Wow – how time flies! The March meeting seems barely behind us, but already it is July and the September ASPA meeting is just ahead.

During my first year as Chair of the ASPA Board, I have had two goals. First, to increase the number of members so that ASPA is truly a united voice for specialized and professional accreditation, and second, to increase and improve the communication between accreditors and institutions.

Thanks to the hard work of many people, we've made real strides in increasing membership. With the addition of the American Board for Accreditation in Psychoanalysis, Inc., the American Veterinary Medical Association, the International Fire Service Accreditation Congress, and the National Architectural Accrediting Board, we expect to have 46 ASPA members for the 1999-2000 fiscal year, up from 39 members only two years ago. Not only are we now better positioned to speak for specialized and professional accreditation, but the increased membership brings the additional resources we need in order to hold down increases in dues while accomplishing more.

Stan Ikenberry, president of ACE, participated in the ASPA meeting in March. Those of you who heard him know that this was an important step in increasing communication with institutions. We need to follow-up on his observations and suggestions and will be doing so in September in two ways. On Monday, we will have a panel of persons who recently went through site visits. I will be interviewing then about institutional views of the self-study process. Then, on Tuesday, the professional development committee has planned a session that will include presidents and other panelists who will discuss "institutional autonomy." Both should be lively sessions!

I hope to see y'all in Atlanta. _

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During Monday’s current events segment, Carol Bobby, CACREP, will help attendees discuss Strategies for Change and Improvement: the Report of the Task Force on Accreditation of Health Professions Education. The report was released and widely distributed in late June 1999. Call the UCSF Center for the Health Professions at 415/ 476-8181 or download the report for free from their website at http://futurehealth.ucsf.edu.

Also on Monday, "Let’s Look at the Self-Study" is the topic of the Strategies for Improving Accreditation segment. In "So Tell Me What You REALLY Think," David Werner, ASPA chair, will interview a panel of institutional representatives who have had first-hand experience with specialized accreditation self-studies.

Next, Milton Blood, AACSB, and a panel of ASPA accreditors will talk with you about self-study in the context of "Studying Our Selves: Re-Thinking Why We Do What We Do."

Tuesday’s Professional Development program also is linked to the ASPA Code. The morning session on "Respecting Institutional Autonomy" will include institutional, regional and specialized perspectives and some interactive exercises.

"A Fresh Look at Site Visitor Training" will emphasize the generic, transferrable aspects of two very different approaches to training. The separate schedule (enclosed with this mailing) includes more detail.

Member Discount: ASPA members who register for the full meeting with payment before August 20, 1999 are eligible to deduct a $50.00 early bird discount from the full meeting fees. Non-member accreditors and guests may also register for ASPA meetings which are open, except for a Sunday afternoon members-only session and a short executive session for the Board of Directors.

Book Your Hotel Room Now: The Ritz-Carlton hotel is located in downtown Atlanta at 181 Peachtree Street, NE, Atlanta, GA 30303. To reserve a room at the $140/night ASPA group rate, call (404) 659-0400 prior to the room release date which is August 26, 1999. If you wish to extend your stay and the hotel has rooms available, the ASPA rate will be in effect three days before and after the meeting. _

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As much as we might wish it were otherwise, the collegial process of self-improvement can result in a lawsuit. Accrediting agencies confer a status that frequently is the key to valuable resources for a school or program – eligibility for Title IV funds, access to state licensure, or professional standing and prestige. It is unsurprising, therefore, that institutions or programs denied accreditation may resort to the courts to challenge an adverse action. Unless an accrediting agency has properly positioned itself, it could face expensive and burdensome litigation, the potential for judicial intrusion into the accreditation process and, at the worst, a court overturning the agency’s decision.

The good news is that the legal steps necessary to help an accrediting agency to defend itself in litigation are consistent with good accreditation practice. Indeed, they may even help an agency avoid a legal challenge. What are the key questions to ask in assessing the legal risks that an agency may face?

An accrediting agency must first and foremost follow its own established procedures for conducting an accreditation review. While this may seem elementary, there is often a tendency to take procedural shortcuts when a review appears to be heading for an adverse result. The courts give accrediting agencies some latitude to interpret their own procedures and to fill in procedural gaps. But, nothing is more likely to invite a court challenge or an unfavorable judicial decision than a material failure to follow the agency’s own procedures.

In addition to following its own procedures, an accrediting agency must give a school or program notice of areas where it may be failing to meet accrediting standards and a meaningful opportunity to respond before adverse action is taken. This is the core meaning of "due process." Yet, accreditors sometimes resist this step as time-consuming and unnecessary. "Due process," however, is your friend in convincing a court that a thorough and fair review has occurred.

