Negotiated Rulemaking for Higher Education: Conversation-Starters for the Proposed Changes

The Department of Education is in the final stages of the negotiated rulemaking process for revisions to the regulations that support the Higher Education Act. The process started just over a year ago and in June, the Department of Education posted its current draft of the policy in the Federal Register for open comments. Commenting closed on July 12, so the next steps will be for the Department to review those comments, make any changes it feels the comments warrant, and then post its final regulations.

It’s unclear what, if any, changes the Department might make but there’s no question some change is coming. If you’re a leader working in higher education, especially online and distance learning, it’s worth taking the time to familiarize yourself with the changes and get a conversation going at your institution on how the changes might have an affect.

Over the next few days, I’ll be posting some conversation starters about the proposed changes, gleaned from the statements different entities made during the most recent commenting period. In full disclosure, I’ll be focusing primarily on feedback that expresses concern about the changes. It’s my belief that sharing these concerns will be more helpful for identifying challenges and highlighting changes that it might be wise to start developing plans to address at your institution.

The new regulations will have significant changes for how accreditors operate and their relationship with institutions. They also affect state authorization, necessary disclosures to students, and the administration of the Title IV funding (the source of federal financial aid). You can find the revisions summarized for the Federal Register (along with all comments made) here. You can also learn more about the changes made and get an understanding of the negotiated rulemaking process here.

For the first post in this series, I’m focusing on a change that may require a significant administrative undertaking for your institution. Under these regulations, institutions with academic programs that are advertised as fulfilling requirements for a specific licensure or certification to disclose whether that is true for all 50 states and, if not, a state-by-state rundown of where the program satisfies requirements and where it does not. Here’s the text:

Proposed Regulations: The Department proposes to add a new subparagraph (v) to the requirements under § 668.43(a)(5) relating to academic programs. The proposed regulations would require an institution to disclose whether the program would fulfill educational requirements for licensure or certification if the program is designed to or advertised as meeting such requirements. Institutions would be required to disclose, for each State, whether the program did or did not meet such requirements, or whether the institution had not made such a determination.

It’s important to note that this is not specific to online or distance programs, it covers all programs regardless of modality. Examples of programs with state-specific licensing include things like teaching, medical professions, social work, engineering, and many trades, like plumbing and cosmetology. The primary goal of this change is to increase transparency, a goal with which most commenters agree. The challenges and concerns mostly focus on feasibility, time to implementation, and whether other organizations are better suited to communicate this information.

As food for thought, here’s three comments the Department of Education received. Feel free to get the conversation started here with CORAL! Do you have any comments, concerns, or differing understanding of the proposed changes? We'd love to hear from you in the comments.

Excerpt from the University of Louisville's Comment The University agrees with the goal of assuring that institutions are more proactive in providing important information to students before enrolling them. As outlined below, we do not object to the requirement in the section regarding professional licensure disclosures but ask the Department for adequate time for compliance. For the professional licensure requirements, the Department’s estimate of burden underestimates the amount of time institutions will spend in fulfilling this requirement. On page 292 of the NPRM, the Department states “We further estimate that it would take an institution an estimated 50 hours per program to research individual State requirements, determine program compatibility and provide a listing of the States where the program curriculum meets the State requirements, where it does not meet the State requirements, or list the States where no such determination has been made.”

Under this estimate, 50 hours means one hour per state. If an institution researches more jurisdictions, it would be even less time per state/jurisdiction. Given the information is not always widely available, and the fact that time is needed to confirm the requirements with the program, draft language and have it approved, and get the language organized on the website, that estimate is highly unrealistic. That also assumes that there are no other steps in the process, such as obtaining specific program approval from a licensing board, or reporting any clinical placement details that may be required. Additionally, professional boards in the states will be overwhelmed with requests. The boards will not be staffed to handle the volume of inquiries and turn-around will become slower. The University of Louisville estimates that it may take more than 400 hours per program for an institution to fully come into compliance. Therefore, we suggest the Department not enforce this provision for at least three years after enacting the regulation. (Link to Full Letter from the University of Louisville)

Excerpt from the Wisconsin Technical College System's Comment In 2017-18, just 0.9 percent of students enrolled in the 16 colleges of WTCS were out-of-state students. Many individual WTCS colleges enroll even less: one college enrolled just 5 out-of-state students — the equivalent of 0.02 percent — from of a total enrollment of almost 17,000. Although the number is not readily available, it stands to reason that the number of out-of-state students enrolled in professional programs is even less. WTCS colleges would simply be collecting professional licensure information for the sake of collecting it. We ask that the Department consider a de minimis standard for this provision whereby institutions with campuses within a single state that enroll a small percentage of students from out-of-state (e.g., less than five percent) would not be required to provide this information for states other than their own state. (Link to Full Letter from the Wisconsin Technical College System)

Excerpt from the Software and Information Industry Association's Comment The draft regulation requires institutions to disclose whether its licensure programs meet or do not meet the requirements of each state or, if the institution doesn't know, those states for which the institution hasn't made such a determination. If the institution has made the determination that its licensure program hasn't met a particular state's requirements, it must also provide written notice of this fact directly to residents of such state. This construct has several effects: -The burden of making the determination of the program's suitability for the student's occupational goals is now shifted to the institution. -Institutions often do not have a clear line of sight into whether their program meets the licensure requirements of a particular state. Licensing boards don't always answer institutional queries with specific responses that the institution can reasonably rely on. -It presumes that all students wish to obtain licensure in their current state of residence. Such is not always the case. -Under the misrepresentation regulation, an institution can be held liable for making an erroneous determination that its program meets a particular state's licensure requirements. Institutions may choose to make no determination to protect themselves, thereby avoiding the written notice requirement. -It will discourage institutions from offering its licensure programs in states in which the institution is unclear about meeting requirements, thereby decreasing access to educational programs. While the general goal of providing students with more information is laudable, the draft regulation goes too far by making the institution the primary clearinghouse of licensure information from the student perspective. This disclosure requirement is best directed to the only bodies that can accurately make these determinations – state licensing boards. To empower students to garner the information necessary for their unique occupational plan, institutions should instead be required to disclosure state licensing board contact information for all states and US territories. This will encourage and incentivize state boards to compile accurate listings of which institutions meet state educational requirements for licensure. (Link to full letter from the Software and Information Industry Association)

Our next post in this series will cover some of the changes the rules will make to how it classifies and approves accrediting agencies!