in Title IV, HEA programs--
(1) The agency requires the institution to--
(i) Notify the agency if the institution plans to establish a
branch campus; and
(ii) Submit a business plan described in paragraph (b)(2) of this
section for the branch campus;
(2) The business plan that an institution submits under paragraph
(b)(1)(ii) of this section must contain a description of--
(i) The educational program to be offered at the branch campus;
(ii) The projected revenues and expenditures and cash flow at the
branch campus; and
(iii) The operation, management, and physical resources at the
branch campus;
(3) The agency extends accreditation to the branch campus only
after evaluating the business plan and taking other necessary actions
to permit the agency to determine that the branch campus has sufficient
educational, financial, operational, management, and physical resources
to satisfy the accrediting agency's standards for accreditation;
(4) The agency undertakes a site visit of the branch campus as soon
as practicable, but no later than six months after the establishment of
that branch campus;
(5) The agency undertakes a site visit of an institution that has
undergone a change of ownership that resulted in a change of control as
soon as practicable, but no later than six months after the change of
ownership; and
(6) The agency requires any institution it accredits that enters
into a teach-out agreement with another institution to submit that
teach-out agreement to the agency for approval and approves the teach-
out agreement if the agreement--
(i) Is consistent with applicable standards and regulations; and
(ii) Provides for the equitable treatment of students by ensuring
that--
(A) Students are provided, without additional charge, all of the
instruction promised by the closed institution prior to its closure but
not provided to the students because of the closure; and
(B) The teach-out institution is geographically proximate to the
closed institution and can demonstrate compatibility of its program
structure and scheduling to that of the closed institution.
(c) The accrediting agency maintains and makes publicly available
written materials describing--
(1) Each type of accreditation and preaccreditation granted by the
agency;
(2) Its procedures for applying for accreditation or
preaccreditation;
(3) The criteria and procedures used by the agency for determining
whether to grant, reaffirm, reinstate, deny, restrict, revoke, or take
any other action related to each type of accreditation and
preaccreditation that the agency grants;
(4) The names, academic and professional qualifications, and
relevant employment and organizational affiliations of the members of
the agency's policy and decision-making bodies as well as the agency's
principal administrative staff; and
(5) The institutions or programs that the agency currently
accredits or preaccredits and the date when the agency will review or
reconsider the accreditation or preaccreditation of each institution or
program.
(d) In accordance with agency policy, the accrediting agency
publishes the year when an institution or program subject to its
jurisdiction is being considered for accreditation or preaccreditation
and provides an opportunity for third-party comment, either in writing
or at a public hearing, at the agency's discretion, concerning the
institution's or program's qualifications for accreditation or
preaccreditation.
(e) The accrediting agency provides advance public notice of
proposed new or revised criteria, giving interested parties adequate
opportunity to comment on these proposals prior to their adoption.
(f) The accrediting agency--
(1) Reviews any complaint it receives against an accredited
institution or program, or the agency itself, that is related to the
agency's standards, criteria, or procedures; and
(2) Resolves the complaint in a timely, fair, and equitable manner.
(g) The accrediting agency ensures that, if an institution or
program elects to make a public disclosure of its accreditation or
preaccreditation status granted by the agency, the institution or
program discloses that status accurately, including the specific
academic or instructional programs covered by that status and the name,
address, and telephone number of the accrediting agency.
(h) The accrediting agency provides for the public correction of
incorrect or misleading information released by an accredited or
preaccredited institution or program about--
(1) The accreditation status of the institution or program;
(2) The contents of reports of site team visitors; and
(3) The agency's accrediting actions with respect to the
institution or program.
(Authority: 20 U.S.C. 1099b)
Sec. 602.28 Due process for institutions and programs.
(a) To be listed by the Secretary as a nationally recognized
accrediting agency, an accrediting agency must demonstrate to the
Secretary that the procedures it uses throughout the accrediting
process satisfy due process requirements.
(b) The Secretary considers that an accrediting agency's procedures
satisfy due process requirements if--
(1) The agency sets forth in writing its procedures governing its
accreditation or preaccreditation processes;
(2) The agency's procedures afford an institution or program a
reasonable period of time to comply with agency requests for
information and documents;
(3) The agency notifies the institution or program in writing of
any adverse accrediting action;
(4) The agency's notice details the basis for any adverse
accrediting action;
(5) The agency permits the institution or program the opportunity
to appeal an adverse accrediting action, and the right to
representation by counsel during an appeal, except that the agency, at
its sole discretion, may limit the appeal to a written appeal; and
(6) The agency notifies the appellant in writing of the result of
the appeal and the basis for that result.
(Authority: 20 U.S.C. 1099b)
Sec. 602.29 Notification of accrediting agency decisions.
(a) To be listed by the Secretary as a nationally recognized
accrediting agency, except as provided in paragraph (b) of this
section, an accrediting agency must demonstrate to the Secretary that
its written policies, procedures, and practices require it to notify
the Secretary, the appropriate State postsecondary review entity, the
appropriate accrediting agencies, and the public of the following types
of decisions, no later than 30 days after a decision is made:
(1) A decision by the agency to award initial accreditation or
preaccreditation to an institution or program.
(2) A final decision by the agency to--
(i) Deny, withdraw, suspend, or terminate the accreditation or
preaccreditation of an institution or program; or
(ii) Take other adverse action against an institution or program.
(3) A decision by the agency to place an institution or program on
probation.
(4) A decision by an accredited institution or program to withdraw
voluntarily from accreditation or formal preaccreditation status.
(5) A decision by an accredited institution or program to let its
accreditation or preaccreditation lapse.
(b) If the agency's final decision is to deny, withdraw, suspend,
or terminate the accreditation or preaccreditation of an institution or
program or to take other adverse action against an institution or
program, the agency must notify the Secretary of that decision at the
same time it notifies the institution or program.
(c) No later than 60 days after a final decision, the accrediting
agency makes available to the Secretary, the appropriate State
postsecondary review entity, and the public upon request, a brief
statement summarizing the reasons for the agency's determination to
deny, withdraw, suspend, or terminate the accreditation or
preaccreditation of an institution or program, and the comments, if
any, that the affected institution or program may wish to make with
regard to that decision.
(d)(1) For purposes of the decisions described in paragraph (a)(4)
of this section, the date of the decision is the date on which the
accrediting agency receives notification by the institution or program
that it is voluntarily withdrawing from accreditation or
preaccreditation.
(2) For purposes of the decisions described in paragraph (a)(5) of
this section, the date of the decision is the date on which
accreditation or preaccreditation lapses.
(Authority: 20 U.S.C. 1099b)
Sec. 602.30 Regard for decisions of States and other accrediting
agencies.
(a) To be listed by the Secretary as a nationally recognized
accrediting agency, an accrediting agency must demonstrate to the
Secretary that--
(1) If the accrediting agency accredits institutions--
(i) The agency accredits only those institutions that are legally
authorized under applicable State law to provide a program of education
beyond the secondary level;
(ii) The agency does not renew, under the conditions described in
paragraph (b) of this section, the accreditation or preaccreditation of
an institution during a period in which the institution--
(A) Is the subject of an interim action by a recognized
institutional accrediting agency potentially leading to the suspension,
revocation, or termination of accreditation or preaccreditation;
(B) Is the subject of an interim action by a State agency
potentially leading to the suspension, revocation, or termination of
the institution's legal authority to provide postsecondary education;
(C) Has been notified of a threatened loss of accreditation, and
the due process procedures required by the action have not been
completed; or
(D) Has been notified of a threatened suspension, revocation, or
termination by the State of the institution's legal authority to
provide postsecondary education, and the due process procedures
required by the action have not been completed;
(iii) In considering whether to grant initial accreditation or
preaccreditation to an institution, the agency takes into account
actions by--
(A) Recognized institutional accrediting agencies that have denied
accreditation or preaccreditation to the institution, placed the
institution on public probationary status, or revoked the accreditation
or preaccreditation of the institution; and
(B) A State agency that has suspended, revoked, or terminated the
institution's legal authority to provide postsecondary education;
(iv) If the agency grants accreditation or preaccreditation to an
institution notwithstanding the actions described in paragraph
(a)(1)(ii) or (a)(1)(iii) of this section, the agency provides the
Secretary a thorough explanation, consistent with its accreditation
standards, why the previous action by a recognized institutional
accrediting agency or the State does not preclude the agency's grant of
accreditation or preaccreditation; and
(v) If a recognized institutional accrediting agency takes an
adverse action with respect to a dually-accredited institution or
places the institution on public probationary status, or if a
recognized programmatic accrediting agency takes an adverse action for
reasons associated with the overall institution rather than the
specific program against a program offered by an institution or places
the program on public probation, the agency promptly reviews its
accreditation or preaccreditation of the institution to determine if it
should also take adverse action against the institution.
(2) If the accrediting agency accredits programs--
(i) The agency does not renew, under the conditions described in
paragraph (b) of this section, the accreditation or preaccreditation
status of a program during any period in which the institution offering
the program--
(A) Is the subject of an interim action by a recognized
institutional accrediting agency potentially leading to the suspension,
revocation, or termination of accreditation or preaccreditation;
(B) Is the subject of an interim action by a State agency
potentially leading to the suspension, revocation, or termination of
the institution's legal authority to provide postsecondary education;
(C) Has been notified of a threatened loss of accreditation, and
the due process procedures required by the action have not been
completed;
(D) Has been notified of a threatened suspension, revocation, or
termination by the State of the institution's legal authority to
provide postsecondary education, and the due process procedures
required by the action have not been completed;
(ii) In considering whether to grant initial accreditation or
preaccreditation to a program, the agency takes into account actions
by--
(A) Recognized institutional accrediting agencies that have denied
accreditation or preaccreditation to the institution offering the
program, placed the institution on public probationary status, or
revoked the accreditation or preaccreditation of the institution; and
(B) A State agency that has suspended, revoked, or terminated the
institution's legal authority to provide postsecondary education;
(iii) If the agency grants accreditation or preaccreditation to a
program notwithstanding the actions described in paragraph (a)(2)(ii)
of this section, the agency provides to the Secretary a thorough
explanation, consistent with its accreditation standards, why the
previous action by a recognized institutional accrediting agency or the
State does not preclude the agency's grant of accreditation or
preaccreditation; and
(iv) If a recognized institutional accrediting agency takes adverse
action with respect to the institution offering the program or places
the institution on public probationary status, the agency promptly
reviews its accreditation or preaccreditation of the program to
determine if it should take adverse action against the program.
(3) The agency routinely shares with other appropriate recognized
accrediting agencies and State agencies information about the
accreditation or preaccreditation status of an institution or program
and any adverse actions it has taken against an accredited or
preaccredited institution or program.
(b) An accrediting agency is subject to the requirements contained
in paragraph (a) of this section if the accrediting agency knew, or
should have known, of the actions being taken by another recognized
accrediting agency or State agency.
