EDU-07-13-00011-P Institutional Accreditation for Title IV Purposes

2/13/13 N.Y. St. Reg. EDU-07-13-00011-P

NEW YORK STATE REGISTER

VOLUME XXXV, ISSUE 07

February 13, 2013

RULE MAKING ACTIVITIES

EDUCATION DEPARTMENT

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. EDU-07-13-00011-P

Institutional Accreditation for Title IV Purposes

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Amendment of section 3.12 and Subpart 4-1 of Title 8 NYCRR.

Statutory authority:

Education Law, sections 207(not subdivided), 210(not subdivided), 214(not subdivided), 215(not subdivided) and 305(1) and (2)

Subject:

Institutional accreditation for Title IV purposes.

Purpose:

To conform Regents Rules to federal regulations relating to voluntary institutional accreditation for Title IV purposes.

Substance of proposed rule (Full text is posted at the following State website:http://www.regents.nysed.gov/meeting):

Paragraph (2) of subdivision (d) of section 3.12 of the Rules of the Board of Regents is amended to require that the Regents Advisory Council be comprised of at least 9 members, at least 2 of which shall be senior administrators; at least two 2 shall have experience as full-time faculty members in degree-granting institutions and at least one shall be a full-time faculty member at the time of appointment. At least two other voting members or one-seventh of the total voting members of the council, whichever is greater, shall be representatives of the public as defined in the proposed amendment.

Subdivision (e) shall be added to section 3.12 to create an institutional accreditation appeals board to review and decide appeals from an institution(s) of an adverse accreditation action(s) or probationary accreditation decision(s) of the Board of Regents pursuant the procedures outlined in section 4-1.5 of this Title. The proposed amendment defines the composition of the board.

Subdivision (d) of section 4-1.3 of the Rules of the Board of Regents is amended to clarify that the corrective action period may be extended for a maximum period of 12 months.

Subdivision (f) of section 4-1.3 of the Rules of the Board of Regents is amended to require an institution to obtain approval from the Commissioner and the Board of Regents before the department will include the substantive change in the scope of accreditation it previously granted to the institution.

Paragraph (3) of subdivision (f) of section 4-1.3 of the Rules of the Board of Regents is repealed.

Subdivision (g) of section 4-1.3 of the Rules of the Board of Regents is repealed and a new subdivision (g) is added to prohibit the Commissioner and the Board of Regents from granting initial or a renewal of accreditation to an institution, or a program offered by an institution, if the Commissioner and the Board of Regents knows, or has reasonable cause to know, that the institution is the subject of:

(1) a pending or final action against the institution or a program at such institution by a State agency to suspend, revoke, withdraw, or terminate the institution’s legal authority to provide postsecondary education in the State;

(2) a decision by a nationally recognized accrediting agency to deny accreditation or preaccreditation;

(3) a pending or final action brought by a nationally recognized accrediting agency to suspend, revoke, withdraw, or terminate the institution’s accreditation or preaccreditation; or

(4) probation or an equivalent status imposed by a recognized agency.

A new subdivision (h) shall be added to section 4-1.3 of the Rules of the Board of Regents to provide that if the Commissioner and the Board of Regents learn that an accredited institution, or an institution that offers a program it accredits, is the subject of an adverse action by another recognized accrediting agency or has been placed on probation or an equivalent status by another recognized agency, the Commissioner and the Board of Regents shall promptly review its accreditation through the compliance review procedure in section 4-1.5 of this Subpart to determine if it should also take adverse action or place the institution on probation. The Commissioner and the Board of Regents shall only grant accreditation or a renewal of accreditation to an institution described in subdivision (g) of this section if the institution satisfactorily meets the standards of the compliance review procedure described in section 4-1.5 of this Subpart. If the Commissioner and the Board of Regents grant accreditation or a renewal of accreditation after a compliance review, the Commissioner and the Board of Regents shall provide to the U.S. Secretary of Education, within 30 days of its action, a thorough and reasonable explanation, consistent with its standards, why the action of the other body does not preclude the grant of accreditation or renewal of accreditation.