Fortunately, the trend of the case law on judicial review of accreditation decisions has been for the courts to defer strongly to the judgments of accreditors and to confine their review to the record assembled during the accreditation review. The clear implication is that an accreditation decision is unlikely to be reversed on the merits if the decision is tied to the agency’s standards and facts have been assembled and cited which plausibly support the conclusion that accrediting standards have not been met.

If the first three questions have been answered favorably, there will be a high, if not insuperable, hurdle for any potential plaintiff to surmount. Nonetheless, substantial allegations of bias, conflict of interest, or anti-competitive conduct may open the door to a more searching judicial examination of the accreditation decision.

The time to be asking these four questions is not when a decision has already been reached and suit is about to be filed, but at an early stage of the accreditation process. At that point, issues can be spotted and appropriately dealt with so that, if the considered judgment of the agency is to reach an adverse decision, the agency will be in the best possible position to minimize the disruption and cost of litigation and to have its judgment vindicated in the courts.

Confidentiality Versus Public Disclosure of Information

Opposing views on disclosure of information about accredited institutions and programs were presented during a panel at the March 30, 1999 ASPA meeting. Bernard Fryshman of the Association of Advanced Rabbinical and Talmudic Schools (AARTS) and I spoke in support of confidentiality, while Suzanne Shaw of the Accrediting Council on Education in Journalism and Mass Communications (ACEJMC) spoke in support of public disclosure of accreditation information. Here are some of the points made by the panelists.

In Support of Confidentiality – Supporters of confidentiality in the accreditation process share the philosophy that accreditation requires a mutual commitment from the accrediting agency and the school so as to interact with candor, cooperation, integrity, and trust. This philosophy of adhering to the stated "rule of the game" is reflected in the ASPA Code of Good Practice, which expects accreditors to demonstrate integrity through the use of policies, procedures, and operations regarding confidentiality. This approach requires that everyone involved in the accreditation process, council members, staff, consultants, and on-site reviewers, must respect confidentiality as a principle of good practice.

The ASPA Code of Good Practice states that an accrediting agency must "pursue its mission, goals and objectives in a trustworthy manner." In my view, this lends further support to confidentiality and suggests that an accrediting agency must pursue its mission and conduct its operations in a manner that fosters communication privately and not for public disclosure. To operationalize this principle, the public should have only limited access to documents, such as self-studies, summary reports of on-site reviews, deliberations on accreditation decisions, and correspondence related to accreditation decisions. Only information that is procedurally identified as being public or that legally must be released should be disclosed.

Accreditors have a right to expect that schools will honestly identify their strengths, weaknesses, and degrees of success in achieving stated outcomes when conducting self-evaluations. Openness about these matters requires that schools be candid and cooperate with accreditors if accreditation is to be effective. Because self-evaluation is highly regarded as the heart of accreditation, we can only hope to ensure educational quality by honoring confidentiality.

Fryshman urged participants at the ASPA meeting to consider confidentiality as the foundation of collegiality, a basic characteristic of accreditation. "We are not regulators and we must have the cooperation of our schools to do an effective job," he said, adding that "very few schools would be openly communicative with visitors if they knew the limitations they acknowledged could reach the public."

Furthermore, Fryshman noted that "Accreditation has limitations. Disclosure without carefully educating the public as to our limitations and our strengths can be misleading and unfair. As is the case in all higher education, accreditors make judgments; the public does not always understand this."

In Support of Public Disclosure – Shaw presented a different point of view in speaking in support of public disclosure of accreditation proceedings. As an example, she cited the positive experience of ACEJMC in making public its accreditation processes. Since 1989, visiting team reports and all meetings of the agency, including accreditation meetings, have been open to the public.

According to Shaw, an important benefit of publicly disclosing accreditation information is greater understanding of accreditation and the process that leads to accreditation decisions. Both new and experienced educational administrators attend ACEJMC meetings to learn about accreditation issues and become better prepared for visits. According to Shaw, "Open meetings clearly improve the public’s understanding of accreditation and the importance of the process."

Shaw cautioned the audience that open meetings can also reveals flaws in the accreditation process. If a team report is poorly written and the questions indicate that they are, it sometimes can be difficult for the team chair who presents the report. However, the ACEJMC has found that the benefits of full public disclosure outweigh any disadvantages.

