[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
EDUCATION REGULATIONS: FEDERAL
OVERREACH INTO ACADEMIC AFFAIRS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON HIGHER EDUCATION
AND WORKFORCE TRAINING
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. House of Representatives
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
HEARING HELD IN WASHINGTON, DC, MARCH 11, 2011
__________
Serial No. 112-11
__________
Printed for the use of the Committee on Education and the Workforce
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COMMITTEE ON EDUCATION AND THE WORKFORCE
JOHN KLINE, Minnesota, Chairman
Thomas E. Petri, Wisconsin George Miller, California,
Howard P. ``Buck'' McKeon, Senior Democratic Member
California Dale E. Kildee, Michigan
Judy Biggert, Illinois Donald M. Payne, New Jersey
Todd Russell Platts, Pennsylvania Robert E. Andrews, New Jersey
Joe Wilson, South Carolina Robert C. ``Bobby'' Scott,
Virginia Foxx, North Carolina Virginia
Duncan Hunter, California Lynn C. Woolsey, California
David P. Roe, Tennessee Ruben Hinojosa, Texas
Glenn Thompson, Pennsylvania Carolyn McCarthy, New York
Tim Walberg, Michigan John F. Tierney, Massachusetts
Scott DesJarlais, Tennessee Dennis J. Kucinich, Ohio
Richard L. Hanna, New York David Wu, Oregon
Todd Rokita, Indiana Rush D. Holt, New Jersey
Larry Bucshon, Indiana Susan A. Davis, California
Trey Gowdy, South Carolina Raul M. Grijalva, Arizona
Lou Barletta, Pennsylvania Timothy H. Bishop, New York
Kristi L. Noem, South Dakota David Loebsack, Iowa
Martha Roby, Alabama Mazie K. Hirono, Hawaii
Joseph J. Heck, Nevada
Dennis A. Ross, Florida
Mike Kelly, Pennsylvania
[Vacant]
Barrett Karr, Staff Director
Jody Calemine, Minority Staff Director
SUBCOMMITTEE ON HIGHER EDUCATION AND WORKFORCE TRAINING
VIRGINIA FOXX, North Carolina, Chairwoman
John Kline, Minnesota Ruben Hinojosa, Texas
Thomas E. Petri, Wisconsin Ranking Minority Member
Howard P. ``Buck'' McKeon, John F. Tierney, Massachusetts
California David Wu, Oregon
Judy Biggert, Illinois Timothy H. Bishop, New York
Todd Russell Platts, Pennsylvania Robert E. Andrews, New Jersey
David P. Roe, Tennessee Susan A. Davis, California
Glenn Thompson, Pennsylvania Raul M. Grijalva, Arizona
Richard L. Hanna, New York David Loebsack, Iowa
Larry Bucshon, Indiana George Miller, California
Lou Barletta, Pennsylvania
Joseph J. Heck, Nevada
C O N T E N T S
----------
Page
Hearing held on March 11, 2011................................... 1
Statement of Members:
Andrews, Hon. Robert E., a Representative in Congress from
the State of New Jersey, submission for the record:
Letter, dated Feb. 16, 2011, to Secretary Duncan, from
the American Council on Education (ACE)................ 77
Foxx, Hon. Virginia, Chairwoman, Subcommittee on Higher
Education and Workforce Training........................... 1
Prepared statement of.................................... 3
Letter, dated Mar. 10, 2011, from the American Council on
Education.............................................. 73
Hinojosa, Hon. Ruben, ranking member, Subcommittee on Higher
Education and Workforce Training........................... 4
Prepared statement of.................................... 5
Thompson, Hon. Glenn, a Representative in Congress from the
State of Pennsylvania, submission for the record:
Letter, dated Mar. 1, 2011, to Secretary Duncan from
Citizens for Responsibility and Ethics in
Washington (CREW).................................. 39
Statement of Witnesses:
Dowden, G. Blair, president, Huntington University........... 12
Prepared statement of.................................... 14
Ebersole, John, president, Excelsior College................. 8
Prepared statement of.................................... 10
Tighe, Kathleen S., Inspector General, U.S. Department of
Education.................................................. 16
Prepared statement of.................................... 18
Supplemental material submitted for the record........... 81
Wolff, Ralph A., president, the Accrediting Commission for
Senior Colleges and Universities of the Western Association
of Schools and Colleges (WASC)............................. 19
Prepared statement of.................................... 21
Additional submissions:
Memo, dated June 30, 2010, ``State by State Analysis
(34 C.F.R. Sec. 600.9)''........................... 25
Letter, dated Mar. 2, 2011, to Secretary Duncan...... 31
Letter, dated Feb. 16, 2011, to Secretary Duncan..... 77
EDUCATION REGULATIONS: FEDERAL OVERREACH INTO ACADEMIC AFFAIRS
----------
Friday, March 11, 2011
U.S. House of Representatives
Subcommittee on Higher Education and Workforce Training
Committee on Education and the Workforce
Washington, DC
----------
The subcommittee met, pursuant to call, at 10:00 a.m., in
Room 2175, Rayburn House Office Building, Hon. Virginia Foxx
[chairwoman of the subcommittee] presiding.
Present: Representatives Foxx, Kline, Petri, Thompson,
Hinojosa, Tierney, Bishop, Andrews, and Davis.
Staff present: Katherine Bathgate, Press Assistant; James
Bergeron, Director of Education and Human Services Policy;
Colette Beyer, Press Secretary-Education; Kirk Boyle, General
Counsel; Casey Buboltz, Coalitions and Member Services
Coordinator; Daniela Garcia, Professional Staff Member; Jimmy
Hopper, Legislative Assistant; Amy Raaf Jones, Education Policy
Counsel and Senior Advisor; Barrett Karr, Staff Director; Brian
Melnyk, Legislative Assistant; Mandy Schaumburg, Education and
Human Services Oversight Counsel; Linda Stevens, Chief Clerk/
Assistant to the General Counsel; Alissa Strawcutter, Deputy
Clerk; Aaron Albright, Minority Deputy Communications Director;
Tylease Alli, Minority Hearing Clerk; Daniel Brown, Minority
Staff Assistant; John English, Minority Presidential Management
Fellow; Jamie Fasteau, Minority Deputy Director of Education
Policy; Brian Levin, Minority New Media Press Assistant; Megan
O'Reilly, Minority General Counsel; Julie Peller, Minority
Deputy Staff Director; Melissa Salmanowitz, Minority Press
Secretary; Laura Schifter, Minority Senior Education and
Disability Policy Advisor; and Michael Zola, Minority Chief
Investigative Counsel.
Chairwoman Foxx [presiding]. Good morning. A quorum being
present, the subcommittee will come to order. I want to welcome
everyone to the subcommittee's first hearing of the 112th
Congress.
And I want to give a special thanks to our witnesses for
being with us today. We appreciate your time and look forward
to your testimony. We are here this morning to examine
burdensome regulations imposed on institutions of higher
education and accrediting bodies via the Department of
Education.
We can all agree today that the United States has the
finest higher education system in the world and it draws
students from all around the globe. But we are also aware of
the strain federal regulations can place on schools.
In this era of limited resources these regulations can
serve to distract schools from efficiently delivering services
to their students. That means onerous mandates force
institutions to dedicate scarce resources towards compliance
instead of focusing on meeting student needs.
At a time when we should be encouraging common sense
education reforms, more regulatory hurdles serve only to
undermine the strength of the nation's education system.
In late 2010 the administration introduced regulations on
14 separate higher education issues. While many of these new
regulations inject the federal government into areas that have
historically been the responsibility of the states or
institutions of higher education.
Two of them are particularly alarming; the new state
authorization regulation forces states to follow federal
requirements when deciding whether to grant a college or
university permission to operate within the state.
Many institutions fear this is only the beginning of the
federal government and states exercising more control over
their colleges and universities.
For schools providing distance education programs this
regulation could require them to obtain authorization in every
state where an enrolled student resides to participate in the
federal student aid programs.
Even if a school has just one student from a state enrolled
in an online program, the institution will still be required to
go through the process of obtaining authorization in that
state.
Schools with more advanced online education opportunities
could be forced to deal with this process in all 50 states.
Another worrisome regulation creates the first federal
definition of a credit hour and requires specific criteria to
be used when assessing an institution's definition of a credit
hour.
School officials are concerned that this regulation will
restrict their ability to determine the number of credit hours
for each course, an inherently academic function. While the
credit hour is important to the distribution of federal student
assistance, institutions of higher education fear they will be
required to check in with the government before creating
courses and programs eligible for such funding.
To make matters worse, very little information exists on
how these regulatory changes could affect students. The state
authorization regulation could restrict the student's ability
to enroll in a distance education program if the school is not
recognized as an accredited online institution in his or her
state. The credit hour regulation also stands to restrict the
efficiency and productivity at an institution by limiting their
ability to create innovative ways to educate students in
shorter periods of time.
Many institutions of higher education have been left in the
dark on how to proceed. In fact we have just received a letter
from the American Council on Education asking us to request the
delay of one year of these regulations because of the
confusion.
Unless the Department can provide some clarifying guidance
before the July 1, 2011 deadline, schools, states, and
accreditors will be left to wonder whether their inability to
comply with the unclear regulations will jeopardize schools
eligibility to receive federal financial aid.
As such, a delay or complete withdrawal, actually, may be
the appropriate action here.
These regulations constitute a federal overreach into
academic affairs. Like many other burdensome government
mandates, both reduce local control and create uncertainty in
the higher education system.
Escalated intervention by Washington bureaucrats has done
little to fix the problems in our education system. Instead of
more regulations we need to support policies that streamline
the government's role in education and provide for more
flexibility for states and education institutions.
We look forward to hearing your thoughts on federal
regulations like these and gaining your perspective on what
should be done in Washington to decrease their negative impact.
I would now like to recognize Ranking Member Ruben Hinojosa
for his opening remarks.
[The statement of Chairwoman Foxx follows:]
Prepared Statement of Hon. Virginia Foxx, Chairwoman, Subcommittee on
Higher Education and Workforce Training
A quorum being present, the subcommittee will come to order.
Welcome everyone to the subcommittee's first hearing of the 112th
Congress. I would like to thank our witnesses for being with us today.
We appreciate your time and look forward to your testimony.
We are here this morning to examine burdensome regulations imposed
on institutions of higher education and accrediting bodies by the
Department of Education.
We can all agree today that the United States has the finest higher
education system in the world, which draws students from around the
globe. But we are also all aware of the strain federal regulations can
place on schools. In this era of limited resources, these regulations
can serve to distract schools from efficiently delivering services to
their students. That means onerous mandates force institutions to
dedicate scarce resources toward compliance instead of focusing on
meeting student needs. At a time when we should be encouraging common
sense education reforms, more regulatory hurdles serve only to
undermine the strength of the nation's education system.
In late 2010, the administration introduced regulations on 14
separate higher education issues. While many of these new regulations
inject the federal government into areas that have historically been
the responsibility of the states or institutions of higher education,
two of them are particularly alarming.
The new state authorization regulation forces states to follow
federal requirements when deciding whether to grant a college or
university permission to operate within the state. Many institutions
fear this is only the beginning of the federal government and states
exercising more control over their colleges and universities. For
schools providing distance education programs, this regulation could
require them to obtain authorization in every state where an enrolled
student resides to participate in the federal student aid programs.
Even if a school has just one student from a state enrolled in an
online program, the institution will still be required to go through
the process of obtaining authorization in that state. Schools with more
advanced online education opportunities could be forced to deal with
this process in all fifty states.
Another worrisome regulation creates the first federal definition
of a credit hour and requires specific criteria to be used when
assessing an institution's definition of a credit hour. School
officials are concerned that this regulation will restrict their
ability to determine the number of credit hours for each course, an
inherently academic function. While the credit hour is important to the
distribution of federal student assistance, institutions of higher
education fear they will be required to check in with the government
before creating courses and programs eligible for such funding.
To make matters worse, very little information exists on how these
regulatory changes could affect students. The state authorization
regulation could restrict a student's ability to enroll in a distance
education program if the school is not recognized as an accredited
online institution in his or her state. The credit hour regulation also
stands to restrict efficiency and productivity at an institution by
limiting their ability to create innovative ways to educate students in
shorter periods of time.
Many institutions of higher education have been left in the dark on
how to proceed. In fact, we have just received a letter from the
American Council on Education asking us to request a delay of one year
of these regulations because of the confusion. Unless the department
can provide some clarifying guidance before the July 1, 2011 deadline,
schools, states, and accreditors will be left to wonder whether their
inability to comply with the unclear regulations will jeopardize
schools' eligibility to receive federal financial aid. As such, a
delay--or complete withdrawal actually--may be the appropriate action
here.
These regulations constitute a federal overreach into academic
affairs. Like many other burdensome government mandates, both reduce
local control and create uncertainty in the higher education system.
Escalated intervention by Washington bureaucrats has done little to fix
the problems in our education system. Instead of more regulations, we
need to support policies that streamline the government's role in
education and provide for more flexibility for states and education
institutions.
We look forward to hearing your thoughts on federal regulations
like these and gaining your perspective on what should be done in
Washington to decrease their negative impact. I would now like to
recognize the Ranking Member, Ruben Hinojosa, for his opening remarks.
______
Mr. Hinojosa. Thank you Chairwoman Foxx. Today our
discussion will focus on two vitally important regulations; the
definition of a credit hour and the criteria the secretary uses
to determine that institutions are authorized to provide post-
secondary education in their states.
In my view, these regulations are greatly needed to
strengthen the accountability and review of institutions of
higher education that participate in the federal student aid
programs. Every year the federal government spends billions of
dollars on student financial aid. It is imperative that
Congress and the Department of Education provide strong
oversight for these federal student dollars.
On May 24, 2010 the Office of the Inspector General, the
IG, issued a review of the Higher Learning Commission, I will
refer to it as HLC, of the North Central Association of
Colleges and Schools. I continue to be troubled by what the
Inspector General found in its review.
The IG's report raised serious concerns about the HLC's
accrediting practices and the evaluation of Title IV
institutions. Specifically the report highlighted the case of
American Intercontinental University, an institution which HLC
approved for accreditation on May 14, 2009, despite finding
that AIU had assigned about double the amount of credit hours
in certain undergraduate and graduate programs.
To avoid having institutions overstate credit hours or
inflate the federal student aid paid for students attending
those programs we must have consistent measures for credit
hours.
The regulation being discussed today sets some minimum
standard for the work needed to equal a credit hour for the
purposes of federal student aid programs. The rule defines a
credit hour as ``one hour of classroom instruction and 2 hours
of homework each week for approximately 15 weeks per semester
or 10 to 12 weeks for one-quarter hour of credit. Or, an
equivalent amount of work.''
The regulation also requires accrediting agencies to review
an institution's procedures and policies setting credit hours
and determine whether such policies and procedures meet the
regulatory standard.
I would also like to underscore that the credit hour
definition creates some flexibilities for institutions in
determining the appropriate number of credit hours for student
course work.
The credit hour definition is a minimum standard that does
not restrict an institution from setting a higher standard that
requires more student work per credit hour. The definition does
not dictate particular amounts of classroom time versus out of
class student work. And the institution may take into
consideration alternative delivery methods; measurements of
student work, academic calendars, disciplines and degree
levels.
In addition, an institution may use separate measures of
credit hours for the federal student aid programs and for its
own academic purposes or other institutional needs.
In regard to state authorization, the Higher Education Act
of 1965 has always required an institution to be legally
authorized to offer a program of education beyond secondary
education by the state in which it is located. Under that rule
a state must have a process to review and act on complaints
concerning that institution, including enforcing applicable
state laws.
The regulation also provides students, prospective students
and families the ability to identify which institutions are
legally authorized to offer post-secondary education in a
state.
An institution offering distance education to students
located in states other than the one in which the institution
is located for example, must meet the authorization
requirements of those states.
Finally, religious institutions exempted from state
authorization requirements under state law are exempt from this
regulation.
In closing, I believe that we as members of this committee
must address these issues and protect the interest of students
and taxpayers.
As ranking member for this subcommittee, I intend to be
fully engaged in these discussions and will work with the
Secretary and my colleagues in both the House and the Senate to
ensure that these regulations are implemented.
With that, Madam Chair, I yield.
[The statement of Mr. Hinojosa follows:]
Prepared Statement of Hon. Ruben Hinojosa, Ranking Member, Subcommittee
on Higher Education and Workforce Training
Thank you Chairwoman Foxx.
Today, our discussion will focus on two vitally important
regulations: the definition of a credit hour and the criteria the
Secretary uses to determine that institutions are authorized to provide
postsecondary education in their states.
In my view, these regulations are greatly needed to strengthen the
accountability and review of institutions of higher education that
participate in the Federal Student Aid programs. Every year, the
federal government spends billions of dollars on student financial aid.
It is imperative that Congress and the Department of Education provide
strong oversight for these federal student aid dollars.
On May 24, 2010, the Office of the Inspector General (IG) issued a
review of the Higher Learning Commission (HLC) of the North Central
Association of Colleges and Schools. I continue to be troubled by what
the Inspector General found in its review.
The IG's report raised serious concerns about the HLC's accrediting
practices and evaluation of Title IV institutions. Specifically, the
report highlighted the case of American Intercontinental
University(AIU), an institution which HLC approved for accreditation on
May 14, 2009 despite finding that AIU had assigned about double the
amount of credit hours to courses in certain undergraduate and graduate
programs.
To avoid having institutions overstate credit hours or inflate the
federal student aid paid for students attending those programs, we must
have consistent measures for credit hours.
The regulation being discussed today sets a minimum standard for
the work needed to equal a credit hour for the purposes of Federal
Student Aid Programs.
The rule defines a credit hour as one hour of classroom instruction
and two hours of homework each week for approximately 15 weeks for a
semester or 10-12 weeks for one quarter hour of credit, or an
equivalent amount of work. The regulation also requires accrediting
agencies to review an institution's procedures and policies setting
credit hours and determine whether such policies and procedures meet
the regulatory standard.
I would also like to underscore that the credit hour definition
creates some flexibilities for institutions in determining the
appropriate amount of credit hours for student coursework.
The credit hour definition is a minimum standard that does not
restrict an institution from setting a higher standard that requires
more student work per credit hour.
The definition does not dictate particular amounts of classroom
time versus out-of-class student work, and the institution may take
into consideration alternative delivery methods, measurements of
student work, academic calendars, disciplines, and degree levels.