Subdivision (g) of section 4-1.4 of the Rules of the Board of Regents is amended to require that the process and criteria for accepting transfer of credit be publicly disclosed and include a statement of the criteria established by the institution regarding the transfer of credit earned at another institution of higher education and a list of the institutions with which the institution has established articulation agreements.

Paragraph (2) of subdivision (l) of section 4-1.4 of the Rules of the Board of Regents shall be renumbered to paragraph (3) of subdivision (l) of section 4-1.4 of the Rules of the Board of Regents and a new paragraph (2) shall be added to subdivision (l) of section 4-1.4 to require an institution’s teach-out plan to ensure that it provides for the equitable treatment of students pursuant to criteria established by the Commissioner and the Board of Regents and that the plan specifies additional charges, if any, and provides for notification to the students of any additional charges.

Subdivision (a) of section 4-1.5 of the Rules of the Board of Regents is amended to allow an institution to seek the review of new financial information only once and to clarify that any determination on the new financial information does not provide a basis for appeal.

Subdivision (a) of section 4-1.5 of the Rules of the Board of Regents is amended to specifically provide that the Regents shall review any papers, written responses filed, the record before the advisory council, the record of its deliberations, and its findings and recommendations and any other information considered by the commissioner. In addition, if the Board of Regents decision includes an adverse accreditation action or probationary accreditation, the Board of Regents shall notify the institution of its right to a hearing before the institutional accreditation appeals board.

This subdivision is also amended to set forth the process for an appeal and/or a hearing of a determination of adverse accreditation action or probationary accreditation before the institutional accreditation appeals board.

Section 4-1.5 of the Rules of the Board of Regents shall be amended to require the Board of Regents to review any papers, written responses filed, the record before the advisory council, the record of its deliberations, and its findings and recommendations and any other information considered by the commissioner.

Paragraphs (9) and (10) of subdivision (c) of section 4-1.5 to require the Board of Regents to review any papers, written responses filed, the record before the advisory council, the record of its deliberations, and its findings and recommendations and any other information considered by the commissioner before issuing its decision.

It also describes the process for an institution to appeal a Regents determination of adverse accreditation action or granting probationary accreditation to the institutional accreditation appeals board.

Subdivision (d) of section 4-1.5 of the Rules of the Board of Regents shall be amended to changes the procedures for a change in scope of accreditation when there is a substantive change to conform with the federal requirements.

Text of proposed rule and any required statements and analyses may be obtained from:

Mary Gammon, State Education Department, Office of Counsel, 89 Washington Avenue, Room 148, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Peg Rivers, State Education Department, 89 Washington Avenue, Rm 977 EBA, Albany, NY 12234, [phone], email: [e-mail]

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

1. STATUTORY AUTHORITY:

Section 207 of the Education Law grants general rule-making authority to the Board of Regents to carry into effect the laws and policies of the State relating to education.

Section 210 of the Education Law grants to the Board of Regents the authority to register domestic and foreign institutions in terms of New York standards.

Section 214 of the Education Law provides that higher educational institutions that are incorporated in New York State shall be members of The University of the State of New York.

Section 215 of the Education Law authorizes the Commissioner of Education to visit, examine, and inspect schools or institutions under the educational supervision of the State and require reports from such schools.

Subdivision (1) of section 305 of the Education Law empowers the Commissioner of Education to enforce all laws relating to the educational system of the State and execute all educational policies determined by the Board of Regents.

Subdivision (2) of section 305 of the Education Law authorizes the Commissioner of Education to have general supervision over all schools and institutions subject to the Education Law.

2. LEGISLATIVE OBJECTIVES:

The proposed amendment carries out the legislative objectives of the above-referenced statutes by clarifying the standards and procedures that must be met by institutions of higher education that voluntarily seek institutional accreditation by the Board of Regents and the Commissioner of Education in order to participate in programs established by Title IV of the Higher Education Act.

3. NEEDS AND BENEFITS:

In June 2001, the Board of Regents adopted Part 4 of the Rules of the Board of Regents, Voluntary Institutional Accreditation for Title IV Purposes (now Subpart 4-1) as part of a process of complying with the requirements in regulations of the U.S. Department of Education (34 CFR Part 602) for continued recognition of the Board of Regents as an institutional accrediting agency. One of the Federal regulations requires each Nationally Recognized Accrediting Agency to have “a systematic program of review that demonstrates that its standards are adequate to evaluate the quality of the education or training provided by the institutions and programs it accredits and relevant to the educational or training needs of students”. (34 CFR 602.21[a])

As a result of the review of accreditation standards, including an assessment of their alignment with revised Federal standards for accreditation agencies (34 CFR Part 602), the Department proposes to clarify and update the existing regulation.

