AACRAO President Tina Falkner reports from round two of Negotiated Rulemaking

March 5, 2019
  • Negotiated Rulemaking
headshot of Tina Falkner

As I was picked up by a friend at Reagan National Airport the Monday before the second round of Negotiated Rulemaking (Neg Reg), I was greeted with the announcement that the DC area was again expecting a snow event during Neg Reg. As a result, the second day of negotiations were canceled due to snow (which wasn’t very much by my Midwest snow standards) and I again sat in my hotel room and did other work. (Read Falkner's reflections from round 1 of Neg Reg here.)

If any of you attended summer camp you may have sung the song that goes like this: “second verse, same as the first, a little bit louder and a little bit worse.” I don’t even remember what song it went with but that phrase kept surfacing throughout the week of negotiations. The week was very similar to the first round, snow and all, as we made little progress on redrafting the redlines.

Data not included

At least half of the negotiating time was spent hearing reports and recommendations from the three subcommittees: TEACH Grant; Faith Based Entities; and Distance Learning and Innovation.

As with the first negotiating session, many of the non-Federal negotiators repeatedly asked the Department of Education (ED) negotiators for data behind the proposed regulatory changes and were not provided with it. Also, they continued to ask “What are you trying to fix with these proposals?” ED repeated the answer they had provided earlier stating that they believe these changes will allow for innovation, but weren’t able to cite specific instances where a current accreditation regulation significantly impacted a school’s ability to be innovative.

Vocal opposition to accreditation changes
In another apparent departure from past Neg Reg procedures ED posed several direct questions for the non-Federal Negotiators. I’m paraphrasing, but these questions included:
- When and how should accrediting agencies be allowed to have alternative standards for schools to meet the accreditation requirements?
- How can they ensure the transfer of credits and disallow institutions from categorically denying credits from schools with national accreditors?
- How to avoid accreditors from imposing one-size-fits-all measures of student achievement?

Answers to these questions, especially the ones about waiving accreditation requirements or establishing alternate standards for certain schools to attain accreditation are fraught with concerns and potentially eroding student protections that accreditation often provides.

The negotiators representing regional, national and programmatic accreditation vocally opposed the proposed language and shared that they currently have an appropriate level of flexibility. The national and regional accreditation representatives also noted that they were embarking on a conversation with their collective membership about how to create greater parity in transfer, but that it shouldn’t be accomplished via regulatory reform. From my experience on campus, our faculty are the most adamant about not accepting courses taught at other places and ultimately the decision is theirs - it has nothing to do with what our accrediting agency says we should or shouldn’t do.

Faith-based entities

I must admit that some of the nuances about the faith-based entities discussion were confusing to me. ED shared at the beginning of negotiations that the regulatory changes being proposed are based on a single Supreme Court decision, Trinity Lutheran Church of Columbia, Inc. v. Comer. The crux of the case is that the government cannot force faith-based entities to choose their faith over a government benefit. There was lots of disagreement in the room about if applying this case would create a different standard for participating in Title IV programs for faith-based entities versus secular entities.

Positive steps

On a positive note, there was general agreement in the room that the proposed changes to the TEACH Grant program were positive and very solid steps in the right direction. All in the room supported changing the process for when a TEACH grant converts to a loan, that there needs to be ongoing communication from ED to students as they are reaching the time when their TEACH grant would convert to a loan, students should have the ability to, within reason, suspend the time clock for conversion of the grant to a loan, and several other proposed changes. However, there was disagreement about whether the changes went far enough to protect students and ‘make whole’ those students whose grants had been converted to loans.

Distance learning

Although the Distance Learning and Innovation subcommittee was tasked with working through the most and the most disparate issues, the neg reg committee was only allotted about an hour to discuss and comment on their recommendations. The majority of the time was spent on attempting to define ‘regular and substantive interaction’ in distance education courses, and were we proposing different regulations for face-to-face course delivery versus distance delivery.

This topic will be picked up again when the committee reconvenes the end of March. The most disturbing proposal that ED included with this subcommittee was the proposal allow programs to outsource more than the currently allowable 49% of a degree program to a non-Title IV eligible entity. Their proposal was so bold as to allow 100% of a program to be outsourced. There was visible discomfort with this proposal, along with many non-federal negotiators noting that this could lead to a school setting up a relationship with a shell corporation to deliver an entire degree.

Making more time

Continuing on the unprecedented actions in Neg Reg, after many complaints from the non-Federal negotiators about the lack of time and the sheer volume of topics ED agreed to a fourth round for negotiating. Unfortunately for me that happens to be during our upcoming Annual Meeting in Los Angeles so I won’t be able to be in the room when the final consensus checks are taken. I am very disappointed about this but do trust my fellow four-year public negotiator and it appears nearly all others in the room have a similar position about protecting students and taxpayers.


Look for another report after the next round and, as always, please feel free to email me if you have any questions or comments.