In addition, an institution may use separate measures of credit
hours for the federal student aid programs and for its own academic
purposes or other institutional needs.
In regard to state authorization, the Higher Education Act of 1965
has always required an institution to be legally authorized to offer a
program of education beyond secondary education by the State in which
it is located.
Under the rule, a State must have a process to review and act on
complaints concerning the institution, including enforcing applicable
State laws. The regulation also provides students, prospective
students, and families the ability to identify which institutions are
legally authorized to offer postsecondary education in a State.
An Institution offering distance education to students located in
States other than the one in which the institution is located, for
example, must meet the authorization requirements of those States.
Finally, religious institutions exempted from State authorization
requirements under State law are exempt from this regulation.
In closing, I believe that we as the members of this committee must
address these issues and protect the interests of students and
taxpayers. As Ranking Member for this subcommittee, I intend to be
fully engaged in these discussions and will work with the Secretary and
my colleagues in both the House and the Senate to ensure that these
regulations are implemented.
Questions for the Panelists:
I would like to welcome our distinguished guests and say that I am
pleased to see that Kathleen Tighe, the Inspector General, is here
today.
1. Question for Inspector General Kathleen Tighe (T-i-e), U.S.
Department of Education:
Ms. Tighe, in your testimony, you indicate that the explosion of
on-line education in recent years has made it even more difficult to
assign credit hours and assess student achievement.
What are national and regional accrediting agencies doing to ensure
that on-line educational programs provide quality, content, and
academic rigor at the postsecondary level?
2. Question for Inspector General Kathleen Tighe:
Ms. Tighe, in your testimony, you indicate that the definition of a
credit hour protects students and taxpayers from inflated credit hours,
the improper designation of full-time student status, the over-awarding
of Federal Student aid funds, and excessive borrowing by students
especially with distance, accelerated, and other programs not delivered
through traditional classroom format.
What type of impact do you believe this regulation will have on
regional and national accrediting agencies?
What can regional and national accrediting agencies do to improve
their accreditation practices to ensure that students and taxpayers
receive what they are paying for?
3. Question for Ralph A. Wolff, President of the Accrediting
Commission for Senior Colleges and Universities of the Western
Association of Schools and Colleges (WASC):
Mr. Wolff, absent a definition of a credit hour, what do your
accreditation teams evaluate on campus to assess institutional
assignment of credit hours?
______
Chairwoman Foxx. Thank you very much Mr. Hinojosa. Pursuant
to Committee Rule 7 C, all subcommittee members will be
permitted to submit written statements to be included in the
permanent hearing record.
And without objection, the hearing record will remain open
for 14 days, to allow statements, questions for the record and
other extraneous material referenced during the hearing, to be
submitted in the official hearing record.
It is now my pleasure to introduce our distinguished panel
of witnesses; Mr. John Ebersole serves as the President of
Excelsior College and has over 40 years of education
experience. Prior to his current appointment Mr. Ebersole has
held positions responsible for extended and online education at
Boston University; Colorado State University; The University of
California, Berkley and; John F. Kennedy University.
Mr. Ebersole is also the current chair of the American
Council on Education's Commission on Lifelong Learning.
Dr. G. Blair Dowden has served as President of Huntington
University since 1991. He has previously served as board chair
of the Council for Christian Colleges and Universities; chair
of the Council of Presidents of the National Association of
Intercollegiate Athletics and is chair of the Indiana
Conference for Higher Education. In addition to his impressive
career, he is a frequent speaker on topics related to
leadership, philanthropy, and Christian Faith.
The Honorable Kathleen Tighe was sworn in as the Inspector
General for the Department of Education on March 17, 2010.
Prior to this she served as the Deputy Inspector General at the
U.S. Department of Agriculture and as counsel to the Inspector
General Services Administration.
Ms. Tighe is a member of the public contract section of the
American Bar Association and is a former chair of the Council
of Councils to the Inspector General. That is almost a tongue
twister.
Mr. Ralph Wolff has been at the Senior College Commission
of the Western Association of Schools and Colleges, WASC, for
30 years and was appointed president in 1996. In that capacity
he has led WASC to the forefront of accreditation as an agent
of public accountability and innovation.
At the national level he has been appointed to represent
regional accreditation in negotiated rule making sessions held
by the Department of Education in 2006, 2008, and 2010. Did
they give you combat pay for that?
Before I recognize each of you to provide your testimony
let me briefly explain our lighting system. You will each have
5 minutes to present your testimony. When you begin the light
in front of you will turn green.
When 1 minute is left the light will turn yellow and when
your time has expired the light will turn red. At which point I
would ask that you wrap up your remarks as best you are able.
After everyone has testified members will each have 5
minutes to ask questions of the panel. And I will tell you that
they have announced that we will probably have votes around 12
to 12:30 and I said earlier it is something to see when
everyone is trying to vote and get out on a Friday afternoon.
So I am hoping that we can move things along and not have
an unseemingly exodus from the room. So I want to thank you all
again for taking the time to testify before the committee
today.
I want to ask Mr. Hinojosa if he has any other comments he
would like to make.
Mr. Hinojosa. Not at this time.
Chairwoman Foxx. Thank you.
Now, I would like Mr. Ebersole if he would begin.
STATEMENT OF JOHN EBERSOLE, PRESIDENT,
EXCELSIOR COLLEGE
Mr. Ebersole. I am John Ebersole, President of Excelsior
College. I would like to thank you Chairwoman Virginia Fox and
also Ranking Member Ruben Hinojosa and members of the
Subcommittee on Higher Education and Workforce Training, for
the opportunity to testify on these unnecessary regulations.
Founded by the State of New York's Board of Regents as
Regents College in 1971 and chartered as a private not for
profit institution in 1998, the college was renamed Excelsior
College in 2001. We are based in Albany, New York, accredited
by the Middle States Commission on Higher Education and we are
a recognized leader in removing obstacles to the educational
goals of adult learners.
We provide efficient, affordable access to higher education
through multiple avenues of degree completion. Excelsior
provides distance learning opportunities to adult learners with
an emphasis on those historically underrepresented in higher
education.
I should say that 30 percent of our students of which there
are 30,000, represent themselves as being minorities. We also
have about 10,000 Iraq duty military.
The college meets students where they are academically and
geographically, offering quality instruction in the assessment
of prior learning. We share the stated goals of this
administration and the previous administration to increase
degree completion over the next 10 years. We understand that is
necessary to maintain our economy and to be competitive in a
global market.
I believe that online institutions have the capacity to
deliver that access to students who would not receive a quality
education under other circumstances. This is a time when the
traditional brick and mortar public institutions are cutting
enrollment, reducing access and increasing costs.
In the 2010 Sloan Survey of Online Learning, we found that
online enrollments have risen by almost 1 million students from
a year ago. That report also found that three-quarters of
institutions report the economic downturn has increased demand
for online courses and programs. Nearly 30 percent of those in
higher education, of which estimate at 19 million today, now
take at least one course online.
The 21 percent growth rate for online enrollments far
exceeds the 2 percent growth rate in the overall higher
education population. Seventy-nine percent of college
presidents agreed that launching and expanding online education
courses and programs provides a way for their institutions to
serve more learners. A recent survey done by Inside Higher
Education found that three-quarters of presidents have plans to
enter the online market as a part of their future strategy.
In regard to state authorization, every institution is
authorized to operate in its home state. In the case of
Excelsior, we are chartered by the New York State Board of
Regents, which I believe is the only state agency which is
recognized by the U.S. Department of Education as an
accrediting agency in its own right.
We also hold Middle States accreditation and the new
federal regulations would require Excelsior to not only have
that accreditation that we document that we are authorized to
operate in 54 jurisdictions recognized by the United States
Department of Education.
Under Title 4, the new regulations require all colleges to
comply with individual state regulations to distance learning
if they have enrolled 1 or more students receiving student
financial aid.
Failure of an institution to comply with these state
authorization rules may result in institutional penalties
ranging from a return of all federal financial aid distributed
while out of compliance, up to removal of the institution's
authorization to participate in Title 4.
Due to a lack of, what I believe is forethought, the
proposed state authorization regulations from the Department
would create a particular roadblock for those of us in online
education at a time where I believe it is most needed.
Excelsior has led the President's Forum, a consortium of
public and private institutions with a shared mission of
serving adult students that are distance, for 7 years.
We have been trying to advance the innovative practices and
the excellence that can be a part of online learning. You
should know that even before these regulations were promulgated
we were working with the states trying to bring about greater
uniformity and standardization between the 50 states.
We continue to be at a loss as to why these regulations,
running directly contrary to the shared, stated goals of the
administration and to thousands of higher education
institutions across the country have been put forward.
As written, the regulation would unfairly target and stifle
the growth of online education options for students,
particularly of nonprofit institutions. We support the right
and responsibility of states to regulate the quality and nature
of the education being delivered within their borders, work
that we have been trying to advance.
However, the regulation on state authorization essentially
places the federal government in the role of enforcing state
statutes would force a state to create a new regulatory regime
and make an additional financial burden at a time when many
states do not have the funds, capacity or structure to comply
with this regulation. And they certainly will not have such by
July 1st of this year.
One state has already said publicly that it could not
consider applications in its state for at least a year to
determine how it will even respond. Another has stated that
upon receipt of our application it will require 6 to 9 months
of review and then be subjected to the second review if any of
the education leads to licensure within that state.
Furthermore, there is no way to guarantee that an
institution has met the Department's interpretation of any
state's regulations and no way for the institution to ensure it
would satisfy these federal interpretations if audited.
These uncertainties will stifle innovation and force
accredited, not-for-profit institutions with legitimate and
creative distance education programs to withdraw from certain
jurisdictions potentially leaving the students with the
greatest need with a few options to further their education.
Thank you.
[The statement of Mr. Ebersole follows:]
Prepared Statement of John Ebersole, President, Excelsior College
Good morning. I am John Ebersole, President of Excelsior College. I
would like to thank Chairwoman Virginia Foxx, Ranking Member Ruben
Hinojosa, and members of the Subcommittee on Higher Education and
Workforce Training for the opportunity to testify on these unnecessary
proposed regulations.
Founded by the State of New York Board of Regents as Regents
College in 1971 and chartered as a private, nonprofit institution in
1998, the College was renamed Excelsior College in 2001. Excelsior
College is based in Albany, NY and accredited by the Middle States
Commission on Higher Education. We are a recognized leader in removing
obstacles to the educational goals of the adult learner. We provide
efficient and affordable access to higher education through multiple
avenues to degree completion. Excelsior College provides distant
learning opportunities to adult learners with an emphasis on those
historically underrepresented in higher education. The College meets
students where they are--academically and geographically, offering
quality instruction and the assessment of prior learning.
We share the stated goals of this Administration and the previous
Administration to increase degree completion over the next ten years to
maintain our economy and be competitive in the global market. I believe
that online learning institutions have the capacity to deliver that
access to those students that would not receive a quality education
under any other circumstances. This is a time when the traditional
brick and mortar public institutions are cutting enrollment, reducing
access and increasing their costs. In fact, The 2010 Sloan Survey of
Online Learning reveals that online enrollment rose by almost one
million students from a year ago. The report also found that:
Three-quarters of institutions report that the economic
downturn has increased demand for online courses and programs.
Nearly thirty percent of higher education students now
take at least one course online
The 21% growth rate for online enrollments far exceeds the
2% growth in the overall higher education student population.\1\
---------------------------------------------------------------------------
\1\ Allen, I. Elaine and Jeff Seaman. Class Differences, Online
Education in the United States, 2010. Babson Survey Research Group,
2010.
---------------------------------------------------------------------------
78.1% of College Presidents agreed that launching/
expanding online education courses and programs provide a way for
institutions to serve more learners.\2\
---------------------------------------------------------------------------
\2\ Green, Kenneth C., Scott Jaschik and Doug Lederman.
Presidential Perspectives: The 2011 Inside Higher Ed Survey of College
and University Presidents. Inside Higher Ed, 2011.
---------------------------------------------------------------------------
State Authorization
Every institution is authorized to operate in its home state. In
the case of Excelsior College, we are chartered by the New York State
Board of Regents (one of the accrediting agencies recognized by the
U.S. Department of Education), and the Middle States Commission on
Higher Education. These new federal state authorization regulations
would require Excelsior College to document that it is also authorized
to operate in all 54 jurisdictions recognized by the United States
Department of Education. Federal Title IV regulations require all
colleges to comply with individual state regulations related to
distance learning in which they have enrolled one or more students
receiving federal student financial aid. Failure of an institution to
comply with these state authorization rules may result in institutional
penalties ranging from return of all federal financial aid distributed
while out of compliance up to removal of the institution's
authorization to participate in Title IV funding.
Due to a lack of forethought, the proposed State Authorization
regulation from the Department of Education would create a road block
for online education, perhaps at a time when it is needed the most.
Excelsior has led the Presidents' Forum, a consortium of public and
private institutions with a shared mission of serving adult students at
a distance, for seven years with the goal of advancing innovative
practice and excellence in online learning. We continue to be at a loss
as to why these regulations run directly contrary to the shared, stated
goals of the Administration and thousands of higher education
institutions across the country. As written, the regulation would
unfairly target and stifle the growth of online education options for
students.
We support the right and responsibility of states to regulate the
quality and nature of the education being delivered within their
borders. However, the regulation on State Authorization essentially
places the federal government into the role of enforcing state statutes
and would force a state to create a new regulatory regime and take on
additional financial burden when some states do not have the funds,
capacity or structure to comply with this regulation by July 1, 2011.
One state has already indicated that it could take a year to determine
how it will respond. Furthermore, there is no way to guarantee that an
institution has met the department's interpretation of any state's
regulations and no way for the institution to ensure it would satisfy
these federal interpretations if audited. These uncertainties would
stifle innovation and force accredited institutions with legitimate and
creative distance education programs to withdraw from certain
jurisdictions, leaving the students with the greatest need with little
option to further their education.
It is impossible to predict the future skills that our workforce
will need. In order to properly prepare our students for this ever-
changing landscape, our higher education curriculums need to be
innovative and adapt to those changes.
Impacts to Excelsior College
Excelsior represents at least one student in all 54 jurisdictions
that are recognized by the Department of Education. The federal state
authorization regulations would require Excelsior to review each
individual state's rules and regulations and to document that Excelsior
College is in compliance with those rules in each jurisdiction where it
is serving Title IV recipients. In order to be fully compliant, we
would have to either complete the authorization process within each
state or produce documentation for states where this would not be
necessary. We have estimated that the average cost for authorization is
approximately $2,500 per state. There are some states that have a fee
much lower than this number but there are also states where costs would
exceed tens of thousands of dollars. In considering these demands,
Excelsior College will have to budget $150,000-200,000 per year to
comply with these federal mandates. When those costs are multiplied by
nearly 3,000 institutions offering online education, this sector is
looking at least a half a billion dollars cost of compliance. These
additional costs to institutions will undoubtedly be passed on to
students in the form of increased tuition and fees. That will raise the
cost of learning and deter access.
Arkansas is an example of a state that is very granular in its
approval process. We are required to provide details on every program,
course, faculty member, credit determination, and projected outcomes.
For instance, in the case of our faculty members, Excelsior College was
required to provide an individual form describing the qualifications of
each faculty member teaching students in the state of Arkansas for
review. All of these disclosures take time and man power. In the case
of Arkansas, Excelsior spent in excess of 400 man hours preparing over
400 pages for submission.
As a result of these burdensome, costly and vague regulations,
students from around the country will be denied access to the high-
quality college programs as many reputable accredited institutions,
such as Excelsior, discontinue their distance learning programs or
limit them only to states with larger enrollments. As the delivery of
online courses becomes limited and problematic for legitimate colleges,
many students will turn to less reputable, locally based, non-
accredited schools for their degree. This would clearly cheapen the
education offered to those students in need.
Excelsior's student body is very diverse and we educate many
students enlisted in the military. These students and their families
are frequently transferred to different states based on their position.
Currently, they are able to continue their education and not miss class
time following a transfer. However, should this regulation take effect,
those military spouses could be transferred to a state that has not
authorized Excelsior and they would not be able to continue their
coursework.
By explicitly defining a credit hour, our education system
regresses by looking at the input rather than using a more forward
looking approach that evaluates learning outcomes. The proposed
definition of a credit hour will further block and limit innovation in
higher education. President Obama recently applauded the creation of an
accelerated learning program at Carnegie Mellon for its innovative
online courses. They have found that students can learn more quickly
with specially designed online courses. These regulations would have
killed that program. By attempting to impose a single definition, the
Department would be inserting itself in academic judgments made at the
departmental and institutional level. It is of note that Federal law
prohibits the Department from interfering in academic decisions without
explicit Congressional authorization.
Impacts to Growth of Online Education Industry
For those institutions that are examining and creating online
education programs, these regulations will give them great pause
whether to continue that development or abandon the endeavor all
together. These institutions will not want to risk their Title IV
funding based on a confusing regulatory market for online programs. As
the capacity for higher education decreases among the traditional
sources of learning, we should be promoting online programs and
services that can help those in need to further their education.
Conclusion
The resulting ambiguity and confusion over these requirements will
limit responsible innovation by institutions at the very time that the
Administration is seeking new routes to academic achievement.
It is our hope that you will ask the Department of Education to re-
evaluate the rule it has adopted and to see how the rule can be amended
to avoid the unintended consequences of the current approach.
______
Chairwoman Foxx. Thank you very much Mr. Ebersole.
Dr. Dowden?
STATEMENT OF G. BLAIR DOWDEN, PRESIDENT,
HUNTINGTON UNIVERSITY
Mr. Dowden. Good morning Chairwoman Foxx and Ranking Member
Hinojosa.
I appreciate your invitation to share my concerns about the
program integrity issue regulations. My name is Blair Dowden, I
am President of Huntington University in Huntington, Indiana,
and I have served in that capacity for the past 20 years.
I am a past board chair of the Council for Christian
Colleges and Universities and I have personally served as board
member of the National Association of Independent Colleges and
Universities.
As a president of a private college I am concerned about
the wide sweeping regulatory overreach that these regulations
signal. The American higher education system is the best in the
world largely because of its independence, innovation, and
creativity. These regulations work to undermine these
characteristics.