In addition, as part of its final analysis of the Department’s application to continue as an accrediting agency, the United States Department of Education identified items on which it could not confirm technical compliance with the federal accreditation regulations. The proposed amendment addresses their findings in the following areas: appeals procedure; conflict-of-interest and recusal training; processes for handling substantive changes and distance education; notifications of actions demonstrating compliance with accreditation standards; and demonstration of the Regents role in the decision-making process. These changes are summarized as follows:

Paragraph (2) of subdivision (d) of section 3.12 of the Rules of the Board of Regents is amended to require that the Regents Advisory Council be comprised of at least 9 members, at least 2 of which shall be senior administrators; at least two 2 shall have experience as full-time faculty members in degree-granting institutions and at least one shall be a full-time faculty member at the time of appointment. At least two other voting members or one-seventh of the total voting members of the council, whichever is greater, shall be representatives of the public as defined in the proposed amendment.

Subdivision (e) shall be added to section 3.12 to create an institutional accreditation appeals board to review and decide appeals from an institution(s) of an adverse accreditation action(s) or probationary accreditation decision(s) of the Board of Regents pursuant the procedures outlined in section 4-1.5 of this Title. The proposed amendment defines the composition of the board.

Subdivision (d) of section 4-1.3 of the Rules of the Board of Regents is amended to clarify that the corrective action period may be extended for a maximum period of 12 months.

Subdivision (f) of section 4-1.3 of the Rules of the Board of Regents is amended to require an institution to obtain approval from the Commissioner and the Board of Regents before the department will include the substantive change in the scope of accreditation it previously granted to the institution.

Paragraph (3) of subdivision (f) of section 4-1.3 of the Rules of the Board of Regents is repealed.

Subdivision (g) of section 4-1.3 of the Rules of the Board of Regents is repealed and a new subdivision (g) is added to prohibit the Commissioner and the Board of Regents from granting initial or a renewal of accreditation to an institution, or a program offered by an institution, if the Commissioner and the Board of Regents knows, or has reasonable cause to know, that the institution is the subject of:

(1) a pending or final action against the institution or a program at such institution by a State agency to suspend, revoke, withdraw, or terminate the institution’s legal authority to provide postsecondary education in the State;

(2) a decision by a nationally recognized accrediting agency to deny accreditation or preaccreditation;

(3) a pending or final action brought by a nationally recognized accrediting agency to suspend, revoke, withdraw, or terminate the institution’s accreditation or preaccreditation; or

(4) probation or an equivalent status imposed by a recognized agency.

A new subdivision (h) shall be added to section 4-1.3 of the Rules of the Board of Regents to provide that if the Commissioner and the Board of Regents learn that an accredited institution, or an institution that offers a program it accredits, is the subject of an adverse action by another recognized accrediting agency or has been placed on probation or an equivalent status by another recognized agency, the Commissioner and the Board of Regents shall promptly review its accreditation through the compliance review procedure in section 4-1.5 of this Subpart to determine if it should also take adverse action or place the institution on probation. The Commissioner and the Board of Regents shall only grant accreditation or a renewal of accreditation to an institution described in subdivision (g) of this section if the institution satisfactorily meets the standards of the compliance review procedure described in section 4-1.5 of this Subpart. If the Commissioner and the Board of Regents grant accreditation or a renewal of accreditation after a compliance review, the Commissioner and the Board of Regents shall provide to the U.S. Secretary of Education, within 30 days of its action, a thorough and reasonable explanation, consistent with its standards, why the action of the other body does not preclude the grant of accreditation or renewal of accreditation.

Subdivision (g) of section 4-1.4 of the Rules of the Board of Regents is amended to require that the process and criteria for accepting transfer of credit be publicly disclosed and include a statement of the criteria established by the institution regarding the transfer of credit earned at another institution of higher education and a list of the institutions with which the institution has established articulation agreements.