(Authority: 20 U.S.C. 1099b)
Appendix
Analysis of Comments and Changes
(Note: This appendix will not be codified in the Code of Federal
Regulations.)
An analysis of the comments and the changes to the regulations
follows. General comments that refer to broad issues rather than a
specific section or sections of the proposed regulations are discussed
first, followed by a discussion of other issues in the order in which
they appeared in the NPRM.
It should be noted that not all comments are discussed in this
appendix. There are several reasons for this. First, many of the
concerns expressed by commenters were directed to the statute, not the
proposed regulations. In some instances, those comments are mentioned
in the discussion that follows because of the importance of the issues
that were raised. In most instances, however, they are not mentioned
because the Secretary is not legally authorized to make the changes
suggested by commenters. Second, many commenters made excellent
suggestions for editorial and technical changes, as well as other minor
changes, that, in the Secretary's opinion, strengthened the
regulations; the Secretary has merely incorporated these suggestions
without comment. For example, in Sec. 602.11(b)(1)(ii) the Secretary
received a comment that it was better to include third-party
information received by the Secretary, in addition to that solicited by
the Secretary. Third, some comments appeared to be based on
misunderstandings of what was actually in the NPRM. For example, a few
commenters expressed concern about the absence of a particular
provision that was, in fact, included in the NPRM. Fourth, several
comments appeared to be directed toward specific practices of currently
recognized accrediting agencies that commenters believed violated
either the proposed regulations or what the commenters believed to be
established accrediting practices. In general, these comments are not
discussed here, but Department staff will investigate these complaints
as part of the Department's ongoing monitoring of agencies.
General Comments
The Secretary received numerous comments about the overall impact
of the proposed regulations. In general, commenters opposed to the
proposed regulations believed that the NPRM did not achieve the
coordinated balance of responsibilities among the triad members that it
sought to achieve, and that it provided for extensive and duplicative
data collection and reporting requirements that created a costly and
unnecessary burden on the entire higher education community. Further,
they believed that the regulations did not regulate ``narrowly to the
law,'' as they purported to do. In general, these commenters suggested
that the Secretary should review each requirement in the proposed
regulations to determine if it was required by the statute and should
further ensure that all requirements that meet this test and are
included in the final regulations are implemented in the most
reasonable and cost effective manner. This, they believed, would ensure
the Department's compliance with Executive Order 12866.
The more specific concerns of commenters opposed to the proposed
regulations may be summarized as follows:
(1) The proposed regulations are overly prescriptive and excessive
in detail and either exceed the statutory authority of the Secretary or
significantly expand the statute beyond Congressional intent.
(2) The proposed regulations will force institutions to engage in
excessive and duplicative information gathering and reporting, at
considerable cost, with no net increase in the quantity or quality of
information available to the public, and will result in the diversion
of institutions' already scarce resources away from their primary
mission of providing a quality education.
(3) The proposed regulations compromise the integrity of
accreditation as a voluntary system of peer review and institutional
improvement; they dilute the focus and purpose of accreditation by
requiring accrediting agencies to assume responsibilities that are more
appropriate to the State or Federal government.
(4) The proposed regulations will create undue, duplicative, and
costly burdens on accrediting agencies for which they will receive no
reimbursement from the Federal government.
(5) The proposed regulations give the Secretary approval authority
over accrediting agencies' standards, which commenters believe is
expressly forbidden by the statute.
(6) The proposed regulations threaten the diversity of American
higher education and fail to focus oversight properly on vocational
institutions.
In addition to receiving comments in opposition to the proposed
regulations, the Secretary received many comments supportive of the
NPRM. Some commenters, for example, believed the accreditation process
needed a major overhaul, that accrediting agencies were far too
secretive in their actions, and there was genuine need for
substantially increased accountability of accrediting agencies to
students and the general public.
Finally, the Secretary received suggestions from several commenters
that the Department should strongly encourage all triad members to work
together and adopt the same or similar language for the various
standards, should collect the necessary data through a common source
such as readily available public information or IPEDS, and should use
common methodologies for various calculations such as completion or
withdrawal rates.
Discussion: As suggested by several commenters, the Secretary has
carefully reviewed each requirement in the proposed regulations in
light of statutory intent. The Secretary has also carefully considered
both the burden of the proposed regulations on institutions and
accrediting agencies, in terms of cost, duplication of effort, and the
added recordkeeping and reporting requirements. Similarly, the
Secretary has considered the benefits of the proposed regulations, not
just to institutions and accrediting agencies but to students and the
general public as well. A particular concern of the Secretary has been
how to ensure that the regulations hold the three members of the triad
accountable for the manner in which they fulfill their responsibilities
under the HEA yet still provide each member of the triad the
flexibility to determine the appropriate means to carry out those
responsibilities.
In general, the Secretary has responded to the concerns of
commenters by eliminating much of what was perceived as excessive
detail in the NPRM, thus providing accrediting agencies more
flexibility to meet a particular requirement in the manner that best
suits their needs and the needs and individual circumstances of the
institutions or programs they accredit. At the same time, however, the
Secretary has increased the accountability of agencies, as, for
example, by strengthening the requirements that accrediting agencies
must have effective standards and must monitor institutions or programs
carefully for continued compliance with those standards. The final
regulations make it quite clear that the Secretary regards accrediting
agencies as having primary responsibility for educational quality, but
they also make it clear that the Secretary holds accrediting agencies
accountable for the quality of the institutions or programs they
accredit.
The Secretary has also responded to the concerns of commenters by
eliminating a number of the specific reporting and recordkeeping
requirements the proposed regulations would have imposed on both
accrediting agencies and institutions and by allowing agencies and
institutions to work together to determine realistic requirements for
reporting and recordkeeping. At the same time, the Secretary holds
agencies accountable for the effectiveness of those requirements.
The Secretary believes this overall approach retains the principal
strength of the current accrediting system--a system of peer review
that focuses on the unique mission of each institution or program and
that fosters educational improvement consistent with that mission--but
effectively addresses the concerns with the current system that
Congress raised when it created the Program Integrity Triad to
strengthen institutional oversight.
To illustrate the effect of this overall strategy, the Secretary
offers as an example the changes to Sec. 602.26, Required accreditation
standards. This section now contains only the statutory language for
the 12 required standards. In this ``minimalist'' approach, the
regulations achieve the objectives of Executive Order 12866. By no
longer requiring institutions to provide annual audits to accrediting
agencies, the regulations reduce the paperwork burden on both
accrediting agencies and institutions at the same time they remove a
major source of costly duplication of effort by accrediting agencies
and the Department. By allowing agencies flexibility in establishing
standards for the 12 required areas, the regulations minimize any added
costs to institutions necessitated by the new requirements. Accrediting
agencies are no longer required to establish and maintain costly and
duplicative systems for collecting and maintaining specific information
about the institutions or programs they accredit. Now agencies may
tailor their systems to the mission, needs, and circumstances of those
institutions or programs and the students they serve. The overall
effect of the changes to this one section of the regulations is to
reduce cost, reduce burden, reduce paperwork, reduce duplication of
effort, and free accrediting agencies and institutions to focus on the
quality of education in all its manifestations.
The Secretary acknowledges that there is a potential risk with this
strategy, however. By giving accrediting agencies maximum flexibility
in these regulations, by giving SPREs corresponding flexibility in the
regulations for the State Postsecondary Review Program, and by
retaining authority for the Secretary to set specific requirements
implementing the certification process, the danger exists that
institutions will be burdened with reporting requirements that are
similar, but not identical, thus increasing not only the reporting
requirement but the recordkeeping requirement and cost as well. For
this reason, the Secretary strongly urges a coordinated approach to any
reporting requirement that may be imposed on institutions by the
regulations implementing the Program Integrity Triad. Specifically with
respect to accrediting agencies, the Secretary urges agencies to impose
reporting requirements on the institutions or programs they accredit
only after they carefully examine any publicly available information
related to those requirements, any similar reporting requirements
imposed on institutions by either the Department or the State
Postsecondary Review Entities under the State Postsecondary Review
Program, and any methodologies currently used, or mandated for use, by
institutions in calculating the required information. The Secretary
hopes that by bringing this potential risk of increased burden on
institutions to the attention of the entire higher education
community--without specifically addressing it in regulation--the
community can work together to prevent undue burden at the same time it
ensures proper accountability. The Secretary expects to take a
leadership role in implementing a coordinated strategy to manage the
triad, with the goal of maximizing effectiveness while minimizing
burden, duplication, and inconsistencies among accrediting agencies,
SPREs, and the Department.
As several commenters raised the issue of Secretarial approval
authority over an accrediting agency's standards, the Secretary
believes it is necessary to respond. It is the Secretary's belief that
section 496(a) of the HEA statute gives the Secretary explicit approval
authority over an agency's standards in the context of the Secretary's
overall responsibility for determining whether the agency is a reliable
authority as to the quality of education or training offered by the
institutions and programs it accredits.
Finally, with regard to the issue of whether the regulations
properly focus on vocational institutions, the Secretary wishes to note
that Congress found abuses in all sectors of higher education, not just
the vocational sector. For this reason, the regulations apply to all
institutions, with the exception of the requirement of unannounced
inspections to institutions that provide vocational education.
Changes: The specific changes to the regulations are discussed
below.
Subpart A--General Provisions
Section 602.1 Purpose.
Comments: The Secretary received several comments about the
requirement that Secretarial recognition is now limited to those
accrediting agencies that accredit institutions of higher education or
higher education programs for the purpose of enabling those
institutions or programs to establish eligibility to participate in
programs administered either by the Secretary or by other Federal
agencies. In general, commenters expressed concern that the requirement
would cause many of the currently recognized specialized or
programmatic accrediting agencies to lose recognition. Commenters
believed that failure to include these agencies on the list of
nationally recognized accrediting agencies was counter to the purpose
of the list, which they believed was to inform the public of those
accrediting agencies that the Secretary determined to be reliable
authorities as to the quality of education or training provided by the
institutions or programs they accredit. Commenters also believed that,
in general, institutional accrediting agencies did not examine in depth
the individual programs offered by an institution and that the only
assurance of the quality of these programs was provided by the
programmatic agencies that accredited them. It was suggested by some
commenters that the Federal purpose would be better served if the
specialized or programmatic accrediting agencies and the institutional
accrediting agencies worked together to assess the quality of
education.
One commenter urged a broad interpretation of the phrase ``for
other Federal purposes'' in section 496(a) of HEA to include a whole
range of benefits that accrue to the Federal Government by virtue of
the Secretary's recognition of an accrediting agency, including the use
of an individual's graduation from a program accredited by a nationally
recognized accrediting agency for entry-level qualifications for
Federal employment.
Some commenters expressed concern that the language in
Sec. 602.1(b)(1) and (2) was misleading because the purpose of
accreditation was not to enable institutions or programs to establish
eligibility to participate in Federal programs. A number of these
commenters provided specific suggestions for amending the language to
address this concern.