Certainly, colleges and universities should be held
accountable for their work and the expenditure of federal
funds, in fact earlier this year, just about a month ago
Huntington University was visited by the U.S. Department of
Education for a routine review of our Title IV programs. After
a week of review the Department representatives indicated that
we were very clean in our operation and management of our Title
IV funds. I believe that this type of oversight is appropriate.
But the increase in regulation and oversight that is
contained in some provisions of the Department's new program
integrity regulations, I think, is not warranted and will
severely burden colleges and universities.
Specifically, two parts of these regulations are most
concerning, the state authorization and credit hour provisions
which are the topics of this hearing.
The federal definition of a credited hour inserts the
federal government squarely into one of the most sacrosanct
elements of higher education. I believe that it is very
problematic for the federal government to impose a one-size-
fits-all definition of a credited hour. For instance, a
scientific laboratory class is different than practicing a
musical instrument which is different again than engaging in a
business practicum.
I strongly believe that is the colleges, universities, and
accrediting organizations, and not the government, that are
best able to assess and quantify the learning that results from
these varied experiences.
Huntington is a private liberal arts university. We are
also a Christian institution. Our Christ-centered mission is
foundational to our educational purpose and forms every
decision that we make. As president I am concerned that these
new regulations have the potential to interfere with our faith
based mission.
In particular, the state authorization component of these
regulations expands on the requirement that an institution must
be authorized by the state in order to participate in Title IV
funding. As you know, state authorization is currently required
by the Higher Education Act, so is not at all clear to me what
value would be added by these new, and I think, confusing
requirements.
These regulations clearly open the door for states to
impose requirements that go well beyond authorizing an
institution to offer postsecondary education. My concern is
that there appears to be no limits to what factors a state can
consider when granting or withholding authorization and no
mechanisms for appeal or due process.
As a president of a Christian institution, I am acutely
aware that religion and religious practices can sometimes
invoke strong reactions in people, reactions that sometimes
motivate certain political positions and actions.
The Department's new regulations delineate a very small
category of institutions that are eligible to be exempted under
state law if indeed the state should even chose to provide a
religious exemption.
This category of schools is so narrowly defined that
neither Huntington University nor any other member of the
Council of Christian Colleges and Universities would qualify
for an exemption as outlined in these new regulations.
This prospect is obviously very troubling and widely shared
as a concern by my fellow Christian college presidents. I do
not want to have our students' eligibility to receive Title IV
funding placed solely in the hands of a politically motivated
state entity.
In addition, the possibility exists that certain states may
use this new state authorization requirement as leverage to
achieve their own higher education policy agenda at the expense
of institutional missions. For instance, a state could require
a certain curriculum or text books in order to gain
authorization potentially violating both the academic
prerogatives and religious convictions of the institutions.
Let me conclude by assuring you that these concerns are not
a denial for accountability and excellence in higher education.
Nor are they out of a concern that Huntington University would
not meet quality standards. To the contrary, Huntington
University is ranked by U.S. News and World Report, among the
Midwest's top-10 regional colleges and among the region's top-5
best values. We are providing our students with an excellent
education and equipping them for the future.
Rather, I oppose these regulations because they
unnecessarily interfere with the good work that my institution
and many others are doing. And because they create the
potential for misunderstanding, misapplication, and even
mischief by politically motivated state actors.
I appreciate your time today and look forward to your
actions.
[The statement of Mr. Dowden follows:]
Prepared Statement of G. Blair Dowden, President, Huntington University
Good morning Chairwoman Foxx and Ranking Member Hinojosa: I
appreciate your invitation to share my concerns about the ``program
integrity issues'' regulations. My name is Blair Dowden, president of
Huntington University in Huntington, Indiana, and I have served in that
capacity for the last twenty years. I am a past Board chair of the
Council for Christian Colleges and Universities, and I presently serve
as a Board member of the National Association of Independent Colleges
and Universities. I want to share my concerns with you today as the
president of Huntington University--a private, accredited, four-year,
Christian liberal-arts university and an institution whose religious
character and mission is central to everything we are and everything we
do.
As a president of a private college, I am concerned about many
specific facets of these regulations, but I am also concerned generally
about the wide sweeping regulatory overreach that these regulations
signal. As private institutions of higher learning come under ever-
increasing regulatory burdens, we find fewer and fewer differences in
the level of government involvement between our institutions and our
public counterparts. The American higher education system is the best
in the world largely because of its independence, innovation and
creativity. I believe that these regulations work to undermine, rather
than strengthen, those valuable characteristics.
Specifically, there are two parts of these regulations that are
most concerning: state authorization and credit hour, the topics of
this hearing. I strongly believe that the new regulations will elevate
the level of involvement by the state and federal governments and
significantly impact one of the hallmarks and strengths of the U.S.
higher education system, institutional autonomy.
I am not endorsing the premise that institutions should not be held
accountable for their work and the expenditure of federal funds. In
fact, earlier this year, Huntington University was visited by the US
Department of Education for a routine review of our Title IV programs.
After a week of review, the Department representatives indicated that
we were a ``very clean'' operation in the management of Title IV funds.
This type of oversight is appropriate. But the dramatic increase in
regulation and oversight that is contained in some provisions of the
Department's new program integrity regulations is not warranted and
will severely burden our colleges and universities.
One specific concern is the federal definition of the credit hour
which inserts the federal government squarely into one of the most
sacrosanct elements of higher education. Because of the diversity of
institutions, programs, and methods of the delivery of academic
content, I believe that it is very problematic for the federal
government to impose one standard definition for and implementation of
a credit hour. The effort to transform the credit hour into a simple
accounting unit used for bookkeeping, shows, I believe, a fundamental
misunderstanding of the credit hour. A credit hour is not only
different from institution to institution, but is different even within
an institution from program to program. A scientific laboratory class
is different from practicing a musical instrument which is different
from engaging in a business practicum. I strongly believe that it is
colleges, universities and accrediting organizations--not the
government--that are best able to assess and quantify the learning that
results from these varied experiences.
In recent decades, there has been significant innovation in higher
education, especially for adult learners. Accelerated classes, distance
learning, and hybrid format classes have opened up doors of educational
opportunity and attainment for new groups of students. A restrictive
definition of credit hour based on seat-time alone would turn back the
clock and discourage the kind of innovation that enables colleges and
universities to serve these students. It is one thing to measure how
much time a student spends in a classroom; it is quite another to
measure how much the student learned. As Sylvia Manning, president of
the Higher Learning Commission testified to the House Committee on
Education and Labor on June 17, 2010, a narrow definition of credit
hour would not be particularly useful in measuring the learning
outcomes of adult students or alternative delivery systems. It would
deter innovation in higher education and ``require that colleges and
universities divert resources away from helping students to
demonstrating compliance with the regulation.'' Imposing a federal
definition of a credit hour would usurp the role of accrediting
organizations without effectively measuring or improving academic
rigor, program quality, or learning outcomes.
Huntington is a private liberal-arts university; we are also a
Christian institution. Our Christ-centered mission is foundational to
our educational purpose and informs every decision that we make. As
president, I am also concerned that these new regulations have
potential to interfere with our faith-based mission.
In particular, the state authorization component of these
regulations expands on the requirement that an institution must be
authorized by a State in order to participate in Title IV funding.
State authorization is currently required by the Higher Education Act,
and it is not at all clear to me what value would be added by these
new--and confusing--requirements. However, this clearly opens the door
to have states impose requirements that go well beyond authorizing an
institution to offer postsecondary education. My concern is that there
appear to be no limits to what factors a state can consider when
granting or withholding authorization, and no mechanisms for appeal or
due process.
For instance, what if an institution were denied state
authorization because of a practice stemming from its religious
mission? This would disqualify the college or university from
participation in Title IV programs. As the president of a Christian
institution, I am acutely aware that religion and religious practices
can sometimes invoke strong reactions in people, reactions that can
sometimes motivate certain political positions and actions opposing
religious practices and institutions. That is why prior higher
education legislation has contained strong religious exemptions. The
Department's new regulations, however, do not actually create a
religious exemption. Instead, they delineate a very small category of
institutions that are eligible to be exempted under state law, if the
state should choose to do so. This category of schools eligible for a
state religious exemption is so narrowly defined that Huntington
University and schools like us would not qualify. In fact, not one
member of the Council for Christian Colleges and Universities would
qualify for an exemption as outlined by the new regulations.
This prospect is very troubling and is widely shared as a concern
by my fellow Christian college presidents. I do not want to have our
students' eligibility to receive Title IV funding placed solely in the
hands of a political state entity, with no possibility of religious
exemption.
In addition, the possibility exists that certain states may use
this new state authorization leverage to achieve their own higher
education policy agenda at the expense of the mission of the
institution. For instance a state could require certain curriculum or
textbooks in order to gain authorization, violating both the academic
prerogatives and religious convictions of the institutions. This would
have the effect of putting colleges and universities in the position of
choosing between state authorization and the ability to freely engage
in their religious missions.
According to some legal analysts, my state of Indiana is one of
several states that would not be in compliance with the Department's
regulations concerning state authorization. Although Huntington
University has operated effectively for more than a century, new
legislation might be needed to establish the state authorization
required by these new regulations.
My institution was founded in 1897 and has always been recognized
by the state, and was formally authorized by statute since 1965. There
has never been a problem or question about its authorization. Although
the Department's new regulations require it, my state never saw a need
to write institutional names into the law. It is unfortunate that,
through a seemingly small requirement, the new rules open the potential
for the state to take these new requirements as an opportunity to
involve itself in areas that have not been the purview of the state
before, such as curriculum or institutional mission.
The Department's regulations require additional state regulation
and oversight, without any offsetting reduction in federal regulation
or oversight. The burden of compliance will increase, driving up costs.
The price of higher education goes up when layers of government create
well-intentioned but burdensome rules and regulations. Every dollar
spent on compliance is a dollar that is not being spent on educating a
student to succeed and contribute to society.
This scenario brings to mind past experience with the 1992
reauthorization of the Higher Education Act. The legislation required
the establishment of a State Post Secondary Review Entity, or SPRE, in
every state. While the effort was trumpeted as a way to increase
accountability in higher education, the actual result was the
multiplication of state and federal intrusions into the operations of
colleges and universities. The SPRE concept severely eroded the
independence of private colleges and universities and led to, in the
words of one commentator, ``haphazard and capricious regulatory
enforcement.''\i\ In 1994, the Department of Education notified nearly
2,000 institutions that they had failed to meet certain criteria. SPRE
was fiercely opposed by those who championed a smaller, less intrusive
federal government. Fortunately, Congress defunded the SPRE project and
ended implementation in March 1995.
---------------------------------------------------------------------------
\i\ David L. Warren ``Why Faculty Should Care about Federal
Regulation of Higher Education,'' Academe, July-August 1994: 19, cited
in Terese Rainwater, ``The Rise and Fall of SPRE: A Look at Failed
Efforts to Regulate Postsecondary Education in the 1990s,'' American
Academic, March 2006: 107.
---------------------------------------------------------------------------
Now, in 2011, it appears we are heading down the same misguided
path with the new regulations promulgated by the Department of
Education and due to be implemented in July.
Let me conclude by assuring you that my concerns are not intended
to deny the need for accountability and excellence in higher education,
or out of a concern that Huntington University would not meet quality
standards. To the contrary, Huntington University has a proven track
record with the Department of Education, with our accrediting
organization, and with third-party observers such as U.S. News & World
Report, which ranks Huntington among the Midwest's top ten regional
colleges and among the region's top five best values. Huntington
University is providing our students with an excellent education and
equipping them for the future.
Rather, I oppose these regulations because they unnecessarily
interfere with the good work that my institution and many others are
doing, because they have the likelihood of raising costs without
delivering value to students, and because they create the potential for
misunderstanding, misapplication, and even mischief by politically
motivated state actors.
I appreciate your time here today and look forward to answering
your questions.
______
STATEMENT OF KATHLEEN TIGHE, INSPECTOR GENERAL,
U.S. DEPARTMENT OF EDUCATION
Ms. Tighe. Thank you Chairwoman Foxx, Ranking Member
Hinojosa, and members of the subcommittee.
Thank you for inviting me here today to discuss the Office
of Inspector General's work involving issues impacting the
higher education community, specifically our work regarding the
definition of a credit hour.
Currently, the federal student aid programs are primarily
dependent on the credit hour for making award decisions as are
other forms of aid including state student aid programs and
certain programs administered through the U.S. Department of
Veterans Affairs and the Department of Defense.
The credit hour is the most basic unit for determining the
amount of federal student aid provided to students and funded
by taxpayers. As the credit hour is a proxy measure of a
quantity of student learning in exchange for financial
assistance, it is in the federal interest to ensure that
students are receiving an appropriate amount of funding and
instruction and that taxpayer money is being used properly.
Last year I testified before the full committee providing
an extensive view of how the need for a definition of a credit
hour evolved, and our work involving accrediting agencies.
Because the role they play is vital--accreditation is one of
the primary requirements for an institution's participation in
the federal student aid programs and determines whether
academic programs merit taxpayer's support--the Department is
dependent on accrediting agencies to ensure that institutions
provide quality content and academic rigor at the postsecondary
level as it is itself prohibited from determining the quality
of education funded by federal dollars.
All the Department can do with regard to evaluating the
quality of postsecondary education, is recognize accrediting
agencies as reliable authorities for the quality of education
funded by federal dollars.
In anticipation of the 2009-2010 higher education
negotiated rule making sessions, we updated work we had
previously done that examined accrediting agencies definitions
of program length and credit hour. Again, we found that none of
the accrediting agencies--the regional accrediting agencies we
reviewed--defined a credit hour or provided guidance on the
minimum requirements for the assignment of credit hours.
The definition of a credit hour protects students and
taxpayers from inflated credit hours, the improper designation
of full-time student status, the over awarding of federal
student aid funds, and excessive borrowing by students,
especially with distance, accelerated and other programs not
delivered through the traditional classroom format.
As the Department is prohibited from developing the minimum
criteria for an accrediting agency's standards for
accreditation or making determinations on curriculum and
educational quality, it is not unreasonable for the Department
to expect an accrediting agency to have developed its own
minimum standards.
The Department's new definition of a credit hour is based
on the current funding assumption that a full-time student is
academically engaged full time. To the extent that a full-time
student is not expected by an institution or the institution's
accrediting agency to be academically engaged on a full-time
basis, federal student aid may in fact be over awarded.
The OHE is required by the Inspector General Act to review
and make recommendations regarding proposed regulations and
statutes. In fulfilling this role we have provided the
Department with information on a credit hour for its proposed
program integrity regulations.
Based on our work we also recommended that the definition
of a credit hour include a requirement that accrediting
agencies evaluate the assignment of credit hours.
The Department's new regulations reflect our
recommendations. We will monitor the implementation of this and
all the Department's new regulations and we will do whatever we
can to ensure that the new regulations assist in protecting our
nation's students, parents, and taxpayers.
Thank you, very much.
[The statement of Ms. Tighe follows:]
Prepared Statement of Kathleen S. Tighe, Inspector General,
U.S. Department of Education
Chairwoman Foxx, Ranking Member Hinojosa, and members of the
Subcommittee: Thank you for inviting me here today to discuss the U.S.
Department of Education (Department) Office of Inspector General's
(OIG) work involving issues impacting the higher education community. I
appreciate the opportunity to share with you information on our efforts
to ensure integrity and efficiency in the Federal student aid programs
and operations. I look forward to working with this Subcommittee to
help ensure these programs meet the needs of America's students and
families.
In today's testimony, I will discuss our work involving the
definition of a credit hour--a critically important issue in the
Federal student aid programs, as the amount of Federal student aid a
student receives is based on the number of credit hours the student is
enrolled in. This issue has become even more significant as online
education has dramatically increased in recent years, making credit
hour assignment difficult, and its comparison to traditional classroom
delivery a challenge because online education generally does not
involve a scheduled time or time commitment.
Currently, the Federal student aid programs are primarily dependent
on the credit hour for making award decisions, as are other forms of
aid, including state student aid programs and certain programs
administered through the U.S. Department of Veterans Affairs and
Department of Defense. The Department of Education has stated that a
credit hour is a unit of measure that gives value to the level of
instruction, academic rigor, and time requirements for a course taken
at an educational institution. The credit hour is the most basic unit
for determining the amount of Federal student aid provided to students
and funded by taxpayers. A credit hour is a proxy measure of a quantity
of student learning in exchange for financial assistance. It is in the
Federal interest to ensure that students are receiving an appropriate
amount of funding and instruction and that taxpayer money is being used
properly.
Last year, I testified before the full Committee, providing an
extensive explanation of how the need for a definition of a credit hour
evolved and our work involving accrediting agencies and how they
approach ensuring the adequacy of the assignment of credit hours. I
have attached a copy of that testimony, which provided a history of our
work in this area, detailed our findings, and identified the need for a
clear definition of a credit hour for the purposes of awarding Federal
student aid.
As stated in that testimony, the role of accrediting agencies is
vital: accreditation is one of the primary requirements for an
institution's participation in the Federal student aid programs.
Under the Higher Education Act of 1965, as amended (HEA) and the
implementing regulations, the Department is dependent on accrediting
agencies recognized by the Secretary of Education to ensure that
institutions provide quality, content, and academic rigor at the
postsecondary level. The Higher Education Opportunity Act of 2008
included a provision that prohibits the Department from developing
minimum regulatory criteria for an accrediting agency's standards for
accreditation. The Department of Education Organization Act prohibits
the Department from making determinations on curriculum and educational
quality. Thus, the Department is prohibited from determining the
quality of education funded by Federal education dollars. All it can do
with regard to the quality of postsecondary education is recognize
accrediting agencies as reliable authorities for the quality of
education funded by Federal dollars.
One of the primary roles of the OIG is to protect Federal taxpayer
dollars funding the Department's programs and operations. Due to
changes in the higher education regulations, we became concerned that
the interests of students and taxpayers might not be protected. As a
result, in 2002-2003 we examined accrediting agencies' definitions of
program length and a credit hour. These efforts found that none of the
regional accrediting agencies reviewed defined a credit hour and none
of the regional accrediting agencies provided guidance on the minimum
requirements for the assignment of credit hours. While the national
accrediting agencies we reviewed defined a credit hour, the definitions
only included hours of instruction, not expectations for outside
academic engagement.