Paragraph (2) of subdivision (l) of section 4-1.4 of the Rules of the Board of Regents shall be renumbered to paragraph (3) of subdivision (l) of section 4-1.4 of the Rules of the Board of Regents and a new paragraph (2) shall be added to subdivision (l) of section 4-1.4 to require an institution’s teach-out plan to ensure that it provides for the equitable treatment of students pursuant to criteria established by the Commissioner and the Board of Regents and that the plan specifies additional charges, if any, and provides for notification to the students of any additional charges.

Subdivision (a) of section 4-1.5 of the Rules of the Board of Regents is amended to allow an institution to seek the review of new financial information only once and to clarify that any determination on the new financial information does not provide a basis for appeal.

Subdivision (a) of section 4-1.5 of the Rules of the Board of Regents is amended to specifically provide that the Regents shall review any papers, written responses filed, the record before the advisory council, the record of its deliberations, and its findings and recommendations and any other information considered by the commissioner. In addition, if the Board of Regents decision includes an adverse accreditation action or probationary accreditation, the Board of Regents shall notify the institution of its right to a hearing before the institutional accreditation appeals board.

This subdivision is also amended to set forth the process for an appeal and/or a hearing of a determination of adverse accreditation action or probationary accreditation before the institutional accreditation appeals board.

Section 4-1.5 of the Rules of the Board of Regents shall be amended to require the Board of Regents to review any papers, written responses filed, the record before the advisory council, the record of its deliberations, and its findings and recommendations and any other information considered by the commissioner.

Paragraphs (9) and (10) of subdivision (c) of section 4-1.5 to require the Board of Regents to review any papers, written responses filed, the record before the advisory council, the record of its deliberations, and its findings and recommendations and any other information considered by the commissioner before issuing its decision.

It also describes the process for an institution to appeal a Regents determination of adverse accreditation action or granting probationary accreditation to the institutional accreditation appeals board.

Subdivision (d) of section 4-1.5 of the Rules of the Board of Regents shall be amended to changes the procedures for a change in scope of accreditation when there is a substantive change to conform with the federal requirements.

4. COSTS:

(a) Costs to State government. This amendment will not impose any additional costs on State government over and above the current costs for accrediting institutions pursuant to Subpart 4-1 of the Rules of the Board of Regents. The Department will use existing personnel and resources to review institutions for accreditation under this Subpart.

(b) Costs to local government. None.

(c) Costs to private regulated parties. The proposed amendment relates to voluntary institutional accreditation. The State Education Department expects that existing faculty and staff at colleges and universities choosing the Board of Regents as their institutional accrediting agency will have the necessary expertise to satisfy the requirements of the proposed amendment as part of their ongoing responsibilities. The amendment does not impose additional costs on such colleges and universities.

(d) Costs to the regulatory agency. As stated above under Costs to State Government, the proposed amendment would not impose additional costs on the State Education Department.

5. LOCAL GOVERNMENT MANDATES:

The proposed amendment concerns the institutional accreditation of institutions of higher education. It does not impose any program, service, duty, or responsibility on local governments.

6. PAPERWORK:

There are no additional paperwork requirements beyond those imposed by the federal regulations.

7. DUPLICATION:

The standards and procedures for voluntary institutional accreditation build on requirements and standards for the registration of undergraduate and graduate programs set forth in Part 52 of the Regulations of the Commissioner of Education. In some cases, additional requirements are imposed for accreditation, but these standards do not conflict with program registration standards.

8. ALTERNATIVES:

There are no viable alternatives to the proposed amendment, and none were considered.

9. FEDERAL STANDARDS:

The proposed amendment is consistent with Federal requirements, which specify the standards, for which an accrediting agency will be approved by U.S. Secretary of Education. In addition, Federal standards require a recognized accreditation agency to carry out periodic reviews of the agency’s accreditation standards.

10. COMPLIANCE SCHEDULE:

The amendment will be effective on its stated effective date. No additional time is needed to comply.