Finally, the Secretary received a suggestion to reorganize this
paragraph so that it, rather than Sec. 602.3, provided a summary of the
recognition requirements an accrediting agency must meet in order to be
recognized by the Secretary.
Discussion: The Secretary acknowledges that the many fine
programmatic accrediting agencies currently on the list of nationally
recognized accrediting agencies provide an excellent measure of quality
assurance in their respective fields of specialization. However,
section 496(m) of the HEA makes it clear that the Secretary may
recognize only those agencies that accredit institutions of higher
education or higher education programs for the purpose of enabling
those institutions or programs to establish eligibility to participate
in programs administered either by the Secretary or by other Federal
agencies.
The Secretary does not believe that the broader interpretation of
the phrase ``for other Federal purposes'' in section 496(a) suggested
by the one commenter is legally supportable because section 496(m)
clearly defines the purpose an agency's accreditation must serve it if
is to be recognized by the Secretary, namely the agency's accreditation
must enable the institutions or programs it accredits to establish
eligibility to participate in Federal programs.
The Secretary understands that the purpose of accreditation is not
to enable institutions or programs to establish eligibility to
participate in Federal programs but rather to publicly recognize those
institutions or programs that meet an accrediting agency's standards
for educational quality. The Secretary appreciates the various
suggestions for clarifying this in the regulations and has changed
these regulations accordingly.
Finally, the Secretary appreciates the suggestion for reorganizing
this paragraph to summarize the recognition requirements and believes
it is helpful.
Change: The language in Sec. 602.1(b) has been modified to clarify
that an agency's accreditation of an institution or program must be a
required element in enabling the institution or program to establish
eligibility to participate in Federal programs. The section has been
reorganized to clarify the recognition requirements accrediting
agencies must meet if they wish to be recognized by the Secretary.
Section 602.2 Definitions
Accreditation
Comments: Several commenters noted that the word ``qualifications''
was either misleading or redundant and that the word ``policies'' or
``procedural requirements'' would be more appropriate.
Discussion: The word ``qualifications'' in the definition, which is
the same definition as that used in previous regulations, does not
refer to either policies or procedural requirements. Rather, it refers
in general to the various requirements for accreditation that an
accrediting agency might have. For example, an institution located in
New York might meet all of the accreditation standards of the New
England Association of Schools and Colleges (NEASC), but it is
ineligible for accreditation by NEASC because it is not located in New
England.
Change: The term ``qualifications'' has been replaced by the term
``requirements.''
Adverse Accrediting Action
Comments: One commenter felt the definition could be strengthened
to ensure that agencies had a variety of useful sanctions, the
application of which were not automatically appealable under
Sec. 602.28(a)(5). Another felt that the term should be uniformly
defined by all accrediting agencies to reduce the possibility of
misunderstanding arising from the use of different definitions.
Discussion: For purposes of these regulations, the Secretary has
defined the term ``adverse accrediting action'' to include, as a
minimum, those actions initiated by an accrediting agency that result
in an institution or program losing its accreditation. However, the
Secretary believes accrediting agencies should be free both to define
other actions they consider to be adverse accrediting actions and to
establish other sanctions that are not automatically appealable by the
institution or program.
Change: None.
Branch Campus
Comments: In general, commenters expressed concern that the
definition of ``branch campus'' was inconsistent with its use in
Sec. 602.27 and that there was no statutory basis for including
``additional locations'' in the requirement for special actions by
accrediting agencies when an institution opened a branch campus.
Discussion: Under 498(j) of the HEA, the Secretary is charged with
defining the term ``branch campus'' for purposes of Title IV of the
HEA. Generally, when the Secretary defines a term, the term is defined
in the same manner for any and every Title IV, HEA purpose.
Accordingly, the Secretary adopted the definition of the term ``branch
campus'' that was proposed in the Institutional Eligibility
regulations, 34 CFR Part 600, in the proposed accreditation
regulations. However, the Secretary realized that particular definition
was too narrow to carry out the purposes of sections 496(c) (2) and (3)
of the HEA, under which an institution that establishes a branch campus
must file a business plan with its accrediting agency and the agency
must conduct a site visit at the branch campus within six months of its
establishment. Therefore, in Sec. 602.27 of the NPRM, the Secretary
imposed the requirements relating to branch campus on ``additional
locations'' as well.
For program and administrative reasons, the Secretary has
determined to keep the narrow definition of the term ``branch campus''
in the Institutional Eligibility regulations. However, the Secretary
has adopted a different definition of ``branch campus'' for these
regulations because that different definition is more in keeping with
the statutory requirements of section 496(c). The Secretary believes
this different definition is preferable because it provides assurances
to students who enroll at any location of an institution that offers a
substantial portion of an educational program that the location has the
resources to operate, and is operating, in compliance with accrediting
agency standards.
Change: The definition has been revised to include locations that
meet the definition of this term in 34 CFR 600.2, which is basically
the same definition as in the NPRM, and any other locations at which an
institution offers at least 50 percent of an educational program.
Section 602.27 has been revised to eliminate any reference to
``additional location.''
Prebaccalaureate Vocational Education
Comments: The Secretary received numerous comments on the
definition of this term and the corresponding term, ``vocational
education.'' Many commenters believed there was no statutory basis for
the distinctions in the NPRM and that the use of the term improperly
targeted a particular segment of higher education for burdensome and
unwarranted sanctions. Among commenters who expressed an opinion on the
various definitions under consideration, responses were divided. Some
preferred a definition that excluded any type of vocational education
that led to a degree, while others felt the definition should include
all prebaccalaureate vocational education regardless of the credential
awarded.
Discussion: See discussion below under ``vocational education.''
Change: The term ``prebaccalaureate vocational education'' has been
deleted from the regulations.
Representative of the Public
Comments: The Secretary received two suggestions for changing this
definition. One was to allow members of the governing board of
affiliated nonprofit institutions to represent the public. The other
was to exclude close relatives of students or employees at affiliated
institutions.
Discussion: The Secretary believes that members of the governing
board of affiliated non-profit institutions can make valuable
contributions to an accrediting agency but should not do so in the
capacity of a representative of the public. The Secretary also believes
the exclusion of spouses, parents, children, and siblings of employees
of affiliated institutions is appropriate and that the exclusion ought
to extend to close relatives of other individuals listed in the
definition. On the other hand, the Secretary believes students, who are
the consumers in this instance, and their families can serve a useful
role as representatives of the public.
Change: The definition has been revised to exclude close relatives
of individuals listed in the definition from serving as representatives
of the public.
Teach-out Agreement
Comments: The Secretary received a suggestion to include in the
definition specific criteria for what constitutes the ``equitable
treatment of students.'' The Secretary also received a suggestion to
delete the definition because the Department's previous teach-out
regulations, issued January 1993, were rescinded.
Discussion: The requirement that accrediting agencies have
standards for teach-out agreements is specified in section 496(c)(4) of
the HEA and is independent of any Department regulation that may or may
not be in effect regarding teach-out agreements. The Secretary believes
the inclusion of provisions for what constitutes equitable treatment of
students under a teach-out agreement is a useful addition to the
regulations but believes these provisions should be included in
Sec. 602.27(b)(6), where the requirement for teach-out agreements is
described, rather than in the definition section.
Change: None. However, the specific criteria for what constitutes
equitable treatment of students have been added to Sec. 602.27(b)(6).
Vocational Education
Comments: The Secretary received numerous comments on the
definition of this term and the corresponding term, ``prebaccalaureate
vocational education.'' Many commenters preferred a broad definition
that treated all institutions offering any type of vocational education
the same way. Others preferred a definition that excluded programs
leading to any type of degree. Some commenters suggested a definition
similar to that in the Carl D. Perkins Vocational and Applied
Technology Education Act. Others suggested different approaches to the
issue, including the use of the term ``nonacademic education program,''
which they defined to be the opposite of an academic education program,
as they believed that term was defined in the Department's clock hour/
credit hour regulations. Still others preferred a definition that
restricted the term to institutions whose predominant offerings were
vocational, with ``predominant'' defined to mean more than 75 percent
of an institution's offerings. Almost all commenters preferred that the
same definition be used in both the accreditation and SPRE regulations.
Discussion: The Secretary has carefully considered all comments
received on this issue, as well as those on the broader issue of the
burden these regulations would impose on institutions and accrediting
agencies. While the Secretary agrees that it would be best if these
regulations and those for the State Postsecondary Review Program used
both the same term and the same definition of that term, the Secretary
is aware that the statute uses the term ``vocational education'' for
accreditation and ``vocational program'' for the State Postsecondary
Review Program. Consequently, the Secretary believes the appropriate
term for the accreditation regulations is ``vocational education'' and
for the SPRE regulations ``vocational program.'' However, despite the
difference in the specific term used, the Secretary believes that the
definition of both terms should be the same.
The Secretary has examined all of the proposed definitions for the
accreditation and SPRE regulations and believes that the IPEDS glossary
definition of an ``occupationally specific program'' most closely meets
the needs of both regulations. The Secretary has modified this
definition slightly, however, to meet the specific needs of
accreditation and the State Postsecondary Review Program. Thus, in the
accreditation regulations, the term ``vocational education'' is defined
to be an instructional program, below the bachelor's level, designed to
prepare individuals with the skills and training required in a specific
trade, occupation, or profession related to the instructional program.
The identical definition is used in the SPRE regulations for a
``vocational program.'' While the definition differs slightly from the
exact wording in the IPEDS definition, the Secretary wishes to make
clear that the list of occupationally specific programs provided by
IPEDS defines the instructional programs that, if offered by an
institution, cause the institution to be subject to unannounced
inspections by the institution's accrediting agency, as specified in
Sec. 602.24.
Change: The term ``vocational education'' has been redefined as
indicated above under the Discussion section.
Section 602.3 Organization and Membership
Comments: A few commenters expressed concern about the requirement
in section 496(a) of the HEA that accrediting agencies whose
accreditation enables the institutions they accredit to participate in
programs authorized under the HEA must be administratively and
financially separate from and independent of any related, associated,
or affiliated trade association or membership organization. These
commenters believed that this requirement would force many agencies to
undergo a major restructuring simply to come into technical compliance
with this provision despite the fact that there was no evidence their
present structure in any way compromised the integrity of their
accrediting decisions.
The Secretary also received some comments about the provisions for
a waiver of the ``separate and independent'' requirements. Most of
these were directed to specific circumstances that exist, or might
exist, in the case of a particular accrediting agency seeking a waiver.
The Secretary also received a suggestion that accrediting agencies
should have to seek the waiver each time they applied for recognition,
or renewal of recognition, by the Secretary.
Discussion: The general concern about the new organization and
membership requirements is directed to the law, not the regulations. As
the language in Sec. 602.3 merely restates the requirements of the law,
it cannot be changed.