Summary – Although the panelists presented persuasive arguments on both sides of the confidentiality versus public disclosure issue, I believe the debate will continue. These two fundamentally different philosophical convictions about accreditation may make it impossible to ever achieve consensus about any one "right" approach. Each accrediting organization will need to find the balance that works best for its field. And, consistent with the part of the ASPA Code that calls for an accrediting organization to "exhibit integrity and professionalism in the conduct of its operations," any anticipated change in how an accreditor views this important concept should be discussed early on with the accredited schools and programs. _

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The Higher Education Act of 1965 (HEA) is required by law to be reauthorized every five years. The 1998 Amendments were enacted October 1, 1998. In late December 1998, the Secretary of Education announced intent to establish four negotiated rule-making committees to draft proposed regulations implementing Title IV of HEA. These four committees were supported by several subcommittees, one of which was the Accreditation Subcommittee (ASC). This report relates to the efforts of the ASC and the rule-making committee to which it reported. The ASC was appointed by the Department of Education. The accreditation representatives on the ASC included:

• Randall Bell – Accrediting Association of Bible Colleges
• Steve Crow – (North Central Association) representing the Council of Regional Accrediting Agencies
• Marilyn Fay – ASPA
• Gregory Fusco – CHEA
• Mary Beth Kait – Middle States Association
• Carol Luthman – Southern Association
• Roger Williams – Accrediting Commission of Career Schools and Colleges of Technology

The ASC had five three-day meetings in Washington, DC between February and May 1999. The committees were governed by a "consensus" protocol. To achieve consensus, all participants had to be in agreement on the proposed language (each individual had veto power). If consensus had not been reached, the department would have determined the proposed language to be published in the NPRM.

Part of the protocol was an understanding that those involved in the process would not speak negatively about the published draft. Adherence to the protocol does not preclude a report such as this which highlights changes and proposed additions or deletions. Thus, the published proposed regulations represent consensus among the organizations and groups represented on the ASC and by the approximately 35 members of the rule–making committee to which it reported.

If you are familiar with the current regulations, you will notice a striking change in format when reviewing the notice of proposed rule making (NPRM) which was published in the Federal Register on June 25, 1999. Presidential order required that the new regulations be written in "Plain Language." While arguably an improvement to facilitate understanding, the ASC was concerned and made significant effort to ensure that the translation to plain language did not, in itself, alter existing meaning or intent.

SUBPART A – GENERAL (602.1 through 602.3) Contains basic information regarding the purpose of the regulations and applicable definitions.

New definitions are added for: 1) Distance Education, 2) Scope of Recognition and 3) Senior Department Official. Substantive changes are proposed for the current definitions of 1) Adverse Accrediting Action and 2) Branch Campus. The proposed change to adverse accrediting action removes from the current definition the final clause stating that probation or show cause is not adverse unless so defined by the accrediting agency. The NPRM preamble states that interim actions such as probation or show cause were removed to limit the amount of time a noncompliant program/institution could retain accreditation – see section 602.20 in the draft regulations. Branch campus is discussed in Section 602.22 below.

SUBPART B – THE CRITERIA FOR RECOGNITION – (602.10 through 602.28)

BASIC ELIGIBILITY REQUIREMENTS – (602.10 through 602.13) This section groups the current recognition requirements found in 602.1(b), 602.20 and 602.22.

The 1998 Amendments replaced "accrediting agency approval" with "accrediting agency recognition" and generally refer to agencies as "recognized" rather than "approved." This emphasizes agencies demonstration to the Department that they are in fact reliable authorities regarding the quality of education provided by the institutions/programs they accredit.

ORGANIZATIONAL AND ADMINISTRATIVE REQUIREMENTS – (602.14 and 602.15) This section includes 602.3 and 602.21 of the current regulations.

There are no significant changes to either of these sections in the proposed regulations. There has been some combining and rewording to simplify, eliminate redundancy or improve clarity.

REQUIRED STANDARDS AND THEIR APPLICATION – (602.16 through 602.21 and partially, 602.23)

602.16 – The list of required accreditation standards found currently in 602.26(b) are revised and reordered to conform to Congressional directive that success with respect to student achievement be first on the list. Other changes eliminate the standard related to tuition and fees; inclusion of default rates in the standard related to institutions’ compliance with their Title IV responsibilities rather than in a separate standard; and combine into one, the two standards dealing with aspects of program length.

602.17 – No significant changes, this section repeats the current 602.24(b)(1) and 602.24(b)(2).

602.18 – No significant changes, this section repeats the current 602.23(b)(3), 602.23(b)(4) and 602.26(d).

602.19 – No significant changes, this section repeats the current 602.24(b)(4), and 602.24(5).