Regulatory Flexibility Analysis

Small Businesses:

1. EFFECT OF RULE:

The proposed amendment to the Rules of the Board of Regents applies to institutions of higher education applying for institutional accreditation or renewal of such accreditation by the Board of Regents and the Commissioner of Education for Title IV purposes. On the basis of the most recent data transmitted to the State Education Department, 3 of the 25 institutions of higher education that have voluntarily chosen the Commissioner and the Board of Regents as their institutional accreditor are for-profit small businesses with 100 or fewer employees.

2. COMPLIANCE REQUIREMENTS:

In its final analysis of the Department’s application to continue as an accrediting agency, the United States Department of Education identified items on which it could not confirm technical compliance with the federal accreditation regulations. The proposed amendment addresses their findings in the following areas: appeals procedure; conflict-of-interest and recusal training; processes for handling substantive changes and distance education; notifications of actions demonstrating compliance with accreditation standards; and demonstration of the Regents role in the decision-making process. These changes are summarized as follows:

Paragraph (2) of subdivision (d) of section 3.12 of the Rules of the Board of Regents is amended to require that the Regents Advisory Council be comprised of at least 9 members, at least 2 of which shall be senior administrators; at least two 2 shall have experience as full-time faculty members in degree-granting institutions and at least one shall be a full-time faculty member at the time of appointment. At least two other voting members or one-seventh of the total voting members of the council, whichever is greater, shall be representatives of the public as defined in the proposed amendment.

Subdivision (e) shall be added to section 3.12 to create an institutional accreditation appeals board to review and decide appeals from an institution(s) of an adverse accreditation action(s) or probationary accreditation decision(s) of the Board of Regents pursuant the procedures outlined in section 4-1.5 of this Title. The proposed amendment defines the composition of the board.

Subdivision (d) of section 4-1.3 of the Rules of the Board of Regents is amended to clarify that the corrective action period may be extended for a maximum period of 12 months.

Subdivision (f) of section 4-1.3 of the Rules of the Board of Regents is amended to require an institution to obtain approval from the Commissioner and the Board of Regents before the department will include the substantive change in the scope of accreditation it previously granted to the institution.

Paragraph (3) of subdivision (f) of section 4-1.3 of the Rules of the Board of Regents is repealed.

Subdivision (g) of section 4-1.3 of the Rules of the Board of Regents is repealed and a new subdivision (g) is added to prohibit the Commissioner and the Board of Regents from granting initial or a renewal of accreditation to an institution, or a program offered by an institution, if the Commissioner and the Board of Regents knows, or has reasonable cause to know, that the institution is the subject of:

(1) a pending or final action against the institution or a program at such institution by a State agency to suspend, revoke, withdraw, or terminate the institution’s legal authority to provide postsecondary education in the State;

(2) a decision by a nationally recognized accrediting agency to deny accreditation or preaccreditation;

(3) a pending or final action brought by a nationally recognized accrediting agency to suspend, revoke, withdraw, or terminate the institution’s accreditation or preaccreditation; or

(4) probation or an equivalent status imposed by a recognized agency.

A new subdivision (h) shall be added to section 4-1.3 of the Rules of the Board of Regents to provide that if the Commissioner and the Board of Regents learn that an accredited institution, or an institution that offers a program it accredits, is the subject of an adverse action by another recognized accrediting agency or has been placed on probation or an equivalent status by another recognized agency, the Commissioner and the Board of Regents shall promptly review its accreditation through the compliance review procedure in section 4-1.5 of this Subpart to determine if it should also take adverse action or place the institution on probation. The Commissioner and the Board of Regents shall only grant accreditation or a renewal of accreditation to an institution described in subdivision (g) of this section if the institution satisfactorily meets the standards of the compliance review procedure described in section 4-1.5 of this Subpart. If the Commissioner and the Board of Regents grant accreditation or a renewal of accreditation after a compliance review, the Commissioner and the Board of Regents shall provide to the U.S. Secretary of Education, within 30 days of its action, a thorough and reasonable explanation, consistent with its standards, why the action of the other body does not preclude the grant of accreditation or renewal of accreditation.

Subdivision (g) of section 4-1.4 of the Rules of the Board of Regents is amended to require that the process and criteria for accepting transfer of credit be publicly disclosed and include a statement of the criteria established by the institution regarding the transfer of credit earned at another institution of higher education and a list of the institutions with which the institution has established articulation agreements.