With regard to the waiver of the ``separate and independent''
requirements, the Secretary believes the specific circumstances
described by various commenters about a particular accrediting agency
should be addressed in the context of that agency's application for the
waiver, not through regulation. The Secretary accepts the suggestion to
stipulate in regulation that an agency must seek a waiver each time it
applies for recognition or renewal of recognition.
Change: A requirement has been added that accrediting agencies must
seek a waiver of the ``separate and independent'' requirement each time
they apply for recognition or renewal of recognition.
Section 602.4 Submission of Information to the Secretary by Recognized
Accrediting Agencies
Comments: The Secretary received numerous comments that the
proposed requirement in Sec. 602.4(e)--that an accrediting agency had
to submit to the Secretary, upon request, information to assist the
Secretary in resolving problems with any institution or program
accredited by the agency--exceeded the statute and failed to
distinguish adequately between public and private information
maintained by accrediting agencies. Commenters generally believed that
this requirement put accrediting agencies in the position of being
required to do the Secretary's work and threatened to compromise the
inherent value of the peer review system on which accreditation is
based. Some of these commenters believed that Sec. 602.4(e) should be
deleted in its entirety, while others suggested that the information to
be provided by accrediting agencies should be restricted either to the
accreditation status of an institution or program or to the minimum
information needed to fulfill the intent of the law.
Not all commenters were opposed to Sec. 602.4(e), however. Some
supported it as written. Some stated their opinion that the less
confidential information accrediting agencies kept the better. Several
of these commenters suggested that a protocol be developed for the
sharing of information and that there should be a single office within
the Department that served as contact with accrediting agencies for the
purpose of information sharing. One commenter suggested that
accrediting agencies be given time to negotiate a new understanding of
the information sharing concept with institutions because, as important
as the concept was, it was generally in conflict with most agencies'
policies on confidentiality. One commenter, while expressing general
support for information sharing, cautioned against requiring
information to be shared before it was confirmed in fact, the
institution had received due process, and any applicable appeals were
complete. Many commenters suggested that a possible solution that would
allow the Secretary access to the information the Secretary needed
without placing agencies in the position of doing the Secretary's work
was the use of an administrative subpoena by the Department.
Of general concern to all commenters on the issue of information
sharing was the kind of information shared by an accrediting agency
about an accredited institution or program that would be obtainable by
anyone under the Freedom of Information Act (FOIA).
With regard to the comment in the NPRM that the Secretary was
considering adding to this section a requirement that an accrediting
agency must refer to the Department's Office of Inspector General any
fraudulent activities it discovers on the part of an institution or
program it accredits, provided that institution or program participates
in Title IV, HEA programs, the Secretary received strong support for
the general concept but some concern about agencies' liabilities should
the institution or program be subsequently found not to have engaged in
fraud. Commenters also urged the Secretary to substitute for the term
``fraud,'' which has a very precise legal definition, something more
general like ``substantial wrongdoing'' or ``serious abuse.''
Finally, several commenters noted that there was no provision in
the proposed regulations that paralleled the proposed requirement in 34
CFR part 667 that the Secretary notify the State postsecondary review
entity of Federal actions against an institution. Commenters also
suggested that the State postsecondary review entity should be required
to notify an accrediting agency of the outcome of any review of an
institution accredited by the agency that it makes under the State
Postsecondary Review Program.
Discussion: The Secretary is aware that most accrediting agencies
currently have confidentiality policies that prevent them from
releasing information about an accredited institution or program to a
third party without the prior approval of the institution. The
Secretary is also aware that confidentiality is an important aspect of
the peer review system on which accreditation is based.
However, the Secretary notes that under section 487(a)(15) of the
HEA, by entering into a Title IV, HEA program participation agreement,
an institution acknowledges the authority of the Secretary, accrediting
agencies, State postsecondary review entities, and others to share with
each other information pertaining to the institution's eligibility to
participate in Title IV, HEA programs and any information on fraud or
abuse by the institution. Therefore, institutions can have no genuine
expectation that information they provide to their accrediting agencies
pertaining to their Title IV, HEA program responsibilities, fraud, or
abuse will be kept confidential from the Secretary or these other
entities. Accordingly, the Secretary has revised Sec. 602.4(e) to
reflect that statutory provision. Thus, the information the Secretary
may request from an accrediting agency under Sec. 602.4(e) is limited
to information concerning an accredited or preaccredited institution's
compliance with its Title IV, HEA program responsibilities, including
its eligibility to participate in Title IV, HEA programs. As a result,
an agency does not have to provide the Secretary with copies of an
institution's self-study report, reports of on-site evaluations of the
institution by the accrediting agency, or other documents maintained by
the agency about the institution for the purpose of determining the
institution's compliance with the agency's standards. However, the
agency must provide any information contained in those documents that
is relevant to the institution's compliance with its Title IV, HEA
program responsibilities. The Secretary notes that, as discussed in
connection with Sec. 602.10, an accrediting agency must provide any
document the Secretary requests relating to whether the agency is
complying with the requirements of this part.
The Secretary appreciates the suggestion to develop a protocol for
information sharing. As this suggestion relates to the Secretary's
management of a regulatory provision, however, it does not need to be
addressed in regulation. The Secretary intends to work with agencies to
develop an appropriate protocol for information sharing, which will
address the concerns raised about both the types of information
releasable under a FOIA request and a central point of contact within
the Department for the exchange of information.
The Secretary acknowledges the difficulties in requiring
accrediting agencies to report ``fraud'' or ``suspected fraud.'' As the
statutory provision for information sharing specifically refers to
fraud and abuse, however, the Secretary has added a provision to
Sec. 602.4 that requires agencies to notify the Secretary if they have
reason to believe that an institution may be engaged in fraud or abuse.
The Secretary has also added a provision requiring agencies to notify
the Secretary if they have reason to believe an institution or program
is not meeting its Title IV, HEA program responsibilities.
The Secretary acknowledges the importance of sharing with
accrediting agencies information about Federal actions against
accredited institutions but believes that information sharing goes
beyond the cases identified by commenters to include notification to
agencies when an accredited institution is referred for review under
the State Postsecondary Review Program. The Secretary also acknowledges
the importance of having the State postsecondary review entity notify
accrediting agencies of the results of its reviews but believes this
requirement is more appropriately placed in 34 CFR Part 667 rather than
34 CFR Part 602. The Secretary notes that an accrediting agency's
responsibility for notifying State postsecondary review entities about
its decisions is discussed in Sec. 602.29 of these regulations.
Changes: Section 602.4(e) has been revised to indicate that any agency
must comply with the Secretary's request for information that is
related to the institution's or program's compliance with its Title IV,
HEA program responsibilities, including its eligibility to participate
in Title IV, HEA programs. The Secretary has removed the limitation on
an agency's duty to share information only in those situations where it
does not conflict with accrediting agencies' policies on
confidentiality. A requirement has been added that an accrediting
agency must notify the Secretary if the agency has reason to believe an
institution or program is not meeting its Title IV, HEA program
responsibilities or is engaged in fraud and abuse. A new section
(Sec. 602.5) has been added outlining the Secretary's responsibilities
for notifying accrediting agencies of Federal actions against
accredited institutions or programs or referral of institutions to
States under the State Postsecondary Review Program.
Subpart B--Recognition and Termination Procedures
Section 602.10 Application for Recognition.
Comments: The Secretary received many comments that the statute
only allows the Secretary access to an accrediting agency's records,
personnel, and facilities, on an announced or unannounced basis, during
the application and review process, not during the entire recognition
period. Some commenters described the Secretary's access as so broad
that it constituted unwarranted search and seizure without probable
cause. Some commenters were especially concerned about the possible
release under a FOIA request of an agency's confidential materials that
Department personnel examined as part of the Secretary's evaluation of
an agency's application for recognition. With regard to the provision
for unannounced visits by the Secretary, the Secretary received
suggestions both to limit and not limit the use of these visits.
The Secretary received a number of comments that the application
process and related recordkeeping requirements were particularly
burdensome on accrediting agencies and that the burden reported in the
Federal Register grossly underestimated the burden imposed by the
regulations. Other commenters, however, believed that the application
and recordkeeping requirements were not in any way burdensome and that
the Secretary was requesting only the minimum amount of information
needed to determine whether an agency was a reliable authority as to
the quality of education or training provided by the institutions or
programs it accredited.
With regard to the suggestion in the NPRM that the Secretary was
considering allowing agencies to provide a simple statement of
assurance that they complied with the requirements for recognition so
as to reduce the burden on agencies applying for recognition, there was
mixed reaction. Some commenters welcomed the simplification as a
reduction in burden, but others thought it invited abuse and provided
no protection of the public interest. Still others felt that the first
review of an agency under the new regulations should be extremely
thorough, but thereafter the simple assurance approach was reasonable.
Finally, the Secretary received a request to include in the
regulations the provision contained in the statute that the Secretary
shall give priority for review to those agencies whose institutions
participate most extensively in Title IV, HEA programs and those
agencies that are subject to the most complaints or legal actions.
Discussion: The Secretary believes that the statute requires the
Secretary to ensure that recognized accrediting agencies stay in
compliance with the requirements for recognition throughout the
recognition period. Consequently, the Secretary believes the statute
authorizes the Secretary to have access to an accrediting agency's
records, personnel, and facilities not only during the application and
review process but throughout the recognition period as well.
Regarding concerns about possible release of confidential agency
materials under a FOIA request, the Secretary wishes to assure agencies
that there are provisions under FOIA that protect most of the types of
information the Secretary expects to obtain from agencies for purposes
of Sec. 602.10(b). For example, if the Secretary determined that an
accrediting agency's actions with respect to three institutions clearly
demonstrated the agency's failure to comply with the recognition
requirements, the Secretary would not be required to release the names
of the three institutions under a FOIA request. The Secretary would, of
course, identify the institutions to the accrediting agency so that the
agency would have a clear understanding of the basis on which the
Secretary reached the determination that it failed to meet the criteria
for recognition. While the Secretary will protect confidential agency
materials to the full extent allowed under FOIA, the Secretary wishes
to make it clear that this does not prevent the Secretary from using
those materials against an agency should the Secretary determine that
the agency is in violation of the criteria for recognition.
Regarding unannounced visits by the Secretary, which are authorized
by the statute, the Secretary believes the use of such visits is a
managerial decision and need not be regulated.
With regard to the overall burden reported in the Federal Register,
the Secretary wishes to note that the estimate was based in part on
information provided to the Secretary by various accrediting agencies
as to the time required to complete an application and to meet other
requirements contained in the NPRM. It was also based on the assumption
that the Secretary would adopt the simple assurance approach described
in the NPRM.
Finally, with regard to both the use of a simple assurance
statement to simplify the application process and the inclusion of a
set of review priorities, the Secretary believes these relate to the
management of the recognition process and do not need to be addressed
in regulation. The Secretary wishes to make it clear, however, that it
is the Secretary's intent to minimize the overall burden to agencies
through a simplification of the entire application process.