In anticipation of the 2009-2010 higher education negotiated
rulemaking sessions, where the definition of a credit hour was to be
discussed, OIG once again examined this issue in order to provide the
Department with facts for its work on the definition of a credit hour
and to provide information to Congress on the state of the definition
of a credit hour at regional accrediting agencies. Again, we found that
none of the regional accrediting agencies we reviewed defined a credit
hour and none of the regional accrediting agencies provided guidance on
the minimum requirements for the assignment of credit hours.
The definition of a credit hour protects students and taxpayers
from inflated credit hours, the improper designation of full-time
student status, the over-awarding of Federal student aid funds, and
excessive borrowing by students especially with distance, accelerated,
and other programs not delivered through the traditional classroom
format. As the Department is prohibited from developing minimum
criteria for an accrediting agency's standards for accreditation or
making determinations on curriculum and educational quality, it is not
unreasonable for the Department to expect an accrediting agency to have
developed its own minimum standards.
The Federal student aid programs assume that a full-time student
enrolled in 12 credit hours is engaged in full-time study. The
Department's definition of a credit hour is based on the current
funding assumption that a full-time student is academically engaged
full-time. The Department's definition is based on the common
understanding that a full-time student is expected to spend 12 hours in
class and 2 hours in outside academic engagement for each hour in
class, resulting in 36 hours of academic engagement a week--the
approximate equivalent of a full-time job. To the extent that a full-
time student is not expected by an institution or the institution's
accrediting agency to be academically engaged on a full-time basis
Federal student aid may be over-awarded.
The OIG is required by the Inspector General Act of 1978, as
amended, to review and make recommendations regarding proposed
regulations and statutes. In fulfilling this role, we provided the
Department with information on a credit hour for its proposed program
integrity regulations. Based on our work, we recommended that the
definition of a credit hour include a requirement that accrediting
agencies evaluate the assignment of credit hours to new courses and on
an ongoing basis to evaluate whether courses offered by an institution
have maintained the credit hour value assigned to them. The
Department's regulations reflect our advice and protect both students
and taxpayers by including a definition of a credit hour that seeks to
ensure equity in funding across institutions and among students based
on the level of academic engagement and to help ensure appropriate
funding based on the concept of a full-time student being academically
engaged full-time.
It is important to note, however, that even with strong
requirements concerning credit hours, it could take up to 10 years to
implement the regulation and for students and taxpayers to feel
confident that the credit hours assigned to a course are appropriate
and that value is being received. The regulation relies on the cycle of
accreditation to review an institution's compliance with the new rule,
but institutions are generally only required to be reaccredited every
10 years. As such, the Department will need to be vigilant to ensure
the effectiveness of this new regulation and determine whether further
changes are needed. We will monitor the implementation of this and all
of the Department's new regulations and will do whatever we can to
ensure that the new regulations assist in protecting our nation's
students, parents, and taxpayers.
This concludes my written statement. I am happy to answer any of
your questions.
______
Chairwoman Foxx. Mr. Wolff.
STATEMENT OF RALPH WOLFF, PRESIDENT,
WESTERN ASSOCIATION OF SCHOOLS AND COLLEGES
Mr. Wolff. Thank you.
Chairwoman Foxx, Ranking Member Hinojosa, members of the
subcommittee, my name is Ralph Wolff. I have been introduced,
the President of the Western Association of Schools and
Colleges.
I want to speak about both of these regulations because not
only did I participate in the negotiation of them and expressed
concerns there, I have been hearing from dozens of institutions
and meeting with state representatives who also are greatly
confused and concerned about them.
First, I would like to address the state authorization
regulation, expressly it was stated that this was to address a
problem that arose in California several years ago. New
legislation has been adopted so that issue has been resolved
and we do not feel there is ample justification for the final
regulation now adopted by the Department.
In addition, we have several other concerns. For the first
time the regulation establishes specific federal criteria that
all states must conform to rather than relying on the judgment
of each of the states for determining what is appropriate state
licensure.
Secondly, the impact of the regulation is unclear. During
the course of negotiations we had a legal memorandum which I
would like to submit to--for the record that found that as many
as 37 states would need to modify their licensing statutes in
one way or another. The Department has failed to provide a list
of which states would need to make what changes.
That has left states confused and as I said, states are not
quite sure what is required to come into compliance. With
respect to student complaints, there is confusion what the new
act or the new regulations, excuse me, will require states to
do.
Whether existing rules or a new process must be established
and how it will overlap with that already required and
undertaken by accrediting agencies.
You have heard already about the impact on religious and
faith based institutions and distance education programs. We
are hearing from a number of institutions, of both types,
expressing serious concern about these regulations.
Finally, there is no provision for enforcement, how this
new regulation will be enforced and how states will know they
have come into appropriate compliance. And an entire state's
financial aid is at risk if compliance is not found to be in
place.
Establishing an enforcement system would be a problem in
and of itself. In sum, this regulation fails to address a
clearly stated problem, creates significant confusion, and will
represent a major burden on states and institutions far
exceeding the problem being addressed.
Next, I would like to turn to the credit hour regulation on
which we have spent a lot of time in negotiated rule making.
Again, this does stem from the targeted review by the Inspector
General's Office that focused on one institution in one region.
As reflected in earlier comments before and in the response
to the Inspector General's report, the accreditor had already
identified the problem, had worked with the institution to
resolve it and we think that the situation was effectively
dealt with.
But for the first time a federal definition is now being
established for every course at every institution that receives
financial aid, we are talking about millions of courses.
Institutional accrediting agencies such as WASC must require
compliance with this federal definition in all of our
comprehensive reviews. We have several major concerns with
respect to this regulation.
First, we believe that the federal definition intrudes on
the work of faculty across the country and will force faculty
to fit their credit hour assignments to the federal definition
rather than what they think is most appropriate.
Secondly, it gives primary emphasis to seat time which is
an outdated model of measuring quality.
Third, there is an enormous cost to be realized in
implementing this, in real dollars, and a shift in focus from
the most important goals which are to increase completions of
degree programs and improving quality of learning.
Finally, it will expand the potential of federal intrusion
as the Department and the National Advisory Committee on the
Institutional Quality question and review the effectiveness of
accrediting review, the size of our sampling, ultimately we
believe, federalizing the entire system of credit awards.
We have done a lot to improve quality at WASC; other
regional accreditors are doing the same. We believe that we
have focused on the right issues by improving attention to
completion.
We request that, with the 70 other higher educational
organizations, supporting letters introduced by The American
Council of Education, that these two regulations be withdrawn.
If not, at least suspended for one year, until these issues may
be worked out.
[The statement of Mr. Wolff follows:]
Prepared Statement of Ralph A. Wolff, President, the Accrediting
Commission for Senior Colleges and Universities of the Western
Association of Schools and Colleges (WASC)
Chairwoman Foxx, ranking member Hinojosa, and members of the
committee, I am pleased to present testimony to you today discussing
regulations recently finalized by the U.S. Department of Education
regarding State Authorization and the Credit Hour.
My name is Ralph A. Wolff, and for the past 15 years I have served
as the President of the Accrediting Commission for Senior Colleges and
Universities of the Western Association of Schools and Colleges (WASC).
WASC is one of seven regional accrediting commissions, and is
responsible for the accreditation of institutions in California,
Hawaii, Guam and the historic Pacific Trust Territories. I also serve
as vice chair of the Council of Regional Accrediting Commissions (C-
RAC), which meets regularly to address policy issues affecting
accreditation. On behalf of C-RAC I have participated as a primary or
alternate negotiator in three negotiated rulemaking processes, most
recently in 2009--10, leading to the federal regulations being
discussed here today.
During that negotiated rulemaking process, fourteen issues were
debated, nine of which resulted in tentative agreement, including with
respect to credit hour. Among the issues where agreement was not
reached was state authorization.
However, when the final regulations were released last year, they
included significant changes to the tentative agreement related to
credit hour. Nor were our concerns with respect to state authorization
addressed.
While we have appreciated the Department's willingness to listen to
our concerns with respect to the final regulations, I along with my
regional accreditation colleagues recently joined the American Council
on Education (ACE) and more than 50 other higher education associations
in submitting a letter to the Department calling for the withdrawal of
these regulations. Together, all of these associations represent nearly
the entire higher education community. I would ask the Chairwoman that
both of these letters be submitted for the Record.
State Authorization
I will first focus on the regulation dealing with state
authorization, which for the first time establishes a specific federal
set of criteria that all states must conform to in order for
institutions within their state to be eligible for Title IV financial
aid.
The main rationale used by the Department in adopting this
regulation stems from the expiration of the California Bureau of
Private Postsecondary and Vocational Education (BPPVE) several years
ago. Ironically, the California legislature and the Governor did not
extend the legislation to continue this Bureau in operation because it
was not doing a good enough job of weeding out inadequate institutions,
and all agreed that tougher legislation was needed. In the interim
period before new legislation was passed, all state licensed
institutions were asked to maintain their same commitments to consumers
as before and there were no problems reported by any accredited
institution that called into question their financial aid from the
federal government. USDE recognized accrediting agencies, such as WASC,
maintained oversight of these institutions, and followed up on any
consumer complaints as already required by federal law. Subsequently, a
new law was passed and a new Bureau overseeing private postsecondary
education in California is now in place and working.
So, while the process may not have been as smooth as one would have
liked, there were no significant problems that occurred in California
as a result of this situation. This fact was confirmed publicly by the
Department in negotiated rulemaking; yet, the Department nonetheless
felt the need to develop a policy to address a possible set of
circumstances similar to those experienced in California to deal with
problems the might occur. Since the Department was unable to identify
any fraud or abuse that resulted from this interim period in
California, there is simply not sufficient justification for the
considerable extension of federal authority the new regulation imposes.
Beyond the lack of clear need, another major concern is that the
regulation overreaches federal authority to instruct states how to
establish their regulatory system for higher education institutions
operating within their borders. States have utilized a number of
statutory and regulatory approaches to license institutions to operate
and award degrees, and this new regulation will only complicate and
confuse these efforts. For example, the Department has never identified
those states where it has found the state licensing process for private
institutions to be a problem. Nor have they specifically identified
those states that would need to change their regulatory or statutory
arrangements to come into compliance with this regulation.
WASC commissioned our legal counsel to undertake a review of state
law using a draft of the regulation during the negotiated rulemaking
process. Our lawyers found that as many as thirty-seven states would
need to modify their licensing statutes in one way or another to comply
with these regulations. While this memo was shared with the Department,
the issues raised in it have never been addressed. Today, many states
are confused regarding what, if anything, they need to do to come into
conformity with the new regulations. At a time when so many states are
suffering significant budget reductions, many states will likely be
forced to expand their bureaucracies, increase their costs, and impose
ever more administrative requirements upon their private institutions.
And to think, this unnecessary and inappropriate extension of federal
authority is all a result of an attempt to address a problem that even
the Department admits failed to materialize when it was expected to
occur in California.
Which leads us to our current dilemma. States and institutions
alike are confused regarding what they need to do to come into
compliance with the new regulation. Institutions in California like the
University of the Pacific founded in 1851, and Mills College founded
in1852 and Stanford founded in 1891 must suddenly prove they are
licensed to exist and potentially face a new level of oversight and
review that they have not been subjected to before--despite the fact
that there have been no identified problems. In addition, some believe
this new regulation will require states to go beyond their existing
processes and establish new complaint adjudication systems for all
private institutions. This would be a significant expansion of state
authority that could result in unprecedented interference in the
internal operations of private institutions. Given that most complaints
we receive are grade disputes or personnel matters, would these issues
now become the subject of duplicative state reviews where the state is
expected to second guess the actions of private institutions?
A significant number of religious and faith-based institutions have
also expressed concerns about the broad reach of this new regulation
which limits the definition of a religious institution to only those
that award religious degrees or certificates including, but not limited
to, ``a certificate of Talmudic studies, an associate of Biblical
studies, a bachelor of religious studies, a master of divinity or a
doctor of divinity.'' This is an unprecedented narrowing of the
definition of a religious institution. Again, in many states, religious
institutions are defined much more broadly and we and other accrediting
agencies accredit religious institutions that award a range of degrees
well beyond those so narrowly defined in the regulation. These
institutions are appropriately concerned that such a narrow definition
will subject them to intrusive state monitoring of their activities and
violation of their founding religious principles.
Yet another area of great confusion and inappropriate federal
intrusiveness is related to distance education programs. Under the
regulations, institutions must: 1) meet any necessary state
requirements to offer distance education legally in the state, and 2)
upon request, document such legal authority. This puts the federal
government in a position to determine if state law is met. It also puts
institutions in an insurmountable quandary--if there is no state
regulation must the institution nonetheless demonstrate it is not
required to register with the state? Must states now issue letters
indicating that institutions don't need to be registered? Will this
lead states to enact new and likely contradictory, registration
requirements for their states? This provision already has led to
enormous confusion and uncertainty.
Finally, there is no provision for enforcement. After states have
gone to the trouble of working though these issues how will the
Department determine whether the state has done what is required to
conform to the confusing language of the regulation? There is no
process by which the Department will assure that a state has come into
compliance or that institutions have done so as well. Will an entire
state's federal financial aid now be at risk? Will an institution's
entire financial aid eligibility now be at risk if it fails to obtain
the proper letters of authorization to offer distance education in each
and every state? No one knows.
In sum, this regulation fails to address a clearly stated problem;
creates significant confusion in its implementation; and represents a
major burden on states and institutions which far exceeds the nature of
the problem being addressed.
Credit Hour
An even greater set of problems arises from the adoption of the
regulation on the credit hour. This regulation establishes, for the
first time, a federal definition of a credit hour for all courses at
all institutions receiving federal financial aid. Institutional
accrediting agencies, such as WASC, in turn, must require compliance
with this federal definition in all comprehensive institutional
reviews, and are permitted to use a sampling approach. Deficiencies are
to be corrected, and systemic problems are to be promptly reported to
the Secretary of Education. While this may appear straightforward, each
one of the elements of this regulation has already led to significant
confusion and concern.
As with the state authorization regulation, the justification used
by the Department to impose this regulation is very limited.
Specifically, this regulation stems largely from a targeted review by
the Department's Inspector General. This review found that one regional
accreditor, in the course of a site review, found an excessive award of
credit for the amount of engagement required by some courses within a
single institution. The accreditor required that the institution
address this issue, and the institution corrected the credit award, and
a follow up visit confirmed that the corrections had been made. In a
nutshell, the existing system worked, and worked within a timely
manner. Yet this example is cited as the basis for requiring every one
of the more than 5,000 institutions of higher education to justify the
credit award for each and every course offered.
The primary concern regarding credit awards is not the traditional
seat-time based classroom course--it is rather the accelerated course
formats offered over intensive days or weekends, or online courses that
may not have required interactions with faculty or other students
(asynchronous). Existing federal regulations already establish that a
change in modality will trigger a substantive change review and all
accreditors closely monitor online programs, and are already required
by the Department to review online programs and assure that all
accrediting standards are applied to them. Similarly, all off-site and
major new programs are reviewed prior to opening through the
substantive change processes that review courses and curricula to
assure that the programs are appropriately resourced and of sound
academic quality. In our site reviews, we pay special attention to all
of these types of programs. Thus, for those programs where credit
awards are most likely to present an issue, there are existing
procedures in place prior to programs being offered and as part of
ongoing accrediting reviews that assure program integrity. There is no
adequate rationale for requiring every institution to verify every
course credit assignment as required by this regulation, especially
given the close level of monitoring that accreditors already provide.
The credit hour is a cornerstone of the American academic system,
and the faculty at nearly every institution are responsible to set and
oversee credit awards for all courses, certificates and degrees awarded
in the name of the institution. This is a central role of the faculty,
and one that has been well established and has proved to be highly
effective in supporting the diversity of institutions within the
American higher education system--which continues to be the best in the
world. The application of the American credit hour system has been
sufficiently flexible within and across institutions to adapt to the
many different levels of courses across multiple disciplines, different
delivery modes, and accommodate not only classroom courses but
laboratory work, internships, online courses and programs, and other
forms of academic endeavor. To apply a federal definition to all of
these academic endeavors will intrude into the work of faculty across
the country, and force their decisions to fit the federal definition.
This makes no sense and will only lead to stifling new and innovative
approaches to delivery as institutions worry that they may not be
meeting an externally imposed definition of a credit hour.
Moreover, the definition of the credit hour in this regulation
gives primary emphasis to seat time. This returns to an outdated input
model of measuring quality when we are working with institutions to
focus increasingly on learning outcomes. All accrediting agencies have
challenged institutions to be more explicit about identifying learning
outcomes at the program and institutional levels, and reviewing the
competencies and capacities of students at the completion of their
programs. This regulation fundamentally shifts the focus to a smaller
unit of analysis. We would like to see a more forward looking approach
to addressing institutional quality than this outdated seat-time
compliance model for each and every course offered in the US.
There will be an enormous cost--in real dollars and in a shift in
focus--to implement this regulation given that the more than 5000
institutions eligible for financial aid offer millions of courses each
year. A sense of scale is useful: Stanford University and the
University of Southern California each offer close to 10,000 courses a
year in several hundred degree programs; California State University,
San Bernardino and San Francisco State University, medium sized
institutions, offer over 8500 courses each annually; the University of
California estimates they offer over 50,000 courses a year; the
California Community Colleges over 180,000. Even a small comprehensive
university like the University of San Francisco offers over 5000
courses a year. The credit hour regulation requires institutions to be
responsible to verify the ``reliability and accuracy'' of their credit
awards, meaning that they will now need to divert extensive resources
and faculty time to document course credit awards across the entire
institution. While most institutions have systems in place for
reviewing and approving new courses and programs, this regulation will
lead institutions to review and document the credit awards for all
existing courses of all types, even if offered for many years. There is
no evidence that the issue of questionable credit awards applies to
traditional course delivery formats, which comprise the majority of
courses at traditional institutions. The breadth of this regulatory
requirement, therefore, is unnecessary and will require an enormous
amount of human and financial resources to implement.