Paragraph (2) of subdivision (l) of section 4-1.4 of the Rules of the Board of Regents shall be renumbered to paragraph (3) of subdivision (l) of section 4-1.4 of the Rules of the Board of Regents and a new paragraph (2) shall be added to subdivision (l) of section 4-1.4 to require an institution’s teach-out plan to ensure that it provides for the equitable treatment of students pursuant to criteria established by the Commissioner and the Board of Regents and that the plan specifies additional charges, if any, and provides for notification to the students of any additional charges.

Subdivision (a) of section 4-1.5 of the Rules of the Board of Regents is amended to allow an institution to seek the review of new financial information only once and to clarify that any determination on the new financial information does not provide a basis for appeal.

Subdivision (a) of section 4-1.5 of the Rules of the Board of Regents is amended to specifically provide that the Regents shall review any papers, written responses filed, the record before the advisory council, the record of its deliberations, and its findings and recommendations and any other information considered by the commissioner. In addition, if the Board of Regents decision includes an adverse accreditation action or probationary accreditation, the Board of Regents shall notify the institution of its right to a hearing before the institutional accreditation appeals board.

This subdivision is also amended to set forth the process for an appeal and/or a hearing of a determination of adverse accreditation action or probationary accreditation before the institutional accreditation appeals board.

Section 4-1.5 of the Rules of the Board of Regents shall be amended to require the Board of Regents to review any papers, written responses filed, the record before the advisory council, the record of its deliberations, and its findings and recommendations and any other information considered by the commissioner.

Paragraphs (9) and (10) of subdivision (c) of section 4-1.5 to require the Board of Regents to review any papers, written responses filed, the record before the advisory council, the record of its deliberations, and its findings and recommendations and any other information considered by the commissioner before issuing its decision.

It also describes the process for an institution to appeal a Regents determination of adverse accreditation action or granting probationary accreditation to the institutional accreditation appeals board.

Subdivision (d) of section 4-1.5 of the Rules of the Board of Regents shall be amended to changes the procedures for a change in scope of accreditation when there is a substantive change to conform with the federal requirements.

3. PROFESSIONAL SERVICES:

The Department expects that existing faculty and administrative staff of the institutions, including those that are small businesses, will meet the requirements of the proposed amendment as part of their on-going responsibilities.

No additional professional services are expected to be required by small businesses to comply with the proposed amendment.

4. COMPLIANCE COSTS:

The proposed amendment relates to voluntary institutional accreditation. The proposed amendment will not impose costs beyond those currently required under Subpart 4-1 of the Rules of the Board of Regents.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed amendment will not impose any additional technological requirements on colleges and universities that voluntarily choose the Board of Regents and the Commissioner of Education as their institutional accrediting agency. As stated above in “Compliance Costs,” the amendment will not result in additional costs to regulated parties.

6. MINIMIZING ADVERSE IMPACT:

The State Education Department has determined that uniform standards for institutional accreditation are necessary to help ensure the quality of all institutions that are accredited. Moreover, the United States Department of Education’s regulations require that these standards to be applied Because of the nature of the proposed amendment, different standards for institutions that are small businesses are not feasible.

7. SMALL BUSINESS PARTICIPATION:

The Department solicited comments on the proposed amendment from the Regents Advisory Council, which has representatives from small businesses.

(b) Local governments:

The proposed amendment establishes requirements and clarifies existing standards and procedures for voluntary institutional accreditation of higher education institutions by the Board of Regents and the Commissioner of Education. It does not impose any adverse economic impact, reporting, recordkeeping, or other compliance requirements on local governments. Because it is evident from the nature of the proposed amendment that it does not affect local governments, no further steps were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for local governments is not required and one has not been prepared.

Rural Area Flexibility Analysis

1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS:

The proposed amendment applies to institutions of higher education voluntarily choosing to apply to the Board of Regents and the Commissioner of Education for institutional accreditation. Three of the 25 institutions currently accredited by the Commissioner and the Board of Regents are located in rural counties with less than 200,000 inhabitants or in towns with a population density of 150 per square mile or less in urban counties.