Change: The section that detailed the conditions under which the
Secretary uses unannounced visits to determine an agency's compliance
with the recognition requirements has been deleted. The phrase
``analysis of'' in Sec. 602.10(a)(2) has been replaced with ``evidence
of'' to conform to the simple assurance approach.
Section 602.11 Preliminary Review by the Secretary
Comments: Section 602.11(b)(2) of the proposed regulations provided
that the Secretary's evaluation of an agency should include a review of
information directly related to the institutions or programs accredited
by the agency, as this information relates to the institution's or
program's compliance with the agency's standards, the effectiveness of
those standards, or the agency's application of those standards. The
Secretary received a number of comments that supported this provision.
In general, these commenters felt that it was important for the
Secretary to monitor the extent to which individual agencies continued
to accredit institutions that engage in fraud or abuse, particularly
abuse of the Title IV, HEA programs. The Secretary received many more
comments, however, that this provision was inappropriate and also
redundant, given the provisions contained in Sec. 602.11(b)(1)(i-iii).
These commenters also believed the provision gave the Secretary
approval authority over an agency's accreditation standards, which, in
their opinion, was contrary to the statute.
The Secretary also received some comments related to the sharing of
information used by the designated Department official to reach
conclusions regarding an agency's compliance with the requirements for
recognition. In general, these commenters wanted the regulations to
specify time frames for an agency's written response to the Department
staff analysis concerning its application for recognition, to require
the designated Department official to share with the agency all
information used in reaching a decision about the agency's application,
to require the Department to forward to an agency written reports on
any announced or unannounced site visits, file reviews, or other
reviews of the agency, and to allow the agency the opportunity for
response to all these reports.
Finally, a number of commenters suggested that the regulations
should include a requirement that the Secretary must publish a notice
in the Federal Register when an accrediting agency is being considered
for recognition and must also notify the State postsecondary review
entities.
Discussion: The Secretary believes that the designated Department
official's review of information directly related to institutions or
programs accredited by an agency is central to the issue of whether the
agency is a reliable authority as to the quality of the institutions of
programs it accredits. Therefore, this provision must be retained. The
Secretary notes that any information provided by the agency in
accordance with Sec. 602.4(e) of these regulations may also be reviewed
by the designated Department official during any evaluation of the
agency for compliance with the requirements for recognition.
With regard to the suggestion for including various time frames in
this section, the Secretary appreciates the concerns that led
commenters to request time frames and, consequently, agrees to include
them in this section. The Secretary does not believe that agencies
should have the right to receive a written report after every
monitoring activity conducted by the designated Department official as
these activities are conducted for the general purpose of gathering
information about an agency's compliance with the requirements for
recognition and, in that sense, are ``predecisional.''
Finally, it is already a requirement, under the Federal Advisory
Committee Act, that the Secretary must publish an announcement of each
Advisory Committee meeting, including those at which accrediting
agencies are considered for recognition, but the Secretary acknowledges
the importance of making that practice clear in these regulations. The
Secretary also acknowledges the importance of notifying the State
postsecondary review entities whenever an agency is being considered
for recognition.
Changes: Time frames have been added for providing analyses and
supporting documentation to an accrediting agency before the Advisory
Committee meets on that agency's application for recognition. A
provision for notifying State postsecondary review entities and other
appropriate organizations of an agency's application for recognition
has also been added. Finally, a provision has been added requiring the
Secretary to publish a notice of the Advisory Committee meeting in the
Federal Register and to invite interested parties to make presentations
before the Advisory Committee.
Section 602.13 Review and Decision by the Secretary
Comments: Some commenters objected to the provision that the
Secretary could decide to recognize an agency even if it did not meet
all of the requirements for recognition, provided the Secretary
determined that the noncompliance did not impair the agency's
effectiveness. These commenters were particularly concerned that an
accrediting agency that failed to meet a particular requirement might
be recognized even though the reasons it failed to meet that
requirement were within its control to correct. Other commenters,
however, commended the Secretary's willingness to determine the
appropriateness of a waiver when an agency's noncompliance with one or
more requirements for recognition did not limit the effectiveness of
the agency. To these commenters, the Secretary's flexibility was a
demonstration that the Secretary sought a working partnership with
accrediting agencies that was based on performance and trust.
With regard to an appeal of an Advisory Committee recommendation,
some commenters felt that the 30-day time frame was too short. Other
commenters requested that, in addition to the designated Department
official and the agency, third parties be allowed to contest an
Advisory Committee's recommendation concerning the recognition of an
agency.
Finally, several commenters felt that the regulations should
contain a time frame for the Secretary to make a decision regarding an
agency's application for recognition.
Discussion: While the Secretary appreciates the concern of the
commenters about granting recognition to an agency that does not meet
all of the requirements for recognition, the Secretary believes that
some flexibility is needed so that the Secretary may grant recognition
to an agency that fails to meet all of the requirements, even if the
circumstances are within the agency's ability to control.
The Secretary understands the concerns raised about the 30-day time
frame for appealing an Advisory Committee recommendation. However, the
Secretary wishes to note that an agency already has two opportunities
prior to the Advisory Committee's recommendation during which it may
state its case as to why a negative recommendation concerning its
application for recognition is unwarranted. First, the agency may
respond in writing to a negative recommendation by the designated
Department official before that recommendation is forwarded to the
Advisory Committee. Second, agency representatives have an opportunity
to appear in person before the Advisory Committee to argue against a
negative recommendation. Because of these two opportunities, the
Secretary does not believe the 30-day time frame after the Advisory
Committee makes its formal recommendation is unrealistic.
With regard to third parties appealing an Advisory Committee
recommendation, the Secretary believes that the appropriate place for
third-party comment is before the Advisory Committee reaches its
decision on a recommendation, not after. With regard to a time frame
for the Secretary's decision, the Secretary believes that this is
appropriately a management issue and does not need to be specified in
regulation.
Change: None.
Section 602.14 Limitation, Suspension, or Termination of Recognition
Comments: The Secretary received a suggestion from several
commenters that any agency subject to the limitation, suspension, or
termination of its recognition should be allowed to challenge the
membership of the subcommittee that conducts a hearing on its case if,
in fact, a subcommittee, rather than the full Advisory Committee, hears
the case. Commenters believed a challenge should be allowed on the
grounds of either conflict of interest or lack of expertise in either
the type of agency subject to the action or its scope of accrediting
activity. The Secretary also received a suggestion that the
subcommittee should consist of five, rather than three, members and
another suggestion that all negative actions recommended by the
subcommittee should be discussed and acted upon by the full Advisory
Committee. One commenter suggested that an agency, rather than the
Secretary, should be allowed to select members of the subcommittee.
Finally, the Secretary received several comments that the 30-day
frame for an agency to respond to the designated Department official's
notice of intent to limit, suspend, or terminate the agency's
recognition was too short.
Discussion: Given the seriousness of the situation that would
prompt the use of a subcommittee rather than the full Advisory
Committee, the Secretary accepts the suggestion to expand its size.
However, the Secretary believes the same seriousness that necessitates
the use of a subcommittee demands prompt resolution by the
subcommittee. Similarly, the Secretary does not accept the suggestion
that the agency should be allowed to choose members of the
subcommittee. Regarding an agency's right to challenge the composition
of the subcommittee, it is the Secretary's intent to appoint to the
subcommittee individuals who have no known conflict of interest.
However, the Secretary acknowledges that there may be instances unknown
to the Secretary in which a conflict of interest may exist with a
subcommittee member. For this reason, the Secretary believes a
challenge to the membership of the subcommittee on grounds of conflict
of interest is warranted. The Secretary does not believe that a
challenge on the basis of lack of expertise is justified because the
members of the Advisory Committee from which the membership of the
subcommittee is chosen have general expertise in the areas that come
under the purview of the committee.
With regard to the 30-day time frame for responding to a notice of
intent to limit, suspend, or terminate recognition, the Secretary
believes that the seriousness of the situation that prompts such a
notice demands equally prompt resolution to protect the public
interest.
Changes: The size of the subcommittee has been increased from three
to five members. Agencies are now allowed to challenge the composition
of the subcommittee on grounds of conflict of interest.
Section 602.15 Requests for Reconsideration of the Secretary's
Decision
Comments: In response to the Secretary's question in the NPRM as to
whether this provision should be retained, given the additional appeal
opportunities for an agency before the Secretary decides on its
application, the Secretary received mixed responses. Several commenters
felt the provision was superfluous. Those who did not had various
suggestions for changing the procedures, from changing the time frames
to clarifying the grounds for reconsideration.
Discussion: The Secretary concurs with the assessment of the
commenters who believed that the provision for reconsideration was
superfluous in light of the additional appeals procedures provided to
agencies before the Secretary reaches a decision.
Change: The section has been deleted.
Section 602.16. Appeals Procedures
Comments: One commenter felt that this section was unnecessary
because agencies can always appeal to the courts. Other commenters
expressed concern that the NPRM did not provide for a meaningful appeal
of adverse recognition decisions, as required by the statute. These
commenters generally suggested using an intermediate administrative
appellate body, such as an administrative law judge, to hear appeals.
Other commenters supported the provision as written, fearing that an
alternative administrative process within the Department would deplete
the Department's resources inappropriately.
Discussion: The Secretary continues to believe, as described in the
NPRM, that there can be no administrative appeal within the Department
of a Secretarial decision since the Secretary, as head of the
Department, makes all final decisions on behalf of the Department. The
only appeal is through the courts. The Secretary wishes to note,
however, that an agency for which the Advisory Committee recommends
denial of recognition is afforded an opportunity to contest that
recommendation before the Secretary reaches a final decision. To delay
the Secretary's final decision by adding still another layer of appeal
is, in the Secretary's opinion, unwarranted.
Change: None.
Subpart C--Criteria for Secretarial Recognition
Section 602.20 Geographic Scope of Recognition
Comments: The Secretary received one comment on this section from
an individual who was concerned that the regulations might be construed
to preclude a State from accrediting foreign and out-of-state
institutions.
Discussion: Any accrediting agency, including a State, is free to
define the geographic area for which it seeks recognition. In granting
recognition, the Secretary defines the geographic area included in the
agency's scope of recognition, which may or may not be the full
geographic area requested by the agency. The Secretary bases the
decision regarding the agency's geographical area of recognition on
whether the agency is a reliable authority regarding the quality of
education provided by the institutions it accredits throughout its
geographic region.
Change: None.
Section 602.21 Administrative and Fiscal Responsibility
Comments: A number of commenters described the recordkeeping burden
imposed by the proposed regulations as unduly onerous and in violation
of Office of Management and Budget (OMB) guidelines that limit record
retention requirements to three years. Several commenters indicated
that the requirement to keep self-study reports for two complete
accreditation or preaccreditation cycles was especially burdensome
because of the large volume of materials typically included with these
reports.