In addition, accrediting agencies are expected to evaluate the
reliability and accuracy of institutional credit assignments, which
means that a whole new dimension is added to the institutional
accreditation review process. How will the ``reliability and accuracy''
of course assignments be determined without looking in detail at a
significant sample of course syllabi and student assignments across a
wide range of disciplines, levels and formats? While this surely can be
done, is it the best focus to give to institutional reviews or quality
and integrity? We think not. In undertaking these evaluations, the
regulation permits a ``sampling'' approach. While this may sound
simple, given the enormous number of courses offered each year by
institutions, how large or broad must the sample be? No sample size is
identified, but assume that a sample size of 10% of courses was
undertaken for small to medium sized institutions, and even 5% for
large institutions. Would this be considered enough? If one were to
assume that it took a single evaluator up to 10-20 minutes per course
to review a sample syllabus and the credit assignment for a medium
sized institution offering 5,500 courses, as does the University of San
Francisco, this would require up to 180 hours for just this one
institution, or the equivalent of a single person working full-time for
3--4.5 weeks on this task alone. For larger institutions, it is very
likely that the amount of time would be even greater. The result is an
incredible diversion of time and resources for both institutions and
accrediting agencies to define and implement sampling methods.
As president of an accrediting agency I am also concerned that
regardless of how we, along with our institutions, decide to implement
this regulation, we will still be subject to being overturned by the
staff of the Department or of the National Advisory Committee for
Institutional Quality and Integrity (NACIQI) when our agencies come up
for recognition review. We could foresee such determinations as our
reviews not being ``effective,'' as required in the regulation, through
such identified issues as the sample size being found not large enough,
or the scope of review, even at institutions with no history of
problems, found not broad enough. Or being told that the evidence of
``reliability and accuracy'' of credit awards, as determined by the
institution, is not sufficiently scientific. In other words, it is
possible that Departmental review of institutions and accrediting
agencies will delve into actual institutional policies on credit
awards, or course credit assignments, or the accrediting agency's
review methodology--ultimately federalizing the entire system of credit
awards.
Additional steps underway
As an institutional accreditor serving the public as well as over
160 institutions with more than a million students, we take our
responsibilities to assure institutional quality and integrity
seriously. We believe that both of these regulations are moving higher
education in the wrong direction. I would urge that instead our
attention be directed toward 1) increasing completion rates of all
students; 2) assuring that the outcomes of degrees and certificates are
of high quality; and 3) that high quality innovation be supported.
At WASC, for the past several years, we have been requiring that a
review and evaluation of retention and graduation data be a central
part of each comprehensive institutional review, and are working to go
beyond this to benchmark, within each institution's context, an
appropriate graduation rate for key groups. Second, we are exploring
the use of a common framework for the associate and bachelor's degree
that focuses institutions on essential outcomes for these degrees.
Third, we are working with institutions to improve methods of assessing
student learning, share best practices, and establish external
benchmarks that will be useful for assuring high quality. In addition,
we are exploring increasing the transparency of the accrediting process
through expanded public information provided by the institution and by
WASC at the end of the accreditation review cycle.
These steps are forward looking and the two regulations I have
addressed today move us away from these goals. They impose unnecessary
and extensive burdens on institutions, states and accreditors at a time
when every dollar counts, and when the focus needs to be on focusing
energies where there are real problems, and relying on using more
effectively the existing systems already in place.
Conclusion
In conclusion, these two regulations need to be withdrawn. At a
minimum, since they require institutions, accreditors and states to be
in compliance by July 1, 2011, there should be a one year extension to
allow further discussion and resolution of these issues.
Thank you for this opportunity to provide these comments.
______
Mr. Wolff. And I would like to submit both of those letters
into the record.
[The information follows; a Feb. 16, 2011, letter is on
page 77:]
TO: Ralph Wolff, Barbara Beno
FROM: Laurence W. Kessenick, Daniel I. Zacharia
DATE: June 30, 2010
RE: State by State Analysis (34 C.F.R. Sec. 600.9)
This memorandum is our response to your request that we evaluate
the impact on the State licensure schemes of the 50 States of a
regulation, proposed by the U.S. Department of Education (``DOE ''),
identified as 34 C.F.R. Sec. 600.9 in the Federal Register, dated June
18, 2010 (the ``Proposed Regulation '').
Existing federal law requires that, as a condition for eligibility
for Title IV funding, private postsecondary institutions are legally
authorized to operate within the States in which they are issuing
degrees. Under the Proposed Regulation, an institution will not be
considered legally authorized unless all of the following four
conditions exist: (1) the State in which the institution operates has a
method of formally approving of the institution, whether by charter,
license or other document issued by an appropriate State agency or
entity; \1\ (2) the authorization is specifically for programs beyond
secondary education; \2\ (3) the authorization is subject to adverse
action by the State; \3\ and (4) the State reviews and acts on
complaints concerning an institution and enforces applicable State
laws.\4\ In order to study the potential impact of the Proposed
Regulation on the educational statutory schemes of the 50 States, we
attempted to measure each state's licensure scheme against the above
four conditions. To that end, we asked four questions:
---------------------------------------------------------------------------
\1\ Subsection (a)(1) of the Proposed Regulation.
\2\ Subsection (b)(1) of the Proposed Regulation.
\3\ Subsection (b)(2) of the Proposed Regulation.
\4\ Subsection (b)(3) of the Proposed Regulation.
---------------------------------------------------------------------------
(1) Does the State have a system of laws that grant private
postsecondary degree granting institutions approval or authority to
operate in the State?
(2) Is the approval or authority to operate granted by the State
specifically for programs beyond secondary education?
(3) Is the approval or authority to operate granted by the State
subject to adverse action by the State?
(4) Does the State have a process to review and appropriately act
on complaints concerning an institution and enforce applicable State
laws?
We evaluated each State's laws under the premise that the laws
would not comply with the Proposed Regulation if the answer to any of
the four above questions is ``no'' with respect to a particular State's
laws. If this is the case, the noncompliant State will either have to
amend its existing laws, or adopt new laws, to bring itself into
compliance with the Proposed Regulation. Otherwise, private
postsecondary schools operating within those States face the prospect
of losing their Title IV eligibility. In this regard, there is a large
degree of ambiguity in the meaning and application of the terms of the
Proposed Regulation. It is uncertain, for example, whether a State can
rely on existing federal laws that relate to the accreditation of
institutions receiving Title IV funds in fulfilling its ``adverse
action'' responsibilities under condition (3), above. It is also
uncertain whether State enforcement of laws unrelated to institutional
licensure, such as common law fraud or false advertising laws, for
example, could be used to meet condition (4), above. Accordingly, in
many instances our evaluation could not determine with any certainty
whether the laws will comply with the Proposed Regulation or not. In
addition, please keep in mind that memo's conclusions with respect to
each State were limited by time constraints, and that it is possible
that State statutory or regulatory schemes beyond those identified
below may impact the determination of the State's compliance with the
Proposed Regulation. We do not practice law in 49 of the 50 states we
evaluated. Therefore we cannot presume to be experts with respect to
these States. It is quite possible that we missed relevant laws simply
because we are not familiar with each States' overall statutory
schemes.
The results of the State-by-State analysis are as follows:
the laws of twelve (12) States will, in our opinion,
comply with the Proposed Regulation;
the laws of six (6) States will, in our opinion, clearly
not comply with the Proposed Regulation;
the laws of thirty two (32) States will probably not
comply with the Proposed Regulation (i.e., it is doubtful that the laws
of these States will comply with one or more of the four criteria).
Based on these results, it is likely that a total of thirty eight
(38) States will have to amend, repeal or otherwise modify their laws
to comply with the Proposed Regulation. We provide the complete
analysis, in alphabetical order, below:
1. Alabama. It is doubtful that Alabama law will comply with the
Proposed Regulation. Although Alabama has a state licensure scheme,
Alabama exempts schools from licensure on the basis of age or
accreditation. Moreover, the law provides that such exemption ``shall
not be construed to constitute approval or endorsement by the State of
Alabama for any purpose.'' (See Code of Ala. Sec. 16-46-3. Contrast
this with States that have exemptions from licensure schemes, but grant
express approval on the grounds of such exemption, such as California's
Education Code Sec. 94890.) Current law probably does not meet
criteria 1, 2, and 4.
2. Alaska. Alaska law should comply with the Proposed Regulation.
It has a state licensure scheme, which includes adverse actions, review
of complaints and enforcement. The exemption for accredited schools is
discretionary. (See Alaska Stat. Sec. 14-48-010.) Current law probably
meets all four criteria.
3. Arizona. Arizona law should comply with the Proposed Regulation.
The current law requires that an institution must be licensed by the
State. The State Board for Private Postsecondary Education has adequate
review and enforcement capability. (See A.R.S. Sec. 32-3001 et seq.)
Current law probably meets all four criteria.
4. Arkansas. Arkansas law will comply with the Proposed Regulation.
Through the Arkansas Higher Education Coordinating Board, the State has
an adequate system for authorization, review and enforcement. (See
A.C.A. Sec. 6-61-301 et seq.) Current law meets all four criteria.
5. California. It is doubtful that California law will comply with
the Proposed Regulation. Although California recently enacted the
California Private Postsecondary Education Act of 2009 (Cal. Ed. Code
Sec. 94800 et seq.), and implementing regulations (5 C.C.R. Sec.
70000 et seq.), it is unclear whether California would be deemed to
have sufficient authority over WASC accredited institutions, which are
exempt. Current probably meets criteria 1, 2, and 3, but probably not
criterion 4.
6. Colorado. It is doubtful that Colorado law will comply with the
Proposed Regulation. Colorado has a state licensing scheme that
requires state authorization and contains review standards that
possibly comply with the Proposed Regulation; however, the scheme
includes an exemption for accredited institutions. (See C.R.S. Sec.
23-2-103.3.) Current law probably does not meet criteria 1, 2, and 4
with respect to exempt institutions.
7. Connecticut. It is doubtful that Connecticut law will comply
with the Proposed Regulation. The State licenses and accredits private
postsecondary institutions, and monitors them for compliance with its
licensing laws, although there is a State exemption for programs
accredited before 1965. (See Conn. Gen. Stat. Sec. 10a-34.) With
respect to exempt institutions, current law probably does not meet
criteria 1, 2, and 4.
8. Delaware. It is doubtful that Delaware law will comply with the
Proposed Regulation. Although there is a state licensure scheme, the
State exempts accredited institutions and relies on accrediting
agencies to conduct state authorization review. (See C.D.R. Sec. 14-
200.) Current law probably does not meet criteria 1, 2, and 4.
9. Florida. Florida law will probably comply with the Proposed
Regulation. There is a State licensure scheme, but the State exempts
institutions that are granted licenses based on accreditation. However,
exempt accredited institutions must still comply with the standards of
fair consumer practices established by the State, and the State has the
discretion to limit or revoke the exemption (See Fla. Stat. Sec.
1005.32.). Current law probably meets all four criteria.
10. Georgia. It is doubtful that Georgia law will comply with the
Proposed Regulation. Although there is a state licensure scheme, and
Georgia's State authorization review standards arguably comply with the
requirements of the Proposed Regulation, the State law currently
exempts institutions on the basis of accreditation, age and non profit
status. (See O.C.G.A. Sec. 20-3-250.3.) With respect to exempt
institutions, current law will probably not meet criteria 1, 2 and 4.
11. Hawaii. Hawaii law will not comply with the Proposed
Regulation. Hawaii does not have a traditional licensure scheme.
Institutions accredited by an agency recognized by the U.S. DOE are
exempt from regulation by the State (H.R.S. Sec. 446E-1.6);
unaccredited institutions must simply comply with a short list of
disclosures mandated by the State that fall short of complying with the
State authorization review component of the Proposed Regulation (H.R.S.
Sec. 446E-2). Current law would not meet any of the four criteria.
12. Idaho. It is doubtful that Idaho law will comply with the
Proposed Regulation. The State laws provide for the licensing and
review of institutions, and enforcement of State laws, but exempt
nonprofit institutions. (See Idaho Code Sec. 33-2402, and implementing
regulations, IDAPA 08.01.11.001.) With respect to exempt institutions,
current law will probably not meet criteria 1, 2, and 4.
13. Illinois. It is doubtful that Illinois law will comply with the
Proposed Regulation. Under the Private College Act (110 ILCS Sec.
1005/0.01) and the Academic Degree Act (110 ILCS Sec. 1010/0.01),
Illinois licenses and reviews institutions. However, the Private
Business and Vocational Schools Act exempts certain postsecondary
vocational schools that would be subject to the Proposed Regulation
(See 105 ILCS 425/1.1). With respect to exempt institutions, current
law will probably not meet criteria 2, 3, and 4.
14. Indiana. Indiana law will not comply with the Proposed
Regulation. Indiana has no state licensure scheme in place for private
postsecondary institutions with regional accreditation, nor any laws
that address the state's responsibility to conduct state authorization
review. Indiana would have to enact comprehensive legislation to comply
with the Proposed Regulation. Current law does not comply with any of
the four criteria.
15. Iowa. It is doubtful that Iowa law will comply with the
Proposed Regulation. Although Iowa has a registration system for
private postsecondary institutions, there is an exemption for
accredited institutions, and Iowa does not have standards for state
authorization review. (See Iowa Code Sec. Sec. 261B.3A, 261B.11.) With
respect to exempt institutions, current law probably will not meet
criteria 1, 2, and 4.
16. Kansas. It is doubtful that Kansas law will comply with the
Proposed Regulation. The State requires State approval for all private
postsecondary institutions, without exception, and has the ability to
suspend that approval. However, regulations for State review do not
apply to accredited institutions. (See K.S.A. Sec. 74-32,162, and see
K.A.R. Sec. 88-28-4.) Current law probably meets criteria 1, 2, and 3,
but, with respect to accredited institutions, may not meet criterion 4.
17. Kentucky. It is doubtful that Kentucky law will comply with the
Proposed Regulation. Although Kentucky has a state licensure scheme,
and system for State review, the State may exempt of schools from
licensure on the basis of accreditation. (13 KAR Sec. 1:020.) Current
law may not meet criteria 1, 2 and 4 with respect to exempt
institutions.
18. Louisiana. It is doubtful that Louisiana law will comply with
the Proposed Regulation. The current law requires that an institution
must be licensed by the State; but the State expressly allows
accrediting agencies to conduct statute authorization review
activities. (See LAC 28:IX.Chapters 1-5, 32 LR 386.) Current law
probably meets criteria 1, 2 and 3, but not criteria 4.
19. Maine. Maine law will probably comply with the Proposed
Regulation. Maine has a state licensure scheme, and although it exempts
certain schools from licensure, the State reserves the right to review
institutions for exemption status on a case by case basis. (See 20-A
M.R.S. Sec. 10708; and see C.M.R. Sec. 05-071-149.) Current probably
meets all four criteria.
20. Maryland. Maryland law will comply with the Proposed
Regulation. The State has an approval process for private postsecondary
institutions, which is subject to State review and action. (See COMAR
13B.02.03, and 13B.02.02.08.) Current law meets all four criteria.
21. Massachusetts. Massachusetts law will comply with the Proposed
Regulation. The State Board of Higher Education fulfills all of the
duties required. (See 610 CMR 2.01 et seq.) Current law meets all four
criteria.
22. Michigan. Michigan law will not comply with the Proposed
Regulation. We could not locate a State system of licensing and review
for private postsecondary educational institutions. Current law does
not appear to meet any of the four criteria.
23. Minnesota. Minnesota law will comply with the Proposed
Regulation. (See Minn. Stat. Sec. 136A.61 et seq.) Current law meets
all four criteria.
24. Mississippi. It is doubtful that Mississippi law will comply
with the Proposed Regulation. Although there is a state licensure
scheme, the State exempts institutions that are accredited by S.A.C.S.
from its licensing process and standards. (See Miss. Code Ann. Sec.
37-101-241.) With respect to exempt institutions, current law probably
will not meet criteria 1, 2, and 4.
25. Missouri. Missouri law will not comply with the Proposed
Regulation. We could not locate a State system of licensing and review
for private postsecondary educational institutions. Current law does
not appear to meet any of the four criteria.
26. Montana. Montana law will not comply with the Proposed
Regulation. The State's private postsecondary licensure scheme was
repealed and Montana does not regulate private postsecondary degree
granting institutions. (See former Mont. Code Anno., Sec. 20-30-101.)
Current law does not meet any of the four criteria.
27. Nebraska. Nebraska law will not comply with the Proposed
Regulation. The State only requires approval for private postsecondary
institutions created after September 1, 1999. (See R.R.S. Neb. Sec.
85-1105.) Current law does not meet any of the four criteria.
28. Nevada. It is doubtful that Nevada law will comply with the
Proposed Regulation. The State requires licensure for all private
postsecondary degree granting institutions operating in Nevada;
however, the State accepts accreditation in lieu of compliance with its
minimum standards, including those pertaining to consumer protection.
(See Nev. Rev. Stat. Ann. Sec. 394.415, and Sec. 394.447.) Current
law meets criteria 1, 2, and 3, but will probably not meet criterion 4
with respect to accredited institutions.
29. New Hampshire. It is doubtful that New Hampshire law will
comply with the Proposed Regulation. The State has a system of
approving institutions, but may accept accreditation by a U.S. DOE
recognized institutional accrediting agency in lieu of State review.
(See N.H. Admin. Rules, Pos 1001.05) With respect to accredited
institutions, current law probably meets criteria 1, 2 and 3, but may
not meet criterion 4.
30. New Jersey. New Jersey law will comply with the Proposed
Regulation. The State has a comprehensive system of licensure, review
and enforcement. (See N.J. Stat. Sec. 18A:3B-1.) Current law meets all
four criteria.
31. New Mexico. It is doubtful that New Mexico law will comply with
the Proposed Regulation. New Mexico exempts from state licensure and
state authorization review all private postsecondary institutions
accredited by a regional accrediting agency recognized by the U.S. DOE.
(N.M. Stat. Ann. Sec. 21-23-4.) With respect to exempt institutions,
current probably does not meet criteria 1, 2, and 4.
32. New York. New York law should comply with the Proposed
Regulation. (See N.Y. C.L.S. Educ. Sec. 224.) Current law meets all
four criteria.
33. North Carolina. It is doubtful that North Carolina law will
comply with the Proposed Regulation. Although North Carolina licenses
and reviews private postsecondary institutions, it exempts from
licensure and state authorization review all institutions that have
continuously conducted post-secondary degree activity in the State
since July 1, 1972. (See N.C. Gen. Stat. Sec. 116-15.) With respect to
exempt institutions, current law may not meet criteria 1, 2 and 4.
