What NCAN Members Should Know About ED’s Latest 'Neg Reg' Process

April 19, 2019

By Jack Porter, Advocacy Associate

Earlier this month, a negotiated rulemaking committee assembled by the U.S. Department of Education (ED) reached consensus on a draft of regulatory language for a fairly wide range of higher education issues. This process, known as “neg reg,” is binding for the department.

Had the committee not reached consensus, ED would have virtually had free rein in writing new rules for the three areas that were up for debate:

  • Accreditation, the credit hour, and the Robert C. Byrd Scholarship.
  • The Teacher Education Assistance for College and Higher Education Grant (TEACH Grant) program and religious freedom.
  • Distance education, state authorization for distance education, and competency-based education. 

ED is required by law to gather input from stakeholders in its pursuit of changes to the regulatory code. If those stakeholders unanimously agree to new language, the department must propose the agreed-upon regulatory language in the subsequent Notice of Proposed Rulemaking. If they do not reach consensus, then the department can write the regulations as it sees fit, similar to most other federal agencies, which are allowed to independently overhaul regulatory code.

This time around, ED appointed more than 60 negotiators, some of whom served on subcommittees that provided recommendations to the full committee, which made the official vote. The three subcommittees focused on 1) faith-based entities, 2) distance learning and educational innovation and 3) the TEACH Grant.

Among the team of negotiators on the Faith-Based Entities Subcommittee was Andrew Bramson, president and CEO of The College Crusade of Rhode Island, an NCAN member and advocacy grantee.

“Participating in this process was a great learning experience, and I am thrilled that the Crusade was represented in the negotiations over the last few months,” said Bramson (pictured right). “And in speaking for GEAR UP programs like the Crusade, I did my best to bring the voice of students served by these programs to the dialogue.”

He added: “Given the wide array of topics that were on the table, I have to say I was a bit skeptical that unanimity would be reached. But it’s great to know that the new regulatory code will be a result largely of stakeholder input.”

In July when the department published its intent to establish the committees and the topics it would consider, NCAN submitted written comments on five topic areas particularly pertinent to students served by members. Moreover, NCAN requested that FAFSA verification be included in the round of negotiations given ED’s mission to focus on “barriers to completion.” Unfortunately, the department did not add verification to the list of issues to be discussed.

  1. Accreditation

    From NCAN’s Comments: The Department’s proposal to weaken standards for accreditors in the name of reducing burden will only open the door for more bad actors to receive precious federal financial aid dollars, even when they consistently serve students poorly. College accreditors are supposed to ensure a basic level of educational quality for their students. Students are supposed to view accreditation as a stamp of approval for the quality of an institution of higher education.

    The agreed-upon language calls for accreditation standards that “set forth clear expectations for institutions or program it accredits” rather than “effectively address the quality of the institution or program.”

  2. State Authorization

    From NCAN’s Comments: Today’s state authorization rules provide an assurance to online students that completion of their chosen postsecondary program will provide them the necessary credentials to sit for licensure exams in a state outside of where the institution is physically located. Rolling back this protection diminishes states’ rights to protect their own residents, and could exacerbate workforce gaps in critical fields by graduating students unable to get the credentials they need to enter the labor market where they live.

    The agreed-upon language calls for an update to state reciprocity agreements outside of these negotiations and through the National Council for State Authorization Reciprocity Agreements.

  3. Regular and Substantive Interaction

    From NCAN’s Comments: The “regular and substantive interaction” rule was established to require students have contact with a live subject-matter expert. The Department’s proposal to loosen requirements even further for institutions offering online education is a step in the wrong direction. Being taught by qualified experts is a critical component to student success in postsecondary education.

    The agreed-upon language calls for a definition of “substantive” to be “engaging students in teaching, learning, and assessment” and to include at least two of the following four activities: direct instruction; assessing or providing feedback on a student’s coursework; providing information or responding to questions about the content of a course or competency; or facilitating a group discussion regarding the content of a course or competency. Additional activities may be approved by the institution’s accreditor. The consensus also defines “regular” as a “predictable and regular basis commensurate with the length of time and the amount of content in the course or competency.” The language would also require instructors to be responsible for “promptly and proactively engaging in substantive interaction with the student when needed, on the basis of such monitoring, or upon request by the student.” 

  4. Credit Hour

    From NCAN’s Comments: The Department’s current proposal to weaken the credit hour will allow institutions to receive more federal money for less time spent on education, ultimately leaving students and taxpayers with no guarantee that they are getting the postsecondary education for which they are paying. The definition of the credit hour was designed to ensure that students’ federal aid and tuition dollars help them earn a quality award or degree no matter what college they attend.

    The agreed-upon language calls for maintaining the current definition of the credit hour.

  5. Outsourcing

    From NCAN’s Comments: Students should know when an institution outsources their educational programs to unproven entities. Today, students – and the taxpayers who help finance their education – have basic assurances that the institutions and programs they are attending have been approved by the state, accredited by a recognized accreditor, and are subject to a battery of requirements, like passing a financial viability test from the Department of Education.

    The agreed-upon language calls for sustaining the amount of a program an institution can outsource to 50%, but makes adjustments to the process by which written agreements are reached in this regard.
In all, ED will be rolling out hundreds of pages of new regulatory language over the coming weeks in Notices of Proposed Rulemaking, all of which will be subject to public comment. In order for the new rules to take effect on July 1, 2020, the final language must be published by ED no later than Nov. 1, 2019.

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