On other issues related to this section, one commenter felt that,
to avoid conflicts of interest, members of the agency's decision making
body should not also be members of the agency's governing board.
Another believed that the Secretary should not have authority to
determine whether an agency's staff is adequate, knowledgeable, and
competent.
Discussion: With regard to the record retention requirement, the
Secretary wishes to note that the requirement to keep records for two
complete accreditation or preaccreditation cycles first appeared in the
1988 regulations governing the recognition of accrediting agencies. The
NPRM for those regulations had initially included a provision for the
indefinite retention of records. This was subsequently reduced to the
current two-cycle requirement as a result of public comment on the
recordkeeping burden.
The Secretary also wishes to note that the specific comment about
the burden of keeping self-study reports for two full cycles was made
by negotiators during the negotiated rulemaking sessions for these
regulations. As a result, the Secretary carefully monitored the review
of self-study reports by Department staff members conducting file
reviews at agencies' headquarters during the past year and has
determined that only the most recent self-study reports are
particularly useful to staff. Consequently, the recordkeeping
requirement for self-study reports has been reduced to the most recent
report only.
With regard to the potential conflict of interest when the same
individuals serve as members of both the decision making body and the
governing board of an agency, the Secretary appreciates the concern but
believes that agencies should be allowed the flexibility to determine
the composition of these bodies that best suits their needs. Further,
as all agencies are required to have adequate policies dealing with
conflicts of interest, the Secretary believes there is adequate
protection of the public interest.
Concerning the issue of the Secretary's review of an agency's
staff, the Secretary believes that the adequacy, knowledge, and
capability of an accrediting agency's staff are appropriate factors to
be considered in making a determination regarding whether the agency
has the administrative responsibility to carry out its accrediting
activities.
Change: Agencies must keep only the most recent self-study report.
Section 602.22 Demonstration of Accreditation Experience
Comments: Several commenters requested that accrediting agencies be
required to demonstrate that their policies, evaluation methods, and
decisions are accepted throughout the United States by recognized
accrediting agencies. Their rationale was that acceptance by recognized
agencies provided an important measure of an agency's reliability.
Discussion: The commenters' rationale was presented to the
Department by the non-Federal negotiators during negotiated rulemaking,
and the Secretary acknowledges that demonstration of acceptance by
recognized accrediting agencies can be an important factor to consider
when evaluating an agency seeking recognition, particularly one seeking
initial recognition. On the other hand, those interested in forming new
accrediting agencies have expressed concern that this requirement
imposes unfair hurdles for them and unduly stifles competition among
accrediting agencies. The Secretary believes that agencies should not
be required to demonstrate acceptance by recognized accrediting
agencies but may certainly do so in their application for recognition,
if they wish.
Change: None.
Section 602.23 Application of Standards
Comments: The Secretary received several suggestions for changes to
this section. For example, one suggestion was to change the wording in
Sec. 602.23(a) from ``[the agency] consistently applies and enforces
written standards that ensure that the quality of education or training
offered is of sufficient quality to achieve * * * the stated objective
for which it is offered'' to ``[the agency] has written standards that
it consistently applies to ensure that the education or training
offered * * *.'' Another was to change the wording in Sec. 602.23(b)(5)
from ``to ensure that its criteria and standards are appropriate and
sufficiently comprehensive to evaluate the quality of the education of
training provided * * * and are relevant to the education or training
needs of affected students'' to ``to ensure that its criteria and
standards are comprehensive and appropriate to the agency's objective
of ensuring the quality of the institutions or programs it accredits.''
The Secretary also received a number of comments directed to the
requirement that agencies must have a systematic program of review to
ensure what in previous regulations was described as the ``validity and
reliability'' of its standards. Some commenters believed the wording in
the NPRM was preferable to the phrase ``validity and reliability''
because of the various technical interpretations often given to those
words. Others, however, found the wording in the NPRM vague and
generally not as strong as the original wording. All commenters,
regardless of their concerns about the specific wording, agreed that
the requirement was exceedingly important in assessing whether the
agency is a reliable authority as to educational quality.
Finally, several commenters requested that the limit on
preaccreditation status be extended from five to six years to
accommodate some agencies' practice of granting preaccreditation for
six years and then reviewing the preaccredited institution or program
every two years during the six-year period.
Discussion: The Secretary believes that the various wording changes
suggested by commenters for Sec. 602.23, of which two are described
above, substantially reduce the effectiveness of the section by
shifting the emphasis away from agencies' overall responsibility to
have effective standards that ensure educational quality. With regard
to the request that the maximum preaccreditation period be lengthened
to six years, the Secretary understands the rationale presented by
those agencies that conduct very thorough, and in some cases on-site,
reviews of preaccredited institutions or programs throughout the
preaccreditation period. However, the Secretary notes that not all
agencies follow this practice of conducting thorough on-site reviews
throughout the preaccreditation period. In these instances, the
Secretary believes that the addition of another year of
preaccreditation is not justified. For this reason, the Secretary does
not accept the suggestion to extend the maximum preaccreditation period
to six years.
With respect to the ``validity and reliability'' issue, the
Secretary has carefully considered all of the comments, especially
those directed to the level of technical and statistical precision that
is often associated with the words. However, in light of the
Secretary's decision to list the twelve required accreditation
standards in Sec. 602.26 as they appear in the law, with no
elaboration, the Secretary believes the strongest possible language is
necessary in this section to make very clear the importance of this
requirement in establishing sound accreditation standards. For the same
reason, the Secretary believes it is necessary to add to this section a
requirement that an agency must demonstrate that each of its standards
provides both a consistent basis for determining the educational
quality of different institutions and programs and a valid measure of
the aspects of educational quality that it is intended to measure.
Changes: The requirement in Sec. 602.23(b)(5) has been revised to
incorporate the ``validity and reliability'' language. A requirement
has been added that an agency must demonstrate that each of its
standards is effective in determining educational quality.
Section 602.24 Accreditation Processes
Comments: The Secretary received numerous comments about the
provision pertaining to unannounced site visits, most of which were
directly related to the definitions of ``prebaccalaureate vocation
education'' and ``vocational education.'' Many commenters preferred
that unannounced visits be restricted to those institutions offering
non-degree vocational education, while others felt that all
institutions offering vocational education, regardless of the
credential awarded, should be subject to the requirement. Many
commenters suggested that the term ``institution that offers vocational
education'' should be restricted to those institutions whose
predominant offerings are vocational. The word ``predominant'' was
defined by these commenters to mean more than 75 percent of an
institution's course offerings.
Several commenters also believed that the purpose of the
unannounced site visit as stated in the NPRM--to determine whether or
not the institution or program continued to be in compliance with the
agency's standards--was inappropriate. One commenter wanted the
regulations to require accrediting agencies to publish clear guidelines
for when and how an agency will conduct an unannounced visit.
Discussion: The Secretary has carefully considered all comments
received on this issue, as well as those on the broader issue of the
burden these regulations would impose on institutions and accrediting
agencies. The Secretary has also reexamined the House-Senate Conference
Report regarding the requirement for unannounced inspections of
institutions that offer vocational education. This report describes the
House language as requiring unannounced inspections of institutions
that are predominately vocational in nature, while the Senate language
speaks more generally of requiring these inspections for all
institutions that offer vocational education. As this report also notes
that the House deferred to the Senate on this issue, the Secretary
believes it is the clear intent of Congress to require accrediting
agencies to conduct unannounced inspections at all institutions that
offer vocational education or training. The Secretary also believes
that Congress' use of the term ``inspection'' rather than ``review'' or
``evaluation'' is evidence that the purpose of the unannounced visit is
not necessarily to conduct a full review of the institution but to
determine whether, at a minimum, the institution actually has the
personnel, facilities, and resources it claimed to have, or appeared to
have, either during its last evaluation by the accrediting agency or in
subsequent reports to the agency. The Secretary wishes to point out
that an accrediting agency has the flexibility to determine how best to
carry out these unannounced inspections in a manner that achieves the
purpose of these inspections but minimizes the cost to institutions and
the burden to accrediting agencies. The agency also has the flexibility
to examine, during the unannounced inspection, other aspects of an
institution, such as whether it maintains adequate records or whether
it actually provides the programs and support services it advertises.
As agencies are responsible for monitoring institutions throughout
their accreditation period, as described in Sec. 602.24(b)(4), the
Secretary wishes to point out that these unannounced inspections can
and should serve a useful purpose in helping agencies meet this
responsibility.
Changes: The term ``unannounced site visit'' has been replaced with
``unannounced inspection,'' and the purpose of the unannounced
inspection has been defined as indicated in the Discussion section.
Section 602.25 Additions to or Substantive Changes in Educational
Programs
Comments: The Secretary received numerous comments regarding this
section. Many commenters felt that there was no substantive change
requirement in the statute so the requirement should be eliminated from
the regulations. Other commenters, however, cited a different reason
why the requirement should be eliminated: most accrediting agencies
already have substantive change policies so there is no need for the
Department to regulate the content of those policies. A host of
commenters observed that, as worded, the requirement placed an undue
reporting requirement on both accrediting agencies and institutions and
an unnecessary burden on agencies by requiring them to grant prior
approval to even the most insignificant of program changes or
additions. Many also noted that the prior approval process would
severely inhibit institutions' ability to respond in a timely manner to
changing needs, as, for example, in health-related fields. Finally,
commenters noted that many programs, such as those in community
colleges, were routinely reviewed and approved by various State review
boards before they could be offered, so requiring additional prior
approval by accrediting agencies would only increase costs without any
added benefit.
Discussion: The Secretary firmly believes that an agency cannot be
a reliable authority as to the quality of education or training offered
by an institution if the agency does not have a substantive change
policy that requires prior approval by the accrediting agency before a
substantive change can be included in the agency's grant of
accreditation to an institution. At the same time, the Secretary
acknowledges the burden the requirement proposed in the NPRM imposed on
institutions and accrediting agencies. While the least burdensome
approach would be to allow agencies simply to use their existing
substantive change policies to meet this requirement, the Secretary
believes this is unworkable and does not adequately protect the public
interest because there is considerable variation among agencies as to
what constitutes substantive change. Furthermore, as the NPRM
documents, there have been several significant abuses in this area
because of an agency's unwillingness to evaluate an institution's
substantive change before including that change in the institution's
grant of accreditation. Consequently, the Secretary believes that the
Federal interest, as well as the interest of the general public, is
best protected if a common core of changes that must be considered
substantive is defined in regulation. To determine what should
constitute this common core, the Secretary examined the topics
institutional accrediting agencies typically include in their list of
substantive changes that require prior approval and has included in
this section only those that reflect the Secretary's principal concerns
regarding institutions that undergo substantive change. The Secretary
believes that the revised substantive change policy, which now applies
only to institutional accrediting agencies, considerably reduces the
burden on both accrediting agencies and institutions at the same time
it provides adequate protection to the public.