34. North Dakota. It is doubtful that North Dakota law will comply
with the Proposed Regulation. Although North Dakota licenses and
reviews private postsecondary institutions for compliance with its
consumer protection laws, it exempts all private four-year institutions
chartered or incorporated and operating in the state prior to July 1,
1977, so long as the institutions retain accreditation by national or
regional accrediting agencies recognized by the U. S. DOE. (See N.D.
Cent. Code, Sec. 15-20.4-02.) With respect to exempt institutions,
current law will probably not meet criteria 1, 2 and 4.
35. Ohio. Ohio law will probably comply with the Proposed
Regulation. Private postsecondary institutions are subject to a
comprehensive State licensure, review and enforcement scheme. (See ORC
Ann. 1713.01 et seq.). Current law probably meets all four criteria.
36. Oklahoma. It is doubtful that Oklahoma law will comply with the
Proposed Regulation. Oklahoma exempts from state authorization all
degrees offered by a private postsecondary institution accredited by an
accrediting agency recognized by the U.S. DOE. (70 Okl. St. Sec.
4104.) With respect to exempt institutions, current law may not meet
criteria 1, 2 and 4.
37. Oregon. It is doubtful that Oregon law will comply with the
Proposed Regulation. Oregon exempts from state authorization degrees
offered by nonprofit postsecondary institutions. (ORS Sec. 348.604.)
With respect to exempt nonprofit institutions, current law probably
will not meet criteria 1, 2 and 4.
38. Pennsylvania. It is doubtful that Pennsylvania law will comply
with the Proposed Regulation. The State certifies and reviews private
postsecondary institutions, but exempts institutions incorporated on or
before September 1, 1937. (24 Pa.C.S. Sec. 6503.) With respect to
exempt institutions, current law may not meet criteria 1, 2 and 4.
39. Rhode Island. It is doubtful that Rhode Island law will comply
with the Proposed Regulation. Rhode Island requires State approval and
review, but exempts certain institutions. (See R.I. Gen. Laws Sec. 16-
40-1Sec. et seq., and 16-59-1 et seq.) With respect to exempt
institutions, current law may not meet criteria 1, 2 and 4.
40. South Carolina. It is doubtful that South Carolina law will
comply with the Proposed Regulation. South Carolina licenses private
postsecondary institutions, but exempts those domiciled within the
State and accredited by S.A.C.S. (See S.C. Code Ann. Sec. 59-58-30.)
With respect to exempt institutions, current probably will not meet
criteria 1, 2 and 4.
41. South Dakota. It is doubtful that South Dakota law will comply
with the Proposed Regulation. South Dakota has a State approval and
accreditation process for most nonpublic postsecondary institutions;
however, South Dakota allows accreditation by an ``external third-party
accreditation agency'' as an alternative means of approval for
nonpublic schools. (See ARSD 24:43:04:01; and ARSD 24:43:04:03.)
Current law probably will not meet criteria 1, 2, and 4.
42. Tennessee. It is doubtful that Tennessee law will comply with
the Proposed Regulation. Tennessee licenses and reviews institutions,
but exempts institutions that are located and domiciled in Tennessee
for at least ten (10) consecutive years and accredited by S.A.C.S. (See
Tenn. Code Ann. Sec. 49-7-2001, and Sec. 49-7-2004.) With respect to
exempt institutions, current law may not meet criteria 1, 2 and 4.
43. Texas. It is doubtful that Texas law will comply with the
Proposed Regulation. Texas requires State licensure or certification,
and compliance with comprehensive consumer protection laws; however,
these laws do not apply to institutions accredited by a regional
accrediting agency recognized by the U.S. DOE. (See Tex. Educ. Code
Sec. 61.303; and 19 TAC Sec. 7.4.) With respect to exempt
institutions, current law probably will not meet criteria 1, 2 and 4.
44. Utah. It is doubtful that Utah law will comply with the
Proposed Regulation. Utah has a registration system for private
postsecondary institutions, and requires compliance with comprehensive
consumer protection laws; however, these laws do not apply to
institutions accredited by a regional accrediting agency recognized by
the U.S. DOE. (See Utah Code Ann. Sec. 13-34-105.) With respect to
exempt institutions, current law probably will not meet criteria 1, 2
and 4.
45. Vermont. It is doubtful that Vermont law will comply with the
Proposed Regulation. Although the State requires state board approval,
and reviews institutions in accordance with federal standards
established in 20 U.S.C. Sec. 1099a-3. (16 V.S.A. Sec. 2882.), it
exempts religious institutions, and institutions accredited by an
accrediting agency recognized by the State Board. (See 16 V.S.A. Sec.
176.) With respect to exempt institutions, current law will probably
not meet criteria 1, 2 and 4.
46. Virginia. It is doubtful that Virginia law will comply with the
Proposed Regulation. Virginia requires State licensure or
certification, and compliance with comprehensive consumer protection
laws; however, these laws do not apply to religious institutions, or
nonprofit institutions accredited by an agency recognized by the U.S.
DOE, or accredited institutions in operation for at least 10 years at
the time the state legislation was passed. (See Va. Code Ann. Sec. 23-
276.2; and Sec. 23-276.4.) With respect to exempt institutions,
current law will probably not meet criteria 1, 2 and 4.
47. Washington. It is doubtful that Washington law will comply with
the Proposed Regulation. Washington requires State licensure or
certification, and compliance with comprehensive consumer protection
laws; however, Washington's regulatory scheme does not apply to private
postsecondary institutions that are religious oriented, or accredited
by an agency recognized by the state board and have been operating
within the state for 15 years or more. (See Rev. Code Wash. (ARCW)
Sec. 28B.85.010 et seq.; and WAC Sec. 250-61-060.) With respect to
exempt institutions, current law may not meet criteria 1, 2 and 4.
48. West Virginia. It is doubtful that West Virginia law will
comply with the Proposed Regulation. The State requires licensure and
compliance with comprehensive consumer protection laws (See W. Va. Code
Sec. 18B-4-7); however, it exempts institutions approved to operate in
West Virginia prior to July 1, 2006, and waives significant levels of
state authorization review for institutions accredited by regional
accrediting associations. (See W. Va. CSR Sec. 133-20-9; and W. Va.
CSR Sec. 133-20-4.) With respect to exempt institutions, current law
may not meet criteria 1, 2 and 4.
49. Wisconsin. It is doubtful that Wisconsin law will comply with
the Proposed Regulation. The State approves and reviews private
postsecondary institutions, but exempts institutions accredited by
accrediting agencies recognized by the State board. (See Wis. Stat.
Sec. 38.50.) With respect to exempt institutions, current law will
probably not meet criteria 1, 2 and 4.
50. Wyoming. Wyoming law will probably comply with the Proposed
Regulation. Wyoming requires State licensure for all private
postsecondary degree-granting institutions (See Wyo. Stat. Sec. 21-2-
401 et seq.; and W.C.W.R. Sec. 005-000-030). Current law probably
meets all four criteria.
______
------
Chairwoman Foxx. Without objection.
Thank you all very much again, for your comments. I would
like to direct this question to Mr. Ebersole, Dr. Dowden, and
Mr. Wolff. I understand the Department is working on some
additional guidance for these regulations and it is been our
understanding that the purpose of regulations was to provide
additional clarity to the statute, not to further complicate
it. But if you didn't cover in your testimony, could you
provide us with some of the--some examples of unanswered
questions you still have about these regulations?
Mr. Ebersole.
Mr. Ebersole. Thank you. We have a number of questions
about these regulations. We have not received guidance, even
though we have asked for and been granted one-on-one meetings
with various officials within the Department of Education. We
have been told that there is some form of Dear Colleague Letter
which will be forthcoming. We have been waiting for a couple of
months now for this.
Meanwhile the clock continues to tick towards the effective
date. And we have been told by a number of states that they do
not know how they are going to enforce this rule and we are
going to be put in a position of jeopardy where we are either
going to have withdrawn from those states or put our Title IV
eligibility at risk.
We would prefer not to do either but we are quite confused
at this point. We do know we have put money in our budget for
compliance and we estimate that at our institution by the time
we hire the additional staff that will be necessary to
coordinate this and we pay the fees which each of these states
requires we are going to have an annual recurring cost of
somewhere between $150,000 and $200,000 which when multiplied
by the number of institutions that offer online programs today,
we are talking about an additional cost which will eventually
be passed to students of $500 million.
Chairwoman Foxx. Dr. Dowden.
Mr. Dowden. I would answer that by saying that, in regards
to the state authorization we, in preparation for this
testimony called our state, and they at this point have no idea
of how they are going to implement it, what it actually means
for the state and what will be the requirements.
For the credit hour, I think the definition is obviously
clear but it is confusing and how it relates to a variety of
educational experiences that we offer at the institution
including practicums and student teaching experiences and many
other experiences that don't include the formula of the seat
time and that might be difficult to figure out an equivalency
as proposed in the regulations.
Chairwoman Foxx. Thank you.
Mr. Wolff.
Mr. Wolff. Three quick comments. First, the nature of Dear
Colleague Letters issued by the Department are such they offer
interpretations of regulatory language that themselves need
further interpretation by the staff, that vary from region,
from accreditor to accreditor, when accreditors come up for
review.
And institutions will not know until they have gone through
their program review whether or not they have gone through
their program reviews whether or not they have conformed. So it
is a never ending, sub-regulatory interpretation approach.
There are so many areas of confusion, let me identify one
with each of the regulations. With respect to the credit hour,
the accrediting agencies are expected or allowed to sample
courses to ensure the reliability and accuracy and conduct
effective reviews.
The California community colleges offer over 180,000
courses, the University of California, 50,000, Stanford 10,000.
Even a small middle-sized institution like the University of
San Francisco offers 5,000 courses. What would be an effective
sample size, how much time will it take? We don't know and we
are afraid that the--any sample size will require an enormous
burden on the institutions.
With respect to state authorization, for 40 years we had an
arrangement with the State of California that student
complaints would be referred to WASC, we would review them, and
if we found they were serious they would be referred to the
Attorney General. We have no idea if that would be continued or
if a completely new and duplicative complaint process would
need to be established. That is just two of many areas.
Chairwoman Foxx. Thank you all very much.
Mr. Hinojosa, you are recognized for 5 minutes.
Mr. Hinojosa. Thank you. First I would like to welcome our
distinguished guests and say that I am pleased to see that Ms.
Kathleen Tighe, our Inspector General, is here today.
My first question is directed to Inspector General Tighe.
In your testimony you indicate that the explosion of online
education in recent years has made it even more difficult to
assign credit hours and assess student achievement. What are
national and regional accreditation agencies doing to ensure
that online education programs provide quality--that they
provide content and academic rigor at the post-secondary level?
Ms. Tighe. Well, I think that was one of the things we went
in to look at when we did our review over the last couple of
years. We went into three regional accrediting agencies who
collectively were responsible for accrediting over 2,000
schools including schools offering online education programs.
I think the difficult problem in this area, that we have
found, is when you don't have a definition of a credit hour or
guidance as to program length or guidance as to assignment of a
credit hour, when you have nontraditional format it is very
hard to sort of make judgments as to the kinds of standards I
think accrediting agencies should be making judgments on.
Mr. Hinojosa. If you could expand Ms. Tighe, in your
testimony you indicate that the definition of a credit hour
protects students and taxpayers from inflated credit hours, the
improper designation of full-time student status, the over-
awarding of federal student aid funds and excessive borrowing
by students, especially with distance, accelerated and other
programs not delivered through traditional classroom format. So
what type of impact do you believe this regulation will have on
regional and national accrediting agencies?
Ms. Tighe. Well, I think that they will have to do what we
believe they should be doing, which is really looking at
schools in a way that--I think a definition of a credit hour
will allow them to have sort of a common understanding and
standard to judge these schools by. It is a challenge. There is
no doubt about it--in the online environment--for coming up
with something that makes sense.
It appears to us that the Department has come up with a
definition that provides enough flexibility to bring in student
outcomes and I know those were some of the issues raised to us
by HLC and Middle States also--that they relied on student
outcomes and didn't want to be tied to a definition of a credit
hour. I don't think those two concepts are inherently
incompatible.
So I think it is really a matter for us, in the Office of
Inspector General, making sure Title IV money is spent wisely
and that students do not over-borrow and that taxpayers aren't
on the hook where they should not be.
Mr. Hinojosa. Thank you.
Mr. Wolff, absent a definition of a credit hour, what do
your accreditation teams evaluate on campus to assess
institutional assignment of credit hour?
Mr. Wolff. Our teams--first of all, at the Western
Association we have had a broad definition of a credit hour for
many years. But I will say and that one other regional
association does, the three that the Inspector General looked
at did not have formal definition.
But every--when a team goes and visits a campus, the first
thing it does is it looks at a catalog, it looks at the range
of courses that are offered, the kinds of courses that are
offered, and what leads up to a degree. We are very concerned
about how--the capacities of a graduate, at the time the
student completes their program.
We put primary attention on online programs, accelerated
learning programs, where we think there are potential concerns.
And so teams will go in. We look at syllabi, we look at what is
in the kinds of work that is expected of students. We will
often look at samples of student work. This is very labor
intensive.
And we have done so and required institutions to improve
both--less their credit hour assignment, than the rigor of
their work and the outcomes that are expected of the students.
I would submit that the accrediting process is effective as
it showed in the case of the Higher Learning Commission. In
identifying issues we are primarily interested in the quality
and the rigor of the work and think we do an effective job.
Mr. Hinojosa. Dr. Dowden, how does it impact religious
colleges like yours?
Mr. Dowden. Well, if I could comment on the accrediting
situation as well. I am a consultant evaluator for the Higher
Learning Commission----
Chairwoman Foxx. Mr. Dowden, I am afraid we are out of
time, so I am going to ask you to submit that for the record.
Mr. Dowden. Okay.
Chairwoman Foxx. Thank you.
I now would like to recognize Mr. Thompson, from
Pennsylvania.
Mr. Thompson. Thank you Madam Chairwoman for hosting this
hearing. Thanks to all of the members of the panel for bringing
your expertise on this very important issue. The--of higher
education. Madam Chair I want to ask for unanimous consent to
enter into the record a letter sent from the Citizens for
Responsibility and Ethics in Washington, or CREW, to the
Department of Education, Secretary Arne Duncan, dated March 1,
2011.
[The information follows:]
------
Chairwoman Foxx. Without objection.
Mr. Thompson. Thank you.
Inspector General, thanks for being with us. My first
question is really to just touch briefly on this, have you seen
the letter from CREW to the Secretary, requesting that he
examine the role of hedge fund managers and outside interest
groups that played in the Department of Education's regulations
governing the for-profit education better known as gainful
employment?
Ms. Tighe. I have seen the letter, yes.
Mr. Thompson. Okay. Great. And do you understand that CREW
had obtained Freedom of Information Act request for emails of
high-level Department of Education officials and their
correspondence from outside groups with regards to the proposed
gainful employment regulations?
Ms. Tighe. That is my understanding.
Mr. Thompson. Great. And are you aware that CREW has
alleged, within the letter, that both Deputy Undersecretary
James Kvaal and Budget Development Staff Director, David
Bergeron had knowingly planned a leak of the proposed
regulations 2 days in advance of the regulations anticipated
public roll out?
Ms. Tighe. That is what the letter says, yes.
Mr. Thompson. I am sure you know--can understand the
gravity of the situation. Gainful employment regulations have
had an effect on proprietary schools. Any collusion or insider
information would have a bearing on short sellers hedging their
bets against proprietary schools. And I believe this is what
the SEC refers to as ``insider training.'' I am certainly no
expert in that area.
Were you--my question for you is, will you seek the
assistance of the SEC in conducting the review that the
Secretary has asked you to undertake of shortseller contracts
and the influence with department officials?
Ms. Tighe. My understanding is a separate letter was also
sent to the SEC with similar information and what I can tell
you is that prior to receiving that particular letter we had
also received an earlier letter from CREW and also from Senator
Coburn, raising the same issues to us. It was pre--before FOIA
request--response. And we had initiated an audit related to
those issues and we are currently doing our work on that audit.
Based on the further information CREW provided in that
letter, that you spoke of, we gave that to our people looking
at it and so they will take that all into account.
Mr. Thompson. So will you at some point be working with the
SEC given the implications of just a--just to be able to
thoroughly investigate it from all areas.
Ms. Tighe. Faced with them, it would seem to make sense to
do so, yes.
Mr. Thompson. Great, thank you. We--changing gears a bit.
The--Pennsylvania's budget rolled out this week and cuts to
higher education were as expected. I mean, this is tough times,
both in the nation and across the states and support for higher
education was reduced. And so I have a concern as we know that
revenues, certain parts of revenues are growing smaller, that
the cost regulations continues to grow larger.
And so my question for the panel is we have been spending
much of the month talking about the impact of federal
regulations on students and schools and can you briefly discuss
the amount of time and specifically money that you spend on
complying with federal laws and statutes and how much is this
going to cost the institution which in the end goes towards
making higher education more expensive and less accessible.
Start with Mr. Ebersole, if we can.
Mr. Ebersole. I believe that this is going to have a great
impact on the cost of education. As I indicated in my earlier
comments, I believe that we are going to see something in the
neighborhood of $500,000 just on the education side let alone
what it is going to require for the states in order to be
compliant.
It is also going to bring into question programs such as
that which the President lauded recently at Carnegie Melon
where they were talking about accelerated learning. That would
not be possible for any student studying under Title IV, given
this definition.
I am personally somewhat concerned that we in the higher
education community, 4 years ago, spent a great deal of time
and effort looking at learning outcomes. And we have been busy
building learning outcomes which are being very much examined
by accreditors rather than looking at inputs.
The Inspector General talks about wanting to protect the
taxpayers, I think what the taxpayers wants is, is learning
occurring, not how many hours you have spent in a seat. Did you
learn something?
And we are actively at work right now assessing learning
outcomes.
Mr. Thompson. Thank you.
Chairwoman Foxx. Dr. Dowden and Mr. Wolff, I think I am
going to have to ask you to submit your answers for the record
also. And I would now like to recognize Mr. Bishop.
Mr. Bishop. Thank you very much Madam Chair. Mr. Ebersole,
I want to engage you on the point you just made. I administered
a college in New York State for 29 years before I came here. I
wanted to get into a profession where politics was less of a
factor. [Laughter.]
Mr. Ebersole. I see you have succeeded sir.
