MSCHE’s Dr. Sibolski Recounts U.S. Department of Education Rule Proposal Experience

Middle States Commission on Higher Education (MSCHE) President Dr. Elizabeth H. Sibolski had a front row seat for the negotiated rule making process that has concluded with the U.S. Department of Education (USDE) releasing the proposed regulations on June 12, 2019.

Serving as an alternate on the committee, Dr. Sibolski noted the historic nature of the consensus reached by the committee, which met numerous times between January and April 2019.

The USDE accepted public comment through July 12, 2019. As noted by the USDE notice in the Federal Register, the proposed regulations would—

• Revise the requirements for accrediting agencies in their oversight of member institutions and programs to be less prescriptive and provide greater autonomy and flexibility in order to facilitate agility and responsiveness and promote innovation;
• Revise the criteria used by the Secretary to recognize accrediting agencies to focus on education quality and allow competition;
• Revise the Department’s process for recognition and review of accrediting agencies;
• Clarify the core oversight responsibilities among each entity in the regulatory triad—accrediting agencies, States, and the Department—to hold institutions accountable;
• Establish the roles and responsibilities of institutions and accrediting agencies in the teach-out process;
• Establish that the Department recognizes an institution’s legal authorization to operate postsecondary educational programs when it is exempt from State authorization under the State constitution or by State law as a religious institution with a religious mission;
• Revise the State authorization requirements for institutions offering distance education or correspondence courses; and
• Remove the regulations related to the Robert C. Byrd Honors Scholarship Program, which has not been funded in many years.
• Dr. Sibolski provided some observations and context of her negotiated rule making experience.

How did you come to serve on the committee?

The Department of Education solicited nominations for the negotiated rule making committee and made the selections following a vetting process. It makes sense that Dr. Barbara Gellman-Danley, president of the Higher Learning Commission (HLC), and I were chosen given our roles as chair and vice chair, respectively, of the Council of Regional Accrediting Commissions (C-RAC). Dr. Gellman-Danley was chosen as the chief negotiator with my being an alternate.

When you think about it collectively, the seven regions in the country that comprise the regional accreditation structure account for something on the order of 3,000 intuitions.

What do you feel was accomplished during the negotiated rule making?

The negotiated rule making focused on accreditation and innovation in higher education. It included a pretty sweeping set of potential changes to accreditation that were introduced by the Department of Education.

For the first time in more than a decade, in all of the negotiated rule making that has taken place during that time frame, there actually was consensus that was reached between the negotiators on the language for new rules. Because there was a consensus, the USDE is obligated to accept results from the negotiations.

What happens next?

The USDE is asking for public comment on the proposed regulations. They may use public comments to clarify where they believe it would help with the language. But they cannot change the nature of what’s going into those rules.

I would urge everyone in our membership to take a look at the rules to see whether there are appropriate comments to improve the language.

I expect that the Department will be able to take those comments and produce a final set of rules that is supposed to be out around the first of November in order for them to take effect on July 1, 2020.

Are there any of the regulations that you would highlight that might impact MSCHE?

The changes that have been proposed are quite sweeping. For example, there would be no use of the term regional for the type of accreditation that we do. Rather, reference to MSCHE accreditation would be as an institutional accreditor.

Further, what the USDE wants to acknowledge is that because we, as accreditors, deal with areas that are outside our traditional region, it makes us have a national footprint. Why is that? Because many of our institutions are doing business all over the country through additional locations and branch campuses. The new regulations would allow us (though we would not be required) to consider additional institutional members from those outside region areas.

We are, and have always been, an institutional accreditor because we accredit full institutions and not programs or specialty areas. Since we provide institutional accreditation, that term would continue. The proposed change would flatten the way that the world looks at both regional accreditation and the national accreditors who tend to be more about vocationally-oriented institutions.

That sounds like a big change. What would it mean?

I’m not sure anything will happen with growth outside our established regions. There’s a cost involved in conducting the kind of business that we do on a regular basis within our region and extending service across the country would increase those costs.

Also, I think that there is a point to regionalism. Smaller communities of institutions make it possible to really get to know the institutions that we are working with and to understand those institutions that may require more attention. We also get to know the people of the institutions much better than would be possible if we were dealing with a national framework.

What are some of the other big changes?

There is a recognition that the current federal two-year limit for an institution to be out of compliance with one or more standards is not enough time. There are some provisions in the new rules that would allow for a longer period of time. That seems perfectly reasonable.