April 13, 2021

Volume XI, Number 103

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April 13, 2021

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April 12, 2021

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U.S. Department of Education Extends and Clarifies COVID-Related Waivers for Accrediting Agencies

In a recent Federal Register notice published December 11, 2020, the U.S. Department of Education announced a series of continuing waivers and modifications of statutory and regulatory provisions related to the COVID-19 interruption. These modifications largely continue certain additional flexibilities available to recognized accrediting agencies and to Title IV-participating institutions. Except where specified, these regulatory waivers are available for the duration of the COVID-19 national emergency declaration and for 180 days following the date on which that declaration is rescinded. (The national emergency declaration was made on March 13, 2020 and has no specified end date.) Important regulatory flexibilities applicable to accrediting agencies that were extended or clarified include:

Flexibilities Relating to Distance Education

Typically, an accrediting agency must set out standards that effectively evaluate the quality of education offered via distance education, correspondence courses, or direct assessment, if the agency evaluates such programs or institutions within its scope of recognition. The Department is continuing its waiver of this requirement for accreditors, in order to permit accreditors to waive their distance education review requirements for the institutions and programs they accredit, as the institutions work to accommodate students whose enrollment is interrupted due to COVID-19. Note that this waiver is specifically limited to distance education offerings that arise out of an interruption in a student’s attendance due to the COVID-19 pandemic. (See 34 CFR 602.16.)

Agencies may also develop, on an expedited basis, temporary standards for the approval of distance education programs or courses, including when an agency did not previously have distance education within its scope, or when an accredited institution did not previously offer the distance education modality. However, if the agency is accrediting clock-hour programs for which distance education is permitted to meet instructional hours for professional licensure board requirements, the agency must continue to meet the existing regulatory requirements specified at 34 CFR 602.21(c).

In addition, the Department is continuing to waive the requirement that an agency must notify the Secretary prior to expanding its scope of recognition to include institutions and programs that offer distance education. During the pandemic, an accrediting agency does not need to expand its scope in order to approve distance education offered by its member programs or institutions. (See 34 CFR 602.27(a)(4).)

Flexibilities Relating to Required Site Visits

The Department is continuing to waive the requirement for in-person on-site visits in order for an accrediting agency to determine an institution’s or a program’s compliance with its standards. Instead, such site visits may be conducted “virtually,” whether at regularly scheduled intervals or in connection with a renewal of accreditation. The Department emphasizes that a virtual visit should “rely on an engaged, interactive format (e.g., telephonic meetings, video conference calls),” and should not occur exclusively through the exchange of documents, policy reviews, or email correspondence. The Department also notes that in connection with this regulatory waiver, if a virtual visit is conducted in order to award accreditation or pre-accreditation, it will continue to require an in-person visit, although that visit may be limited in scope, duration, and number of individuals involved. This “limited in-person site visit” should occur “as soon as practicable,” and does not need to review every element of the virtual visit, nor must it include the full team from the virtual visit. In fact, a single site visitor may be engaged for this purpose. (See 34 CFR 602.17(c).)

The Department also clarified that it is waiving the requirement that accreditors conduct certain on-site visits to additional locations or new branch campuses. Specifically, on-site visits to approved additional locations at regular intervals, or within six months of the addition of a location (regardless of the total number of locations), may be conducted virtually during the effective period of these regulatory waivers. The same is true for a new branch campus of an existing institution, which must usually receive an on-site visit within six months of its establishment. Like the virtual site visits described above, these visits must “rely on an engaged, interactive format” and should not rely exclusively on exchanges of records, policies, or documents. (See 34 CFR 602.22(d), (f)(1), and (f)(2), and 602.24(b).)

Agencies may also continue to adopt “temporary virtual site visit policies,” with the approval of the agency’s board or other decision-making body without public comment or a vote of their full membership. However, if the agency decides to make virtual site visits a permanent feature of its ongoing evaluation protocols and regulatory compliance processes, after the COVID-19 national emergency declaration is rescinded, it must adhere to applicable statutory and regulatory requirements and follow existing procedural requirements. (See 34 CFR 602.19(a).)

Flexibility Relating to Institutional Changes of Ownership

The Department has also announced continuing flexibilities in connection with changes of ownership (COO). Like branch campuses and additional locations, accreditation site visits in connection with changes of ownership, which must typically be conducted no later than six months following the change of ownership or control, may now be conducted virtually. They must rely on the same “engaged, interactive” formats described above. However, even if an accreditor chooses to conduct its COO site visit within six months in a virtual format, it must still conduct an in-person follow-up visit within 90 days following the date on which the COVID-19 national emergency declaration ends. Note that this is a more demanding timeline than exists for the other regulatory flexibilities described here, which continue for 180 days after the end of the national emergency. As a result, for any COO site visit that was conducted virtually during the pandemic, there must be a follow-up in-person visit within three months of its declared end. (See 34 CFR 602.24(b).)

Extended 5-Year Pre-accreditation Period

Finally, the Department is waiving, for the duration of the national emergency declaration and 180 days after its conclusion, the limitation of pre-accreditation status to five years. Accrediting agencies may continue to conduct and complete their assessment of such an institution, for a final accreditation determination, even if this extended review results in a pre-accreditation status lasting over five years. (See 34 CFR 602.16(a)(2)(ii).)

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© 2021 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume X, Number 357
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About this Author

John Przypyszny, Drinker Biddle Law Firm, Public Education Attorney
Partner

John R. Przypyszny counsels institutions of higher education, education companies as well as accrediting agencies on the broad range of legal issues and education law related issues that impact their institutions and businesses on a day-to-day basis. He advises clients on education law matters involving the U.S. Department of Education, accrediting bodies, state agencies and other government regulators. He also has extensive experience advising institutions of higher education on the statutory and regulatory requirements of federal student financial aid...

(202) 842-8858
Jonathan Tarnow, Education and Government affairs lawyer, Drinker Biddle
Partner

Jonathan D. Tarnow advises clients on a wide range of education law matters involving the U.S. Department of Education, accrediting bodies, state agencies and other government regulators. He has extensive experience advising public, non-profit and proprietary institutions of higher education on the statutory and regulatory requirements of federal student financial aid programs under Title IV of the Higher Education Act, and has represented institutions in Title IV compliance reviews and audits, including administrative hearings and appeals related to...

(202) 354-1357
Sarah Pheasant, Education and Compliance Lawyer, Drinker Biddle
Associate

Sarah L. Pheasant advises clients on various aspects of education law and regulatory compliance, including issues pertaining to the Higher Education Act, Title IV federal student aid programs, state educational licensing laws and the accreditation of postsecondary institutions. She has helped to advise non-profit and for-profit educational institutions and private investors on complex transactions, including changes of ownership involving institutions of higher education.

Before joining Drinker Biddle, Sarah handled a diverse range of litigation,...

(202) 230-5675
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