Mr. Bishop. I have, yes. When I was in New York we had to
register every academic program we offered. With the State of
New York it was something we simply had to do. And it wasn't
just ministerial. It was a qualitative assessment by the New
York State Education Department. We somehow managed to survive.
Syracuse has somehow managed to survive. Lemoyne has somehow
managed to survive. And we also had to follow the Carnegie
definition of a credit hour or its equivalent.
And I want to pick up on what you just said. You said that
the kind of program that President Obama lauded at Carnegie
Melon would not be possible under this new regulation. And I
really want to challenge you on that because if that logic is
correct then we would not be offering summer courses, we would
not be offering interim courses, because that is accelerated
learning.
If a student can earn three credits over a 4-or 5-or 6-week
summer term, by virtue of having the same number of clock hours
or seat hours of instruction, that in fact is accelerated
learning but it is the credit hour or its equivalent. Am I not
right?
Mr. Ebersole. No, sir, I don't think so.
Mr. Bishop. All right, then educate me.
Mr. Ebersole. What we are talking about is we are talking
about gaining greater mastery over a subject area in the same
or a less amount of time.
Mr. Bishop. And that is precisely what a summer course is.
Mr. Ebersole. But a summer program, to carry a certain
number of units, still has to meet for a certain number of
hours. Online and with the computer I can match my instruction
to your learning style.
Mr. Bishop. So let's be clear about one thing, because I
think I agree with you. This issue is exclusively about non-
traditional modes of instruction, correct?
Mr. Ebersole. Well, that is my concern sir. My institution
could not----
Mr. Bishop. Okay, and Dr. Dowden, do you all agree?
I know you haven't had a chance to--you could----
Mr. Dowden. I would not agree with that. I think we----
Mr. Bishop. Right. Then help me. If it isn't about just
non-traditional forms of instruction, would the curriculum
committee at your school approve a full semester course that
met for fewer than 45, 50-minute hours?
Mr. Dowden. They could, just depending on what the out-of-
classroom-work requirement was. We would have to--under these
regulations the----
Mr. Bishop. But does that not again--I mean my
understanding of the regulation--I am not trying to be
argumentative. I want to make sure I understand this. Is that
it would be the Carnegie--what we all call the Carnegie
definition--a three-credit course would be 45, 50-hours?
Mr. Dowden. Right. Yes.
Mr. Bishop. Or its equivalent. So if your curriculum
committee were to say, you know what, this instructor is
phenomenal he can get this information transmitted to the
students in 6 weeks. Would your curriculum committee approve
that? 6 weeks of maybe 18 hours of instruction?
Mr. Dowden. Let me say that at our institution faculty are
very stingy with credit hour. It is the corn of the realm and
they are very, very careful to award credit hour. In fact, they
probably would award less than more in many cases.
Mr. Bishop. You are making my point. I thank you for that.
Mr. Dowden. But----
Mr. Bishop. Because--so if it is about traditional modes of
instruction I think what I just heard you say is your faculty
would more likely err on the side of requiring more seat hours
as opposed to fewer, am I right?
Mr. Dowden. Perhaps in traditional modes of instruction.
But there are a lot of other modes of instruction that the
practicums and other----
Mr. Bishop. I understand that. That is what I am trying to
focus in on.
Mr. Dowden [continuing]. Yes.
Mr. Bishop. This issue is largely, if not exclusively,
about non-traditional modes of instruction. Is that not
correct?
Mr. Dowden. It depends on how you define non-traditional
modes. Is a practicum a non-traditional mode, I----
Mr. Bishop. Yes, yes it is.
Mr. Dowden. Yes, I would--probably largely, about that.
Although, take a music class, let's say a student might have an
hour but might be practicing for 8 or 10 hours during the week
as opposed to a class in sociology where it would be fair
standard with the definition that we are proposing. So it is
not largely the non-traditional as you would define it but it
would apply to the traditional classes as well.
Mr. Bishop. Tell me what is so hard about determining an
equivalent? My daughter just got a Masters in Library Science.
She took some of her course work online, through a New York
State institution which was required to assert that the
instruction she took had its equivalent in 45, 50-minute hours.
Now what is--why can that institution do it but this is
going to create an enormous burden? I know I am over my time
Madam Chair.
Mr. Dowden. Well, the key is that that institution did
that, it wasn't some definition of the federal government that
is pretty unclear about how you determine equivalency.
Mr. Bishop. Well, at the risk of--indulge me. It was
pursuant to a New York State requirement that has existed at
least as long as I have been involved which was 1973.
I yield back.
Chairwoman Foxx. Thank you Mr. Bishop and thank you for
being sensitive to the time.
I want to raise one example that I observed when I was in
administration in a university. We often would have students
who would come in and say that they had the knowledge to pass a
course and would ask to take the final exam and they could pass
that final exam and then they were awarded the credit for the
course.
As I read the regulations, there is no way to take care of
that situation, and I think there are lots of others so I think
Mr. Bishop, both of us having had some experience in university
and college we could probably find lots of situations that
aren't going to meet the definition of this regulation that are
common practice right now within institutions and don't even
deal with the new learning experiences.
Thank you for indulging me on that comment. I now am
keeping the chairman of the committee waiting and I apologize
for that. I would like to recognize Mr. Kline.
Mr. Kline. Thank you Madam Chair. I am feeling very humbled
here in the presence of Mr. Bishop and Mrs. Foxx and their
many, many years of experience in higher education.
Mr. Bishop. Mr. Chairman, you will get over it I am sure.
[Laughter.]
Mr. Kline. I think I just did, thank you very much.
And Madam Inspector General, we are very pleased to have
you here today and I don't have a series of questions for you
but I do have a plea, a statement and a plea. We had the
Secretary here yesterday and I posed a question for the record,
for him, on this issue of short selling. It is a very, very
troubling issue. We hope that you are looking at this
vigorously. We hope that there is cooperation with the SEC and
that we will get an answer.
Clearly, the impact on the entire sector, we saw stock
prices move radically and rapidly and the potential for real
mischief and felony activity is high. So I really hope that you
will look into that and come back to us quickly with those
results.
Let me see, stepping off into this continuing discussion
about the federal definition of the credit hour. Mr. Wolff, you
said in your testimony that you thought that it would stifle
innovation. But I understand there is an alternative in the
regulation that was supposed to address this, why isn't that
good enough? Can you tell us--and we don't--I don't think any
of us here want to stifle innovation and the ability to move
out and meet the demands of the work place. So why isn't that
alternative good enough?
Mr. Wolff. It is a fair question. I would personally say
that to many of us the definition itself is unclear because it
uses so many terms. It--I will just read to you some of the
terms, ``intended learning outcomes, verified by student
achievements, reasonable equivalency, classroom seat time'' so
that you put all of these together and then accreditors are
supposed to assure that the assignment of credit meets
customary practice. Well is it the federal definition or is it
customary practice?
So, the definition itself is unclear. And what institutions
have told us, they are afraid that whatever it is they do, that
it may be possible to be found out of compliance.
Secondly, institutions are held to be responsible to ensure
the ``reliability and accuracy of the credit assignment.''
There are many concerns of how does one verify that without an
enormous expenditure of time.
Thirdly, there are, as others have said, new models that
are coming forward. Carnegie Mellon for example has developed a
computer based learning model that is shown to establish very
effective learning outcomes with very little faculty
interaction. It is not based on seat time. It is based on
learning objectives.
Here the question is: which is going to take priority, the
learning objectives or the amount of work correlated to seat
time?
We are trying to move institutions to learning outcomes
particularly as they coalesce or cohere together toward a
complete set of outcomes at the degree level. This drives the
whole conversation to a lower unit of analysis at the course
level and we have heard that people are concerned that they are
going to be found out of compliance and subject their entire
financial aid at risk if they fail to meet the federal
definition.
Having this in the regulation federalizes and potentially
increases the risk of violating a very confusing set of
criteria.
Mr. Kline. So they are just afraid to try?
Mr. Wolff. I am sorry I didn't----
Mr. Kline. So they are just afraid to try, is what you
are----
Mr. Wolff. I think that we may find, that at least some
faculty committees will say, well--they are going to be
focusing on the federal definition rather than what the
institution is trying to accomplish.
I think it is going to shift the focus and I think it may
be up with others saying this may not meet the definition
because it will inhibit experimentation.
Let me also say that individual faculty members take a
syllabus and try to play with it to improve learning. Do out of
class assignments, some students are going to take more time
than others. I think that is what it is going to inhibit the
most because the institution is going to say, you can't do too
much experimentation because you are violating the federal
standard here. And it may inhibit individual faculty members
from trying new approaches.
Mr. Kline. Okay, I can see that my time is just about to
expire. Yes, Dr. Dowden, jump in.
Mr. Dowden. I was just going to say, I think if this
definition goes through I would suspect that our faculty would
need to review every single class we have and try to see if the
credit hour allocation is appropriate and that would take a
significant amount of time and really would deflect from the
learning experience and emphasis on our students.
Mr. Kline. Thank you. I yield back Madam Chair.
Chairwoman Foxx. I thank the chairman for being so
punctual. It occurred to me as you were talking Mr. Wolff that
this sounds like No Child Left Behind, applied to the
universities and colleges. I would now like to recognize Mr.
Andrews.
Mr. Andrews. Thank you Madam Chairwoman. Congratulations on
your election as chair of the subcommittee. It is good to be
working with you.
And I thank the panel for being really expert, getting us
into the details of this issue. And as a layperson I would like
to leave the details for a minute and get to maybe 10,000 feet
and ask a couple of questions at that level.
I think there is universal agreement that students need to
get what they paid for and they need some kind of standard that
helps them know whether they are getting what they pay for.
So the hypothesis behind the regulation on credit hour
would be that there is rather systemic evidence that students
aren't getting what they pay for. So therefore it is necessary
to switch to a system where there is a federal, legal
definition of credit hours so people can get what they pay for.
This is kind of what this is about.
And I want to ask the Inspector General--I know we had this
report from last June--about the Northern Central accreditation
problem. What other evidence is there? And that really was, as
I understand it, one school that raised an issue and it was
remedied. What evidence is there of any systemic failure of the
status quo system on credit hour regulation?
Ms. Tighe. Well, I think as far as the particular issue we
looked at with the Higher Learning Commission, I would point
out to my fellow panelists who raised this issue, that when we
submitted our alert report to the Department it immediately
went in and looked at the Higher Learning Commission and
examined further institutions in addition to the ones that we
had looked at.
Mr. Andrews. And what did they find?
Ms. Tighe. They found the instance we found with AIU was
not an isolated incident.
Mr. Andrews. How many others did they find?
Ms. Tighe. I can't say that based on that, but I know that
they found others. And I think if----
Mr. Andrews. With all due respect, I would ask you to
submit for the record, a quantification of that comment. I mean
if it is four others that is not much concern. If it is 4,000
it is a major----
Ms. Tighe. Okay. I don't think it was 4,000. I don't think
they would have looked at that many schools but we can let--we
can----
Mr. Andrews. What about other accreditation agencies beyond
the Northern Central one?
Ms. Tighe. Well, we know that the Higher Learning
Commission was not the only--Higher Learning Commission is the
largest regional, it accredits 975 schools. We looked at two
other very large regional accrediting agencies. We also found
they didn't--we didn't find the particular problems in the
schools, but we also find they didn't define or give standards
to a credit hour or assignment of a credit hour.
Mr. Andrews. I do understand and we very much appreciated
your testimony last June, when you pointed that out. But let me
sort of summarize what I think the record shows.
There was some examination of three accreditation agencies.
The first is the Northern Central one and you said there is
``some evidence of other problems at other schools.'' We would
invite you to supplement the record of what that is.
And then the other two, the evidence shows that there
wasn't a standard or guidance articulated, but was there any
evidence of students not getting what they pay for in those two
regions?
Ms. Tighe. Well, I would say--well my answer to that would
be its sort of hard to tell without some uniform guidance on
what a credit hour means. And I think in that lies the heart of
the problem. I will say, I don't think the Department based its
definition of a credit hour or the fact that it wanted to have
a definition of a credit hour, based on our work. I think that
may have fed into the discussion related to it, but I think
they had other concerns based on information that----
Mr. Andrews. My time is kind of fleeting here. I hope that
is not a generic statement, or should be for this hearing.
I understand that, although that kind of goes to the point
of my question. Your work is to uncover, frankly, abuses of the
law and taxpayer's dollars. And if there are such, let's fix
it. But if the rules aren't based on your work, and I realize
this is not your answer to give, but what is it, what are they
based on?
So that--the concern that I have is that if the evidence
shows that there is systemic cheating of students and taxpayers
because of the credit hour status quo I think we should fix it.
But if the record shows that there isn't, then I wonder if this
is not a solution in search of a problem.
And if there is a problem here I think you are going to
find a lot of support for fixing it. But I am one who wants to
see the evidence of that before we take position.
I would just also ask to submit for the record, a letter of
February 16th, from The American Council on Education, Office
of the President, if I could.
Chairwoman Foxx. Without objection.
Mr. Andrews. Thank you very much.
Chairwoman Foxx. Thank you very much for your sensitivity
to the time.
Also, Mr. Tierney?
Mr. Tierney. Thank you Madam Chairwoman. I want to thank
all of the witnesses for their testimony. This is an
interesting area, or at least I have found it interesting.
Since the enrollments in online courses have started to
increase, and I have always sort of struggled with the idea of
how is there is an increase in, obviously, grant money--Pell
grant money--and everything goes in that direction. The
taxpayers' concern that they are getting their money's worth
increases along with that.
So if we don't have some standard or baseline against which
to judge it, how do you propose we are going to be able to
convince the taxpayer that their investments are well founded?
Sir.
Mr. Ebersole. I have been involved both as a chair of an
accreditation team, recently. I also have been very involved
with the President's forum where we have been looking at the
creation of a method by which we can assess learning outcomes.
This is something that has been incorporated into the standards
of the middle states accreditation and I suspect others as
well.
We are looking at outcomes. We are looking at proof of
learning and we are looking to make that proof of learning
objective. And we also are publicizing it so that others can
look at this proof of learning before making a decision as to
whether to come to our institution.
Mr. Tierney. Can you give me an idea of what would
constitute proof or evidence of learning?
Mr. Ebersole. Yes. Using objective criteria or objective
instruments such as the standardized examinations, which are
coming from the University of Indiana, the piece all. These are
examinations which show the degree to which our students are,
learning, and gives us the ability to compare----
Mr. Tierney. Sounds suspiciously like No Child Left Behind,
for all the people behind, written for all the people here. You
are going to--I mean are you going to be teaching to the test?
Are we going to see all this fight and battle back and forth
again?
Mr. Ebersole. Well, we don't have access to the test so we
couldn't really teach to it. It is really very objective and we
are using multiple methodologies. It is not a single
methodology. And I suggest to you sir, that the measurement of
seat time is kind of like measuring the number of books in the
library and the number of dollars in the endowment as a way of
defining quality. I don't believe that inputs tell us very much
at all about what our tax payers are buying.
Mr. Tierney. I don't necessarily disagree with what you are
saying. I am just struggling with the idea of a course, some of
the sociology courses, some history courses of different areas,
other broader subjects like that a different faculty may attack
those from different ways.
I am having a difficult time struggling with how one test
is going to satisfy all the different universities that may get
people a lot of knowledge, just not the same set of knowledge
on that. And I think you are going to have some difficulty
probably dealing with that issue.
Mr. Ebersole. Well, we are looking at some standards which
have had some agreement relative to what it is we think that
someone who possesses our degree, our faculty have come
together and says that someone who is awarded a degree from our
institution should be able to do the following. Whether that
degree is in business, or liberal arts, or versing, they need
to be able to think critically.
They need to be able to communicate with both the written
and the oral word. There are absolutely things which we believe
define a baccalaureate education, and that is what we are
testing for.
Mr. Tierney. Dr. Tighe, do you think that would be a good
substitution for the credit hour measure?
Ms. Tighe. Well, I think student outcomes and a credit hour
as defined by the Department are not inconsistent. What worries
me, and what I hear here is that in the end you have to be a
full-time student to get a full time--you know, a full time
amount of student aid. What does that mean if you can't put
some temporal, you know, measure on it that measures student
engagement in some fashion?
And I am not sure, without some definition of a credit
hour--which does allow you for equivalents--you can get there.
Mr. Tierney. To the other three panelists, if the
regulation were better defined, if you could read it and easily
understand what it said, would you have less of an objection or
would you still be objecting on a philosophical level that you
just don't want that standard or any standard in that regard?
Mr. Wolff. Well, I am going to ask Mr. Wolff, he was in the----
Mr. Wolff. I would still have concern in the sense that, I
would agree with Dr. Dowden, that I think what institutions
have to do is assure the reliability of every course offered
and that the scale of this is quite extraordinary.
Mr. Tierney. How do you do that, though? I mean, you keep
saying that over again. Is it subjective? Are you sort of
taking nods, saying I like that, I don't like something else? I
mean, if you don't have a standard that is more tangible like a
credit hour or something like that, do you just go in as a team
and you say I don't like the way the professor is approaching
it? What do you----
Mr. Wolff. There is not--I think it is important to say,
first of all, there is not a vacuum. Institutions already are
doing this. There are faculty committees that review courses
that look at the assignment of credit in relationship to the
rigor. It is being done.
The issue is, the federal definition that----
Mr. Tierney. Okay, so you are out--you think that schools
regulating themselves give the taxpayer the protection that
they need to know that no school is dumbing it down or avoiding
anything?
Mr. Wolff. Well, in line with what Mr. Andrews was saying,
that we asked repeatedly at the negotiated rule making, what is
the scope of this problem so that we could help define a
resolution. And we were never told what the scope was, beyond
this one incident. So arguably, it ought--it is being done and
we are not clear that what is being done is ineffective.
Secondly, I can say that there already are existing
regulations with the Department of Education that we must
conform to that require us to approve an advanced distance
education programs where we are looking at this.
And secondly, to review, assure that all of our standards
are being applied when we do reviews of institutions.
Mr. Tierney. Thank you.
Chairwoman Foxx. Thank you Mr. Wolff, and thank you Mr.
Tierney.
Someone just pointed out to me that the fact that you and I
are agreeing on this and Mr. Andrews said, ``it looks like a
solution in search of a problem'' was something I said
yesterday. Something must be happening here that we are
agreeing.
I would like to recognize now Ms. Davis.