602.20 – No significant changes, this section repeats the current 602.26(c).

602.21 – This section replaces the current 602.23(b)(5) and 602.23(b)(6). There was wide spread concern among the rule-makers that the use of the terms "validity" and "reliability," when applied in the context of accrediting agency standards, are frequently misunderstood. Rule-makers attempted to strike a balance between overly prescriptive regulation of agency standards and processes and a requirement that looks only to the agency’s review process and not to the substance of the standards. As proposed, the burden is placed on agencies to demonstrate that their standards are adequate to evaluate quality and relevant to the needs of students. At the same time, the proposal eliminates any implication that the review of standards must take the form of a statistical analysis.

REQUIRED OPERATING POLICIES AND PROCEDURES – (602.22 through 602.28) This section includes 602.4, 602.25, 602.27, 602.28, 602.29 and 602.30 of the current regulations.

602.22 – Repeats 602.25 of the current regulations. The redefining of "Branch Campus" to match the narrow definition in 34 CFR part 600 continues to require site visits to all locations that meet this definition. Proposed regulations provide relief from the burden of the current requirements for site visits to other newly established locations offering 50% or more of an educational program by subjecting those locations to evaluation under an agency’s substantive change policies. The rationale for this requirement is the need for an agency to monitor an institution/program very closely as it begins to operate more than the main campus. The need for such close monitoring diminishes once the institution/program has gained experience in establishing effective systems for the administration of multiple sites. Additional locations must also be site visited within 6 months of establishment for other situations and concerns which are delineated in the proposal. Beyond these situations that require agencies to conduct site visits to each additional location an institution/program establishes, the proposal provides agencies with flexibility in deciding when to conduct site visits to additional locations. Agencies’ substantive change policies are no longer required to address changes from credit to clock hours or substantial increase in the length of the program.

602.23 – While mandatory unannounced site visits for vocational education have been eliminated, agencies may establish any operating procedures deemed appropriate including unannounced inspections.

602.24 – In regard to teach-out agreement, the proposed regulations clarify that the role of the accrediting agency is to ensure that the teach-out institution has the necessary experience, resources and support services to provide an educational program that is of acceptable quality, is reasonably similar in content, structure and scheduling to that provided by the closed institution and can provide students access to the program and services without requiring them to move or travel substantial distances. The proposed regulations also require an agency to work with the Department and the appropriate State agency, to the extent feasible, to ensure that students are given reasonable opportunities to complete their education without additional charge.

602.26 – Repeats the current 602.29 with one addition. Proposed regulations require an agency to provide the appropriate State licensing or authorizing agency and appropriate accrediting agencies written notice of any final adverse action at the same time it notifies the institution/program of the decision and to provide notice to the public within 24 hours of notifying the institution/program of the decision. Web site notice meets this requirement.

SUBPART C – THE RECOGNITION PROCESS – (602.30 THROUGH 602.36) This section basically contains the accreditation process found in Subpart C of the current regulations.

APPLICATION AND REVIEW BY DEPARTMENT STAFF – (602.30 and 602.31) This section repeats current 602.10 and 602.11. Three changes are proposed.

First, staff is allowed to return the application of an agency if the agency fails to meet one or more of the basic eligibility requirements contained in 602.10 through 602.13. Second, in regard to third party comments, the staff will consider and forward to the National Advisory Committee on Institutional Quality and Integrity (NACIQI) for consideration, only those written third party comments received by the deadline established by the Department. This codifies current Department practice. The third, concerns current 602.11 requiring the staff to send its analysis of an agency’s application at least 45 days before a NACIQI meeting and allows the agency the right to request the NACIQI to defer action if the Department fails to meet the 45 day deadline. In the proposed 602.31, the agency would forfeit its right to request deferral in those situations in which the Department’s inability to meet the deadline was due to the agency’s failure to respond in a timely manner to departmental requests.

REVIEW BY NACIQI – (602.32 and 602.33) This section includes 602.12 and that portion of 602.13(b) dealing with an appeal of a NACIQI recommendation. Two significant changes address what has been called the "12 month rule." The 1998 Amendments require the Secretary to limit, suspend or terminate (LST) an agency’s recognition, after notice and opportunity for hearing, if the Secretary determines that an agency has failed to perform effectively in respect to the criteria for recognition or is otherwise not in compliance with the criteria. Alternatively, the Secretary may require the agency to bring itself into compliance within a timeframe specified by the Secretary. The timeframe may not exceed 12 months. The 1998 Amendments also specify that the Secretary must, after notice and opportunity for hearing, LST agency recognition if the agency fails to bring itself into compliance within the timeframe specified by the Secretary, unless the Secretary extends the timeframe for good cause.