The Secretary recognizes that there are many variables that must be
taken into account in determining the type of review that an agency
conducts before granting prior approval to an institution's substantive
change. For this reason, the Secretary has decided to give accrediting
agencies the flexibility to determine the procedures they will use in
granting prior approval to an institution's substantive change. In some
instances, this may involve a full-scale on-site evaluation of the
entire institution. In others, it may involve a focused visit to
examine the particular circumstances surrounding the change. In still
others, it may involve simply a thorough review by agency staff of the
institution's report on its ability to implement the substantive change
without adversely affecting the institution's ability to continue to
meet the agency's standards.
Changes: The substantive change requirement has been modified to
limit the types of changes that must be given prior approval by an
accrediting agency. The requirement now applies to institutional
accrediting agencies only.
Section 602.26 Required Accreditation Standards
Comments: The Secretary received numerous comments about the
required accreditation standards. Most commenters felt that the Federal
government should not mandate how accrediting agencies defined their
standards. They also felt that the proposed regulations intruded on the
autonomy of accrediting agencies, exceeded the statute, and were
contrary to Executive Order 12866. In their opinion, the Secretary
overreached his authority by specifying anything in this section that
went beyond a mere restatement of the law on the required standards.
These same commenters applauded the removal of the language on
curricula, faculty, facilities, equipment and supplies, and student
support services that had appeared in early drafts of the proposed
regulations and urged the Secretary to do the same for the other eight
standards specified in the law.
Several commenters argued that many of the specific
responsibilities assigned to accrediting agencies by the various
standards would force agencies into becoming government regulators.
They also argued that these new requirements would require accrediting
agencies to duplicate the efforts of the Department and the States and
would substantially increase the paperwork burden on institutions and
accrediting agencies. In their opinion, these requirements would be so
burdensome to accrediting agencies in terms of time and personnel that
they would shift the focus of accreditors away from their primary
function--that of reviewing educational quality--to a role in which
they served merely as investigative and enforcement agencies for the
Federal government.
While the opinions expressed above were shared by the majority of
commenters on this issue, they were by no means unanimous. Some
commenters from the proprietary sector, for example, had no serious
objection with the standards, noting that most of what was contained in
the standards was already being examined to the degree of specificity
contained in the proposed regulations by either their accrediting
agencies, the State, or both. Others commenters felt that the
standards, as written, protected students as well as Federal dollars.
One commenter thought the introductory paragraph to the required
standards section should be strengthened by requiring agencies to have
quantitatively validated standards that were based on a rigorous
assessment of the value added by the education or training.
Finally, one commenter expressed concern that the Secretary was
exceeding the statute by requiring institutional accrediting agencies
whose accreditation does not serve Title IV, HEA purposes to meet the
student outcomes requirements of Sec. 602.26(b)(9).
Discussion: The Secretary has given very careful thought to all the
concerns raised with regard to this section. Of particular concern to
the Secretary is how best to achieve an appropriate balance between the
need for agencies to have rigorous standards in order to protect
students' interests and the need for agencies to have flexibility in
addressing these standards in order to reduce cost and burden to both
agencies and institutions. Another important factor, in the Secretary's
opinion, is the need to build a partnership among triad members that is
based on mutual trust and allows each member the flexibility to
determine the appropriate means to carry out its responsibilities under
the HEA.
After considering all of these factors, the Secretary has decided
to eliminate all but the statutory language for each of the 12 required
standards. This approach eliminates many requirements that commenters
found especially burdensome, such as that in Sec. 602.26(b)(4)
concerning annual financial audits. In addition, it allows accrediting
agencies that already have rigorous standards in these areas to
continue operating as they have, thus eliminating the need for
additional cost to agencies and institutions to comply with the
requirements of this section.
While the Secretary believes it is appropriate not to prescribe
specific minimum regulatory standards elaborating on the standards in
the statute, the Secretary also believes that the standards contained
in the NPRM provide a sound framework for a thorough assessment of
these areas. For this reason, the Secretary summarizes below the major
provisions contained in the NPRM concerning the statutory standards.
The Secretary believes these provisions are appropriate for agencies to
address in their own standards for these areas. In addition, the
Secretary believes that, in addressing the development of their own
standards, accrediting agencies should consider any comparable Title
IV, HEA program standards and any relevant and applicable State
standards developed under the State Postsecondary Review Program.
However, the Secretary wishes to make it clear that this does not
prevent an accrediting agency whose standards do not include all of
these provisions from being recognized by the Secretary, provided the
agency can justify the appropriateness of its standards as reasonable
applications of the statutory standards in light of its needs, the
needs and circumstances of the institutions or programs it accredits,
and the students they serve. Finally, the Secretary wishes to emphasize
the importance of accrediting agencies' developing their standards in
such a way that they minimize burden, overlap, and duplication at the
same time they ensure overall educational quality.
The Secretary notes that for most of the standards discussed below
there are comparable, or very similar, standards in section 494 and
some in 498 of the HEA. The Secretary expects to take a leadership role
in working with accrediting agencies and SPREs to ensure that the
standards for all three members of the triad are complementary, rather
than redundant.
Fiscal and administrative capacity as appropriate to the specified
scale of operations. An accrediting agency's standard for assessing
this area should generally address the overall quality of an
institution's or program's fiscal and administrative capacity. The
assessment should examine in particular whether the institution's or
program's finances are sufficiently strong to enable it to meet, and
appear likely to continue to meet for the foreseeable future, all of
the agency's standards for accreditation. The assessment should also
include some provision for the ongoing monitoring of an institution's
or program's finances throughout any period of accreditation or
preaccreditation granted by the agency.
The Secretary notes that section 494(d)(5) of the HEA contains a
comparable SPRE review standard and sections 498 (c) and (d) of the HEA
contain comparable Department standards.
Recruiting and admissions practices, academic calendars, catalogs,
publications, grading, and advertising. An accrediting agency's
standard for assessing these areas should generally address whether
they are reasonable in light of an institution's or program's
educational mission, reflect good practice, and accurately reflect
actual practice.
The Secretary notes that sections 494(d) (1), (2), and (12) of the
HEA contain comparable SPRE review standards.
Program length and tuition and fees in relation to the subject
matters taught and the objectives of the degrees or credentials
offered. An accrediting agency's standard for assessing this area
should generally address the appropriateness of an institution's
program length and tuition and fees, taking into account such factors
as program objectives and content, the types and locations of
instructional delivery, the knowledge and skills necessary for students
to reach competence in the field being taught, and generally accepted
practices in higher education.
The Secretary notes that section 494(d)(7) of the HEA contains a
comparable SPRE review standard.
Measures of program length in clock hours or credit hours. An
accrediting agency's standard for assessing this area should generally
address the appropriateness of an institution's or program's
measurement of program length, taking into account such factors as
program objectives and content, the types and combinations of
instructional methodologies and delivery systems (including outside
preparation as appropriate), the knowledge and skills necessary for
students to reach competence in the field being taught, and generally
accepted practices in higher education.
The Secretary notes that section 494(d)(9) of the HEA contains a
comparable SPRE review standard.
Success with respect to student achievement in relation to mission,
including, as appropriate, consideration of course completion, State
licensing examination, and job placement rates. An accrediting agency's
standard for assessing this area should generally address the success
of an institution or program in meeting its educational objectives, as
measured by the achievement of its students. Typically under this
standard, an agency should require the institution or program to
document and assess the educational achievement of students in
verifiable and consistent ways, such as student grades, grade point
averages, theses or portfolios, the results of admissions tests for
graduate or professional school or other standardized tests, transfer
rates to institutions offering higher level programs, job placement
rates, completion rates, results of licensing examinations, evaluations
by employers, follow-up studies of alumni, and other recognized
measures of educational outcomes. The agency should also typically
require the institution or program to use effectively the information
obtained in this manner to improve student achievement with respect to
the degrees or certificates offered. Finally, the agency should
typically monitor in a systematic way the institution's or program's
performance with respect to student achievement, including, as
appropriate, completion rates, job placement rates, and pass rates on
State licensing examinations, or other appropriate measures of
occupational competency, to determine if performance is consistent with
both the institution's or program's mission and objectives and any
measures the agency may have for institutions' or programs' performance
with respect to student achievement. For programs that provide
vocational education, agencies should establish quantitative standards
for completion rates, job placement rates, and pass rates on State
licensing examinations.
The Secretary notes that section 494(d)(14) of the HEA contains a
comparable SPRE review standard.
Default rates in the student loan programs established under Title
IV of the Act, based on the most recent data provided by the Secretary.
An accrediting agency's standard for assessing this area should
generally address an institution's default rates in relation to the
institution's overall ability to meet the agency's standards.
Typically, an agency might evaluate an institution to determine whether
the institution is out of compliance with its accrediting standards if
the institution's latest cohort default rate under the Federal Stafford
Loan or Federal Supplemental Loans for Students program equals or
exceeds 25 percent or if it has increased significantly in relation to
its rate the previous year. Under this standard, an agency is not
expected to do the work of the Federal government with respect to
institutional default rates. Rather, the agency is expected to review
the default rate information provided by the Secretary, determine if
that information calls into question the institution's compliance with
agency standards, and take follow-up action as appropriate.
Record of student complaints received by, or available to, the
agency. An accrediting agency's standard for assessing this area should
generally address an institution's or program's record of student
complaints received by or made available to the agency. Under this
standard, the agency should typically review student complaints that
relate to the agency's standards and take appropriate follow-up action
with regard to those complaints. If necessary, the agency would refer
complainants to appropriate Federal, State, and other agencies if the
complaints do not relate to the agency's standards. Finally, it would
require institutions or programs to make available to students the
agency's mailing address or telephone number for complaints.
The Secretary notes that section 494(d)(11) of the HEA contains a
comparable SPRE review standard.
Compliance with the institution's program responsibilities under
Title IV of the Act. An accrediting agency's standard for assessing
this area should generally address an institution's compliance with its
Title IV, HEA program responsibilities in relation to the institution's
overall ability to meet the agency's standards. The agency's assessment
under this standard is based on program reviews, financial and
compliance audits, audited financial statements, and any other
information that the Secretary provides. Under this standard, the
agency is not expected to do the work of the Federal government in
reviewing institutions for compliance with their Title IV, HEA program
responsibilities. Rather, the agency is expected to review the
information provided by the Secretary, determine if that information
calls into question the institution's compliance with agency standards,
and take follow-up action as appropriate.
With regard to the concern raised by one commenter about the need
for quantitatively validated standards, the Secretary notes that
Sec. 602.23(b)(5) requires agencies to have in place a program for the
systematic evaluation of the validity and reliability of its standards.
In light of the Secretary's decision to eliminate all but the statutory
language for the required standards, this ``validity and reliability''
provision takes on added importance, as described in the discussion of
the changes to Sec. 602.23.