Mrs. Davis. Thank you Madam Chairman. It is always a
problem when you walk in after--excuse me, after a lot of
questions. But let me--if I could just go back a second,
because I know you have been talking about the type of
standards that the accrediting agencies use when they are
trying to accredit colleges and universities. Is that clear? Do
those vary from state to state as well, when we are talking
about this credit hour?
Mr. Dowden. I would say they vary from institution to
institution based on the knowledge of a faculty. The review
of--a careful review of the faculty on what constitutes a
credit hour and then I would recommend that that be held
accountable, those credit hour allocations be held accountable
by the accrediting associations rather than through a credit
hour definition.
Mr. Ebersole. I would like to say that for those of us in
the online arena, this is a problem. We don't know exactly what
the equivalent, acceptable equivalency is going to look like.
There are definitely going to be differences of interpretation.
Why we feel like that, rather than trying to say how much time
does someone sit in front of a computer or how much time does
one take before sitting for one of our assessments of prior
learning, that in fact we look at the outcomes that are being
produced by our institution.
That I think is what the taxpayer is paying for and the
student is paying for.
Mrs. Davis. Dr. Tighe, would you say that in trying to
bring that together that you were consulting these different
agencies, how did you actually arrive at that in the first
place? And perhaps you have already discussed this, I am sorry.
Ms. Tighe. I am sorry?
Mrs. Davis. The federal definition of the credit hour?
Ms. Tighe. Well, the federal definition of a credit hour is
not something we define. What we recommended in our work is
that there be some definition of a credit hour. We did not
dictate what that definition would be.
We felt in our work in looking at the accrediting agencies
and saw that there was no definition by which they were judging
the institutions that they accredit, that that led to some
inconsistencies in how those credit hours were being assigned.
Mrs. Davis. Does it--is it your belief though that it
should ensure flexibility in the way that----
Ms. Tighe. Our reading of the definition is that it looks
like it provides flexibility.
Mrs. Davis. Okay, thank you.
Mr. Wolff. Could I add that there are seven regional
commissions, all of us focus on learning outcomes. Not only is
it a federal requirement is our belief that constitutes real
quality and will lead to excellence.
We focus on the outcomes of the certificate or degree
program. We assure that the courses are aligned to achieve it
and that the outcomes build together to that. We all work
together acceptable models, not a single model of a test or--we
use portfolios, Cap-Stone courses and the like.
So we do look at credit hours, but more importantly we look
at, does it bring together to a set of learning outcomes that
are appropriate for the degree or certificate being awarded.
There is a great consistency across the seven regions.
Mrs. Davis. Dr. Tighe, what kind of assistance is being
granted to--just give some technical assistance--to folks that
are going to be trying to comply with this?
Ms. Tighe. I can't exactly speak for the Department but I
am aware that they are trying to come out with guidance in
these areas to further explain the issues that have been raised
in the regulations.
Mrs. Davis. Do you have a sense, I guess all of you, what
is it that you most think is going to be needed as you move
forward with this in terms of being clear about what is going
on?
Mr. Dowden. If I could say, there is 100 days until these
regulations have to be implemented. And I think the regulations
are not clear. We really don't have a lot of guidance from the
Department of Education on how to implement them.
The states don't have a lot of guidance on how to implement
the state authorization and I think it's going to be an
interesting 100 days if these, the credit hour and state
authorization provisions remain in the statutes.
Mr. Ebersole. In the area of state authorization there is
no way that we can be in compliance. The states won't be in the
position to accept our applications, will not be in a position
to review them or act on them. Some states have program reviews
which require stacks and stacks of documents covering every
single course and every single faculty member in those
programs.
It took us 400 hours in one state just to register two
programs. To think that 3,000 institutions with hundreds of
programs will be able to register in these states is, frankly,
not realistic.
Chairwoman Foxx. Thank you Mrs. Davis. And I want to again,
thank the witnesses for the taking of your time today. I want
to thank all of the members of the subcommittee who came and
have been so judicious in sticking to the time. We are very
grateful to you. I am very grateful for the information you
have shared with us.
Mr. Hinojosa, do you have any closing remarks you would
like to make?
Mr. Hinojosa. I would just like to thank the presenters. I
would insist that you have given us good information that we
can work from. And that we are going to be working with all of
our colleges and universities to help them be able to do their
work. I know that this is the time in our country where
legislators are cutting back on their investment in higher
education and it is quite challenging for you to do your work.
So we need to work together. It is important and I am one
that believes that there should be definitions and regulations
so that they aren't being interpreted differently by others and
thus not doing what we should for our students.
And since we have so much federal money that is going
towards getting our students educated, I think it is our
responsibility in Congress to take that as one of the
priorities that in this committee we are going to see that is
clear and doable.
And so with that, Madam Chair, thank you for calling this
hearing today and we will continue working with you.
Chairwoman Foxx. Thank you very much Mr. Hinojosa.
There being no further business, the subcommittee stands
adjourned.
[Additional submission of Mrs. Foxx follows:]
------
[Identical letter submitted by Mr. Andrews and Mr. Wolff
follows:]
------
[Additional submission of Ms. Tighe follows:]
Supplemental Material Submitted by Ms. Tighe
Chairman Miller, Ranking Member Kline, and members of the
Committee: Thank you for inviting me here today to discuss the U.S.
Department of Education (Department) Office of Inspector General's
(OIG) reviews of accrediting agencies' standards for program length in
higher education. This is my first opportunity to testify before
Congress since my March confirmation as the Inspector General. It is an
honor to lead this organization with its long history of accomplishment
and to have the opportunity to work with this Committee, which has led
the way in improving Federal education programs and operations so they
meet the needs of America's students and families.
As requested, I will provide information on our work involving
standards for program length and the definition of a credit hour--
critically important issues in the Federal student aid programs, as the
amount of Federal student aid a student can receive is based on the
number of credit hours for which a student is enrolled.
This issue has become even more significant as on-line education
has exploded in recent years, making credit hour assignment difficult,
its comparison to traditional classroom delivery a challenge, and its
value increasingly important in order to ensure that students and
taxpayers get what they are paying for.
Background on the OIG and Accrediting Agencies
For 30 years, the OIG has worked to promote the efficiency,
effectiveness, and integrity of Federal education programs and
operations. We conduct independent audits, inspections, investigations,
and other reviews, and based on our findings, make recommendations to
the Department to address systemic weaknesses and recommend to both the
Department and Congress needed changes in Federal laws.
As members of this Committee know, the Federal student aid programs
have long been a major focus of our audit, inspection, and
investigative work, as they have been considered the most susceptible
to fraud and abuse. The programs are large, complex, and inherently
risky due to their design, reliance on numerous entities, and the
nature of the student population. OIG has produced volumes of
significant work involving the Federal student aid programs, leading to
statutory changes to the Higher Education Act of 1965, as amended
(HEA), as well as regulatory and Departmental operational changes. This
includes extensive work involving accrediting agencies. Accrediting
agencies are private educational associations that develop evaluation
criteria and conduct peer reviews of institutions of higher education
to ensure that the instruction provided by those institutions meets
acceptable levels of quality. The role they play is vital, as
accreditation is one of the primary requirements for an institution's
participation in the Federal student aid programs and determines
whether academic programs merit taxpayer support.
Under the HEA, the Department is dependent on the accrediting
agencies recognized by the Secretary of Education (Secretary) to ensure
that institutions provide quality, content, and academic rigor at the
postsecondary level. The Higher Education Opportunity Act of 2008
included a provision that prohibits the Department from developing
minimum regulatory criteria for an accrediting agency's standards for
accreditation. The Department of Education Organization Act of 1980
prohibits the Department from making determinations on curriculum and
educational quality. Thus, the Department is prohibited from
determining the quality of education funded by Federal education
dollars. All it can do with regard to evaluating the quality of
postsecondary education is recognize accrediting agencies as reliable
authorities for the quality of education funded by Federal dollars. In
1992, Congress established the National Advisory Committee on
Institutional Quality and Integrity--an independent body charged with
doing what the Department cannot: evaluating the adequacy of
accrediting agencies' standards for accreditation and making
recommendations to the Secretary as to those agencies that should be
recognized. That input is vital, as the recognition of accrediting
agencies by the Secretary is the primary tool available to the
Department for ensuring that students receive value for the taxpayer
investment in postsecondary education.
OIG Work Involving Accrediting Agencies
In the late 1980s and early 1990s, OIG identified significant
problems with some accrediting agencies' oversight of program length at
some institutions. Our work contributed to significantly strengthening
the requirements accrediting agencies needed to meet for recognition by
the Secretary in the Higher Education Act Amendments of 1992. The
Amendments also mandated that an academic year, for undergraduate
programs, must be a minimum of 30 weeks of instructional time in which
a full-time student is expected to complete at least 24 credit hours.
The Department faced difficulty in applying this requirement to
programs measuring student progress in credit hours but not using a
semester, trimester, or quarter system, including nontraditional
educational delivery methods. Therefore, the Department established the
regulatory 12-Hour Rule. The 12-Hour Rule served as a surrogate for the
Carnegie formula, which provided the standard unit of measuring credit
in higher education, whereby one credit hour generally consisted of one
hour of classroom work and two hours of outside preparation over the
course of the academic year. ``One hour of classroom work'' is defined
as 50 to 60 minutes. Under this method, a full-time student in an
education program using a semester, trimester, or quarter system would
have a workload of 36 hours per week through the academic year (12
hours of classroom work and 24 hours of outside preparation per week).
At the time, there was an assumption that the traditional semester,
trimester, and quarter system provided a minimum level of instruction
and that these programs closely followed the Carnegie formula.
The 12-Hour Rule provided a tool for the Department to help ensure
that students received a given quantity of instruction. The Department
relied on accrediting agencies to ensure that the quantity and quality
of instruction was at the postsecondary level. The assumption was that
a full-time student attempting 12 credit hours in a semester would have
12 hours of scheduled instruction per week. In 2000, we performed an
audit where we found that an institution's programs offered much less
classroom education than programs provided by traditional termbased
institutions and that the institution was in violation of the 12-Hour
Rule. A series of audits over the next two years identified other
institutions that were in violation of the 12-Hour Rule.
In 2002, the Department eliminated the 12-Hour Rule in favor of the
One-Day Rule. Under this regulation, an institution is required to
provide one day of regularly scheduled instruction during each week in
an academic year. However, neither the HEA nor the implementing
regulations define what constitutes instruction or the minimum amount
of instruction that needs to be provided during the required one day of
instruction. At the time of the change, much like today, there were
many different delivery methods for instruction: the traditional
residential term-based programs; residential programs not offered on a
semester, trimester, or quarter system; correspondence courses;
telecommunications programs; and independent study. There was no
specificity in what could be included as instruction for determining an
institution's academic year and credit hours for the awarding of
Federal student aid funds.
We informed the Department about our concern with the elimination
of the 12-Hour Rule, as well as the need to address the definition of
instruction, the appropriate amount of Federal student aid to be
awarded in non-traditional programs, and accrediting agency oversight
of nontraditional programs. As a result of this concern, in 2002-2003,
we took another look at this issue and examined two regional
accrediting agencies and two national accrediting agencies, evaluating
their standards for program length and student achievement. The scope
of recognition for regional accrediting agencies is limited to specific
states for each accrediting agency, while the scope of national
accrediting agencies is not limited to specific states. We found:
Program Length
Neither regional agency had a definition of a credit hour
that it required its institutions to follow. The standards these
regional agencies applied to program length were vague and without
definition, effectively allowing institutions to establish their own
standards; and
The two national agencies both had a definition of a
credit hour in terms of the required hours of instruction needed to
equate to a credit hour.
Student Achievement
The regional agencies had not established minimum
graduation, placement, and licensure rates for any of their
institutions providing vocational education programs. For all education
programs, these regional agencies permitted institutions to establish
their own standards for student achievement, without any specified
minimum standard; and
The national agencies had established minimum graduation,
placement, and state licensure rates for the institutions they
accredited. However, at both agencies we identified problems in the
methodology by which the rates were calculated that caused the rates to
be overstated.
As a result of these findings and in anticipation of the scheduled
2004 reauthorization of the HEA, we made a recommendation that Congress
establish a statutory definition of a credit hour stating: ``For
programs that are not offered in clock-hours, credit hours are the
basis for determining the amount of aid students are eligible for.
Absent a definition of a credit hour, there are no measures in the
[Higher Education Act] or regulations to ensure comparable funding
across different types of educational programs.'' The recommendation
was not included in the reauthorization.
Recent OIG Reviews
As a follow-up to this work and in anticipation of the 2009-2010
higher education negotiated rulemaking sessions in which the definition
of a credit hour was to be discussed, OIG once again examined the issue
in order to provide the Department with facts on program length and the
definition of a credit hour in negotiated rulemaking and to provide
information to Congress on the state of the definition of a credit hour
at regional accrediting agencies. As regional accreditation has long
been considered the ``gold standard'' in accreditation and information
on what the regional accrediting agencies were doing with regard to
credit hours could greatly inform the regulatory process, we determined
that we would do reviews at the three largest of the seven regional
accrediting agencies. The three accrediting agencies were: the Southern
Association of Colleges and Schools Commission on Colleges (SACS); the
Middle States Association of Colleges and Schools (Middle States); and
the Higher Learning Commission of the North Central Association of
Colleges and Schools (HLC). These three accrediting agencies represent
one-third of the institutions participating in Federal student aid
programs: 2,222 postsecondary institutions with more than $60 billion
in Federal student aid funding.
Our objectives were to determine: (1) what guidance the accrediting
agencies provide to institutions regarding program length and credit
hours; (2) what guidance the accrediting agencies provide to peer
reviewers to assess program length and credit hours when evaluating
institutions; and (3) what documentation the accrediting agencies
maintain to demonstrate how they evaluate institutions' program length
and credit hours. We found that none of the accrediting agencies
defined a credit hour and none of the accrediting agencies provided
guidance on the minimum requirements for the assignment of credit
hours. At two of the accrediting agencies (HLC and Middle States), we
were told that student learning outcomes were more important than the
assignment of credit hours; however, these two accrediting agencies
provided no guidance to institutions or peer reviewers on acceptable
minimum student learning outcomes at the postsecondary level. The
following is a summary of our results at each accrediting agency:
Southern Association of Colleges and Schools Commission on Colleges
SACS provides guidance to institutions regarding program
length and the required number of credit hours; however, it does not
provide guidance on the minimum requirements for the assignment of
credit hours or the definition of a credit hour;
SACS provides guidance to reviewers regarding the
assessment of program length, but does not provide reviewers guidance
regarding the assessment of credit hours; and
SACS maintains documentation to demonstrate that it
evaluates institutions' program length and credit hours.
Middle States Association of Colleges and Schools
Middle States does not have minimum requirements specific
to program length and does not have minimum requirements for the
assignment of credit hours; and
Middle States senior staff stated that their main focus
was on student learning outcomes; however, we did not find that Middle
States provided any guidance to institutions and peer reviewers on
minimum outcome measures to ensure that courses and programs are
sufficient in content and rigor.
Higher Learning Commission of the North Central Association of Colleges
and Schools
HLC's standards for accreditation do not establish the
definition of a credit hour or set minimum requirements for program
length and the assignment of credit hours;
HLC does not provide specific guidance to peer reviewers
on how to evaluate the appropriateness of an institution's processes
for determining program length and assigning credit hours or on the
minimum level of acceptability for accreditation when evaluating these
processes;
HLC maintains self-studies and team reports as
documentation of its evaluation of institutions' program lengths and
credit hours, but the amount of information related to program length
and credit hours that institutions and peer reviewers included in these
respective documents varied; and
HLC determines whether institutions assess student
learning outcomes; however, it does not define a minimum threshold for
when the measures of achievement for student learning outcomes indicate
poor educational or programmatic quality.
While conducting our inspection at HLC, we identified a serious
issue that we brought to the Department's attention through an Alert
Memorandum, HLC evaluated American InterContinental University (AIU)--a
for-profit institution owned by Career Education Corporation (CEC)--for
initial accreditation and identified issues related to the school's
assignment of credit hours to certain undergraduate and graduate
programs. HLC found the school to have an ``egregious'' credit policy
that was not in the best interest of students, but nonetheless
accredited AIU. HLC's accreditation of AIU calls into question whether
it is a reliable authority regarding the quality of education or
training provided by the institution. Since HLC determined that the
practices at AIU meet its standards for quality, without limitation, we
believe that the Department should be concerned about the quality of
education or training at other institutions accredited by HLC. Based on
this finding, our Alert Memorandum recommended that the Department
determine whether HLC is in compliance with the regulatory requirements
for accrediting agencies and, if not, take appropriate action under the
regulations to limit, suspend, or terminate HLC's recognition by the
Secretary. The Department initiated a review of HLC and determined that
the issue identified was not an isolated incident. As a result, the
Department gave HLC two options for coming into compliance: (1) to
accept a set of corrective actions determined by the Department; or (2)
the Department would initiate a limitation, suspension, or termination
action. In May 2010, HLC accepted the Department's corrective action
plan.
Current Status
With the explosion of on-line postsecondary education and
accelerated programs, the value of a credit hour becomes increasingly
important to ensure that students and taxpayers get what they are
paying for. Currently, the Federal student aid programs are primarily
dependent on the credit hour for making funding decisions, as are other
forms of aid, including state student aid programs and certain programs
administered through the U.S. Department of Veterans Affairs. To help
address this, the Department will soon be issuing a definition of a
credit hour through a notice of proposed rulemaking that we understand
will be issued on June 18. Once a final rule is adopted by the
Department, we will be closely watching its implementation and
evaluating whether the definition of a credit hour is effective in
protecting students and taxpayers.
Closing Remarks
We view the recognition of accrediting agencies by the Secretary as
the primary tool available to the Department for ensuring that students
receive value for the taxpayer investment in postsecondary education.
As the Department is prohibited from developing minimum regulatory
criteria for an accrediting agency's standards for accreditation or
making determinations on curriculum and educational quality, it is not
unreasonable for the Department to expect an accrediting agency to have
developed its own minimum standards.
On behalf of the OIG, I want to thank you for the support Congress
has given to this office over the years. We look forward to working
with the 111th Congress in furthering our mutual goal of protecting
students and serving the taxpayers.
This concludes my written statement. I am happy to answer any of
your questions.
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[Whereupon, at 11:24 a.m., the subcommittee was adjourned.]