2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:

In its final analysis of the Department’s application to continue as an accrediting agency, the United States Department of Education identified items on which it could not confirm technical compliance with the federal accreditation regulations. The proposed amendment addresses their findings in the following areas: appeals procedure; conflict-of-interest and recusal training; processes for handling substantive changes and distance education; notifications of actions demonstrating compliance with accreditation standards; and demonstration of the Regents role in the decision-making process. These changes are summarized as follows:

Paragraph (2) of subdivision (d) of section 3.12 of the Rules of the Board of Regents is amended to require that the Regents Advisory Council be comprised of at least 9 members, at least 2 of which shall be senior administrators; at least two 2 shall have experience as full-time faculty members in degree-granting institutions and at least one shall be a full-time faculty member at the time of appointment. At least two other voting members or one-seventh of the total voting members of the council, whichever is greater, shall be representatives of the public as defined in the proposed amendment.

Subdivision (e) shall be added to section 3.12 to create an institutional accreditation appeals board to review and decide appeals from an institution(s) of an adverse accreditation action(s) or probationary accreditation decision(s) of the Board of Regents pursuant the procedures outlined in section 4-1.5 of this Title. The proposed amendment defines the composition of the board.

Subdivision (d) of section 4-1.3 of the Rules of the Board of Regents is amended to clarify that the corrective action period may be extended for a maximum period of 12 months.

Subdivision (f) of section 4-1.3 of the Rules of the Board of Regents is amended to require an institution to obtain approval from the Commissioner and the Board of Regents before the department will include the substantive change in the scope of accreditation it previously granted to the institution.

Paragraph (3) of subdivision (f) of section 4-1.3 of the Rules of the Board of Regents is repealed.

Subdivision (g) of section 4-1.3 of the Rules of the Board of Regents is repealed and a new subdivision (g) is added to prohibit the Commissioner and the Board of Regents from granting initial or a renewal of accreditation to an institution, or a program offered by an institution, if the Commissioner and the Board of Regents knows, or has reasonable cause to know, that the institution is the subject of:

(1) a pending or final action against the institution or a program at such institution by a State agency to suspend, revoke, withdraw, or terminate the institution’s legal authority to provide postsecondary education in the State;

(2) a decision by a nationally recognized accrediting agency to deny accreditation or preaccreditation;

(3) a pending or final action brought by a nationally recognized accrediting agency to suspend, revoke, withdraw, or terminate the institution’s accreditation or preaccreditation; or

(4) probation or an equivalent status imposed by a recognized agency.

A new subdivision (h) shall be added to section 4-1.3 of the Rules of the Board of Regents to provide that if the Commissioner and the Board of Regents learn that an accredited institution, or an institution that offers a program it accredits, is the subject of an adverse action by another recognized accrediting agency or has been placed on probation or an equivalent status by another recognized agency, the Commissioner and the Board of Regents shall promptly review its accreditation through the compliance review procedure in section 4-1.5 of this Subpart to determine if it should also take adverse action or place the institution on probation. The Commissioner and the Board of Regents shall only grant accreditation or a renewal of accreditation to an institution described in subdivision (g) of this section if the institution satisfactorily meets the standards of the compliance review procedure described in section 4-1.5 of this Subpart. If the Commissioner and the Board of Regents grant accreditation or a renewal of accreditation after a compliance review, the Commissioner and the Board of Regents shall provide to the U.S. Secretary of Education, within 30 days of its action, a thorough and reasonable explanation, consistent with its standards, why the action of the other body does not preclude the grant of accreditation or renewal of accreditation.

Subdivision (g) of section 4-1.4 of the Rules of the Board of Regents is amended to require that the process and criteria for accepting transfer of credit be publicly disclosed and include a statement of the criteria established by the institution regarding the transfer of credit earned at another institution of higher education and a list of the institutions with which the institution has established articulation agreements.

Paragraph (2) of subdivision (l) of section 4-1.4 of the Rules of the Board of Regents shall be renumbered to paragraph (3) of subdivision (l) of section 4-1.4 of the Rules of the Board of Regents and a new paragraph (2) shall be added to subdivision (l) of section 4-1.4 to require an institution’s teach-out plan to ensure that it provides for the equitable treatment of students pursuant to criteria established by the Commissioner and the Board of Regents and that the plan specifies additional charges, if any, and provides for notification to the students of any additional charges.

