Negotiated Rulemaking 101

Late in 2018, the Trump administration announced that it would convene a negotiated rulemaking committee to rewrite the regulations related to accreditation and several other higher education issues. Negotiations began earlier this month. These are the regulations to which CEPH, as a federally recognized accreditor, must respond. When programs and schools ask us why certain things are required (think site visits, self-studies, and collection of data on student outcomes) and we respond, “because the Department of Education requires it,” these regulations are the requirements to which we are referring.

Negotiated rulemaking is a process that formally engages affected stakeholders in negotiations about federal regulations. Not all government agencies use the process – for most who do it is voluntary – but negotiated rulemaking is currently required for regulatory development under the Higher Education Act. The process is a tricky one. The Education Department (ED) appoints negotiators (ED also has its own negotiator at the table) and determines the package of issues to negotiate, however disparate they may be. The committee, made up of leaders from many sectors (for example, higher education institutions, accreditors, states, and student advocates), must come to consensus on the package of issues proposed by the ED—or not. A single “no” vote given by any negotiator, including ED’s own representative on the panel, means that consensus has not been reached. If consensus is reached on the rules, the ED is obligated to publish those rules. If consensus is not reached, the ED may publish whatever rules it wishes – although we all hope that they are at least informed by the discussion.

Typically, negotiated rulemaking convenes when a new or reauthorized law is enacted, but the Higher Education Opportunity Act (published in 2009) has not changed. In this case, a change in administration (Obama to Trump) has prompted an effort to relook at interpretation of the law. I think it is safe to say that the emphasis has changed from consumer protection to deregulation.

I have been appointed to serve as the primary negotiator representing the interests of specialized and professional accreditors on the current Accreditation and Innovation Negotiated Rulemaking Committee. I am also the negotiator most interested in professional education in general – and, of course, my personal interest is in health professions education. A full list of negotiators, meeting locations, and federal register notice outlining the issues on the table are here.

There are 3- to 4-day meetings scheduled to be held once a month in January, February, and March. Our first meeting this month was cut short due to snow, but we did begin discussing the issues. A couple of issues to watch for programmatic accreditation (not necessarily public health, but potentially impacting other health-related accreditors) include overly restrictive regulatory proposals related to relationships of accreditors to their professional associations and the ED’s perception of “credential creep.” I will provide updates via Happenings as these issues are discussed further.

For the higher education media’s perception about what is most important, here are a couple of articles to orient you.

--Written by Laura Rasar King, EdD, MPH