Finally, with regard to the concern about extending the requirement
to have a standard assessing student achievement to institutions whose
accreditation does not serve Title IV, HEA program purposes, the
Secretary wishes to note that the overriding concern of the statute, as
expressed in section 496(a) of the HEA, is that accrediting agency
standards must contain a measure or measures of student achievement.
Therefore, it is the Secretary's belief that extending the requirement
to all agencies, not just those whose accreditation serves Title IV,
HEA purposes, is warranted.
Changes: Paragraph 602.26(b) contains only the statutory language
for the 12 required standards. Other changes to Sec. 602.26 are
discussed below.
Section 602.26(b)(13) The Institution's Practice of Making Refunds to
Students
Comments: Many commenters objected to the inclusion of this
requirement in the regulations on the grounds that section 496(g) of
the HEA explicitly states that the Secretary may not establish
standards for accrediting agencies that are not required by section
496. This point was argued by non-Federal negotiators during negotiated
rulemaking as well.
Discussion: The Secretary has carefully reviewed the statutory
provision on which this requirement was based and has also reexamined
the requirement in light of refund policies established in the Student
Assistance General Provisions, 34 CFR part 668. It is the Secretary's
belief that the regulatory language contained in 34 CFR part 668 is
sufficient by itself to ensure that an institution's refund policy
meets the requirements of the statute. Thus, there is no need for a
requirement that accrediting agencies must have a standard that
assesses institutions' refund policies.
Changes: The section has been deleted.
Section 602.26(c) Time Limit on Correcting Deficiencies
Comments: Many commenters expressed concern about the proposed 18-
month time limit for institutions to come into compliance with an
accrediting agency's standards. Some argued that in many instances,
such as when an institution's financial situation is cause for concern,
it takes considerably longer for an institution to come into
compliance. Others argued that, for some programs, 18 months was too
long.
Many commenters expressed concern about the requirement under
consideration that accrediting agencies would have to take adverse
action if they determined that an institution was unlikely to continue
to be able to meet agency standards for the foreseeable future. This
requirement, they argued, was totally unrealistic because agencies
would have no objective basis on which to make such a determination.
According to these commenters, the requirement would result in a
determination that was pure conjecture on the part of accrediting
agencies and would leave agencies vulnerable to lawsuits. Several
commenters expressed an opposing view about this requirement, however,
stating it was necessary to protect students who attended institutions
whose ability to continue to provide a quality education was clearly
questionable.
Discussion: The Secretary believes that some definitive time frame
is necessary to ensure that institutions and programs make serious
efforts to improve the quality of their offerings and to ensure that
accrediting agencies take adverse actions when institutions fail to
make those efforts. However, the Secretary also recognizes that,
because of differing lengths of programs, the 18-month time frame is
unrealistic for all types of institutions.
With regard to the provision that agencies should be required to
take action if it appears that an institution or program will be
unlikely to continue to meet an agency standard, the Secretary
understands the concerns of commenters who opposed the requirement.
However, because there is potential for serious harm to students
enrolled in an institution or program the quality of whose education or
training appears to be declining, the Secretary remains concerned about
a marginal institution or program that might be accredited by an agency
despite the agency's very serious concerns about its enrollment or
financial trends. While the Secretary has not added to these
regulations the specific requirement under consideration in the NPRM,
the Secretary wishes to impress upon agencies the importance of the
requirement, contained in Sec. 602.24(b)(4) of these regulations, that
they monitor institutions and programs throughout any accreditation or
preaccreditation period to ensure that they give prompt and serious
attention to any degradation in an institution's or program's ability
to provide a quality education.
Changes: Different time frames for corrective action have been
incorporated for different lengths of programs.
Section 602.27 Required Operating Procedures
Comments: The Secretary received many comments about the special
actions accrediting agencies are required to take whenever institutions
establish new branch campuses. Of particular concern to most commenters
was the apparent inconsistency between the definition of ``branch
campus'' in Sec. 602.2 and the use of that term in this section. Also
of concern to many commenters was the added requirement that
accrediting agencies must visit ``additional locations,'' which many
felt went beyond the statute. One commenter felt that the required
submission of a business plan for a new branch campus was unwarranted,
burdensome and costly and had no intrinsic value.
The Secretary also received a number of comments about the
requirement that accrediting agencies provide an opportunity for public
comment about an institution's or program's qualifications for
accreditation. Many felt this would subvert the accreditation process
by evoking unjustified complaints. Others felt it required the agency
to hold a public hearing every time an institution or program was
evaluated for accreditation or reaccreditation. One commenter held an
opposing view, however, preferring that agencies be required to hold
public hearings for all accrediting decisions.
Finally, the Secretary received a number of suggestions for
strengthening the various public disclosure requirements contained in
this section, although a few commenters questioned the statutory
authority for these requirements.
Discussion: The branch campus-additional location issue has already
been discussed under the definition of ``branch campus.''
The Secretary notes that the additional information collection
requirement related to the establishment of branch campuses--the
submission of a business plan--is a statutory requirement and cannot be
eliminated.
With regard to the issue of public comment when an institution or
program is being considered for accreditation, the Secretary believes
there should be opportunity for such comment but that there need not be
a public hearing to obtain it. The Secretary believes further that an
agency should be free to determine both the manner in which it
publicizes that an institution is scheduled for review and the method
it uses to obtain public comment.
With regard to the other public disclosure issues in this section,
the Secretary believes that the more open an accrediting agency is with
regard to its policies and practices, as well as the individuals
involved in its accrediting activities, the better it is for the
consumer. However, the Secretary believes it is best left up to the
agency to determine its actual practice in this regard.
Changes: The term ``branch campus'' has been redefined, and the
phrase ``additional location'' has been deleted from this section. The
public disclosure requirements have been modified to clarify that a
public hearing is not required to obtain public comment on an
institution's or program's application for accreditation.
Section 602.28 Due Process for Institutions and Programs
Comments: One commenter expressed concern that the proposed
regulations allowed an accrediting agency to deny an institution or
program the right to appeal in person any adverse accrediting action.
Another commenter noted that the regulations did not address the
provision in section 496(e) of the HEA that prohibits the Secretary
from recognizing the accreditation of an institution unless the
institution agrees to submit any dispute involving the final denial,
withdrawal, or termination of the institution's accreditation to
initial arbitration prior to any other legal action. This same
commenter felt that accrediting agencies should be required to adopt an
initial arbitration procedure for handling disputes involving the loss
of accreditation.
Discussion: With regard to the commenter's concern that
institutions have the right to appeal an adverse action in person, the
Secretary believes it is best to give agencies the flexibility to
determine the appropriate procedures for appealing adverse actions. As
the cost to an agency when an institution or program appeals an adverse
action is generally substantial, the Secretary believes this approach
minimizes the cost without causing undue harm to institutions that are
subject to an adverse action.
With respect to the issue of arbitration, the Secretary recognizes
that the statute does not specifically require an accrediting agency to
agree to binding arbitration. However, the Secretary anticipates that
many accrediting agencies will agree to arbitration since it
significantly limits the cost and length of appeals of their final
decisions. Moreover, if an accrediting agency does not agree to binding
arbitration, an institution will be free to appeal a final adverse
decision by the agency in the federal courts.
Change: None.
Section 602.29 Notification of Accrediting Decisions
Comments: The Secretary received several comments endorsing the
addition of a requirement that an accrediting agency must notify the
Secretary and the appropriate State postsecondary review entity of any
final adverse accrediting action at the same time the agency notifies
the institution or program. On another issue, most commenters believed
it was inappropriate to require an accrediting agency to notify the
Secretary and others prior to making a final decision that involved the
denial or termination of accreditation, although some supported this
provision. Some commenters believed that the time frame for requiring
accrediting agencies to make available to the public the comments of an
institution that loses its accreditation was unrealistic. Finally, one
commenter requested clarification as to which agencies should be
included in the phrase ``the appropriate accrediting agencies'' that an
agency must notify of its decisions.
Discussion: As mentioned in the NPRM, the Secretary believes that
accrediting agencies should be required to notify the Secretary and
others at the same time they notify an institution or program of a
final adverse action in order to prevent excessive draw-down of Federal
funds by the institution or program. The Secretary appreciates the
comments received in support of this position. With regard to the issue
of notification before an adverse action is final, the Secretary shares
the concerns of those who support the inclusion of a requirement to
this effect but agrees with those commenters who expressed the concern
that notification prior to final action could cause serious harm to
institutions that subsequently had the adverse action reversed.
With regard to the 60-day time frame for obtaining the comments of
an institution or program that is subject to a final adverse action,
the Secretary believes it is in the best interest of the public to
publish as soon as possible the reasons why the agency has denied,
withdrawn, suspended, or terminated the accreditation of the
institution or program. If the institution or program chooses not to
make its comments about that action available to the accrediting agency
within 60 days, then the accrediting agency is free to publish its
statement of reasons without the accompanying statement of the
institution or program.
With regard to ``appropriate accrediting agencies,'' the Secretary
believes that accrediting agencies should be free to determine which
agencies should be notified but that, at a minimum, an agency should
notify all recognized agencies that accredit an institution, or a
program offered by the institution, if the agency takes an adverse
action against the institution or one of its programs.
Changes: A requirement has been added that accrediting agencies
must notify the Secretary and others at the same time they notify the
institution or program of a final adverse accrediting action.
Section 602.30 Regard for Decisions of States and Other Accrediting
Agencies
Comments: The Secretary received many comments opposing the
requirement that institutional accrediting agencies must review their
accreditation or preaccreditation of an institution if a programmatic
accrediting agency takes adverse action against a program offered by
the institution. Some commenters also expressed opposition to the
requirement that programmatic accrediting agencies had to review an
accredited program at an institution if the institutional accrediting
agency took adverse action against the institution. Many commenters
objected to the phrase ``or should have known'' in Sec. 602.30(b).
Discussion: The Secretary believes that all agencies, including
those that accredit only programs, should be required to take into
account the decisions of States and other accrediting agencies when
making any accreditation or preaccreditation decision involving an
institution or program. The Secretary also believes that there may be
occasions when a programmatic agency is the first agency to discover a
serious problem that threatens the overall ability of the institution
to provide a quality education. For this reason, the Secretary believes
it is important for an institutional accreditor to review an
institution for compliance with its accreditation standards if a
programmatic agency takes adverse action against a program offered by
the institution. The Secretary allows the institutional accrediting
agency the flexibility to determine what an appropriate ``review'' is,
however. It does not have to be a full on-site review of the
institution.
With regard to agencies being accountable for actions about which
they ``should have known,'' the Secretary understands the concerns of
commenters that agencies could be held accountable for knowing about
the actions of another agency that failed to inform other agencies of
its adverse actions. However, there are instances where information
about an agency's adverse action against an institution or program
becomes a matter of public record, and the Secretary believes that in
these instances accrediting agencies should not be absolved from their
responsibility to review the institution simply because another entity
failed to notify them.
Changes: None.
[FR Doc. 94-10147 Filed 4-28-94; 8:45 am]
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