Subdivision (a) of section 4-1.5 of the Rules of the Board of Regents is amended to allow an institution to seek the review of new financial information only once and to clarify that any determination on the new financial information does not provide a basis for appeal.

Subdivision (a) of section 4-1.5 of the Rules of the Board of Regents is amended to specifically provide that the Regents shall review any papers, written responses filed, the record before the advisory council, the record of its deliberations, and its findings and recommendations and any other information considered by the commissioner. In addition, if the Board of Regents decision includes an adverse accreditation action or probationary accreditation, the Board of Regents shall notify the institution of its right to a hearing before the institutional accreditation appeals board.

This subdivision is also amended to set forth the process for an appeal and/or a hearing of a determination of adverse accreditation action or probationary accreditation before the institutional accreditation appeals board.

Section 4-1.5 of the Rules of the Board of Regents shall be amended to require the Board of Regents to review any papers, written responses filed, the record before the advisory council, the record of its deliberations, and its findings and recommendations and any other information considered by the commissioner.

Paragraphs (9) and (10) of subdivision (c) of section 4-1.5 to require the Board of Regents to review any papers, written responses filed, the record before the advisory council, the record of its deliberations, and its findings and recommendations and any other information considered by the commissioner before issuing its decision.

It also describes the process for an institution to appeal a Regents determination of adverse accreditation action or granting probationary accreditation to the institutional accreditation appeals board.

Subdivision (d) of section 4-1.5 of the Rules of the Board of Regents shall be amended to changes the procedures for a change in scope of accreditation when there is a substantive change to conform with the federal requirements.

The proposed changes will help ensure technical alignment with federal requirements for institutional accrediting agencies. In keeping with those requirements, the Department will continue to review its accreditation standards and processes.

3. COSTS.

The State Education Department expects that existing faculty and staff at colleges and universities choosing the Board of Regents as their institutional accrediting agency will have the necessary expertise to satisfy the requirements of the proposed amendment as part of their ongoing responsibilities. The amendment will not impose additional costs on such colleges and universities.

4. MINIMIZING ADVERSE IMPACT:

The proposed amendment makes no exception for institutions that are located in rural areas. The standards for institutional accreditation are defined in Federal regulations (34 CFR Part 602). As an accrediting agency recognized by U.S. Secretary of Education, the Board of Regents and Commissioner of Education institutional accreditation standards are aligned with Federal standards. The requirements in each of these subject categories must be met regardless of the location of the institution. As a result, it is not appropriate to establish different standards for institutions located in rural areas of New York State.

5. RURAL AREA PARTICIPATION:

The Department solicited comments on the proposed amendment from the Regents Advisory Council, which has representatives located in rural areas of the State.

6. INITIAL REVIEW OF RULE (SAPA § 207):

Pursuant to State Administrative Procedure Act section 207(1)(b), the State Education Department proposes that the initial review of this rule shall occur in the fifth calendar year after the year in which the rule is adopted, instead of in the third calendar year. The justification for a five year review period is that the proposed amendment merely implements, and conforms the Commissioner's Regulations to the federal accreditation standards and, therefore, the substantive provisions of the proposed amendment cannot be repealed or modified unless there is a further statutory change. Accordingly, there is no need for a shorter review period. The Department invites public comment on the proposed five year review period for this rule. Comments should be sent to the agency contact listed on the Notice of Proposed Rule Making published herewith, and must be received within 45 days of the State Register publication date of the Notice.

Job Impact Statement

The proposed amendment clarifies existing standards and procedures that must be met by institutions of higher education seeking voluntary accreditation by the Board of Regents and the Commissioner of Education. The State Education Department expects that the proposed amendment will not have a negative impact on the number of jobs or employment opportunities at higher education institutions or in any other field, and that higher education institutions will use existing staff to satisfy accreditation requirements as part of their on-going responsibilities. Therefore, the amendment will have no impact on jobs or employment opportunities at these institutions. Because it is evident from the nature of the proposed amendment that it will have no impact on jobs and employment opportunities, no further steps were needed to ascertain these facts and none were taken. Accordingly, a job impact statement was not required and one was not prepared.