Proposed regulations make two changes to the NACIQI procedure to reflect this "12 month rule." First, if the NACIQI, as part of its review of a recognized agency for continued recognition, determines that the agency fails to meet the criteria for recognition or is ineffective with respect to the criteria, 602.32(b) of the proposed regulations calls for the NACIQI to take one of two actions. The NACIQI would recommend either (1) denial of recognition, or (2) deferral of a decision on recognition for a period not to exceed 12 months, during which period the agency would have to come into compliance or face LST action at the conclusion of the specified timeframe. Second, the proposed regulations delete 602.12(c)(2) of the current regulations, which allows the NACIQI to recommend recognition even if the agency. fails to comply with all of the criteria for recognition. Additionally, it has been Department practice, except in cases of contested appeals of the NACIQI recommendations, for the senior Department official to transmit the NACIQI recommendations to the Secretary along with his/her own recommendations and comments on the NACIQI recommendations. Proposed 602.32(d) and 602.34(b) reflect this practice.

REVIEW AND DECISION BY THE SECRETARY – (602.34 through 602.36) Includes the current 602.15 and the portion of 602.13 that deals with the Secretary’s decision. The only significant proposed change concerns the "12 month rule" and is consistent with the proposed language in 602.32 and 602.33. Proposed 602.35 differs from current 602.13(e) which defines the scope of recognition the Secretary grants to an accrediting agency and should be read in conjunction with the proposed addition of a new definition of "scope of recognition"in 602.3.

SUBPART D – LIMITATION, SUSPENSION AND TERMINATION PROCEDURES – (602.40 through 602.43) Includes current 602.14 and deals with the "12 month rule" and hearing procedures. This section should be read in conjunction with 602.32 through 602.36.

SUBPART E – DEPARTMENT RESPONSIBILITIES – (602.50) Repeats current 602.5 with no significant changes.

OTHER CHANGES – To comply with some terminology changes to the Higher Education Act resulting from the 1998 Amendments, "State Postsecondary Review Entities" is replaced with "State licensing or authorizing agencies." "Standards" is used rather than "Criteria" or "Standards and Criteria" in referring to the requirements an accrediting agency sets for institutions/programs to become accredited or pre-accredited.

Cynthia notes: ASPA very much appreciated the opportunity to be represented in the rule-making process and owes Marilyn Fay a debt of gratitude for her diligence and excellent attention to detail during the process. Consistent with the protocol noted earlier, ASPA will not be submitting comments on the proposed regulations. I urge all members of ASPA to read the NPRM text with care and to comment as appropriate on behalf of your own organizations. I’d view it as a gracious gesture if you’d send a copy of your comments to the ASPA office.

ADDRESS to Use for COMMENTS: Address all comments about the proposed regulations to Karen W. Kershenstein, U.S. Department of Education, 400 Maryland Avenue, SW., room 3915, ROB-3, Washington, DC 20202-5244. If you prefer to comment by e-mail, use the following address: karen_kershenstein@ed.gov There is a 60 day period for comments which must be received on or before August 24, 1999. _

Spring 1999 Highlights

ASPA’s new treasurer and accreditation Board member is Olive Kimball, NAACLS: Clinical Laboratory Science. Olive will join academic representative: T. Sterling Wetzel, School of Accounting, Oklahoma State University and practitioner representative: Barbara Brown Robinson, an independent consultant, counseling, from Annandale, VA. We look forward to officially welcoming all three of our new board members at the fall meeting in Atlanta.

Kudos to the ProD committee for fast-paced, well-planned and informative session. _

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Your accreditation governing board wants to know what other accrediting organizations are doing on Topic X, Y or Z – where do you turn to find the information? You want to assess the pros and cons of a "great" idea before you present it to your board – what’s the fastest way to get some reliable feedback? You need to find out how your colleagues handle Topics A, B, and C in their accreditation standards, but you don’t have time to ask them to mail you hard copy – how do you meet your deadline? You’re a new accreditation director and want to be sure your group is headed in the right direction – who do you talk to? You need to network or find a consultant or fill a sudden staff opening (or are looking for a job in accreditation) or you need assorted other things – where do you turn?

ASPA has assisted with all these types of situations. The ASPA web-site has hot-links to member web pages where it is often easy to find fast, accurate answers to specific questions about standards or process. Posting a message to the ASPA E-Mail list (accessible via the ASPA web site) offers another quick and easy way to gather information on a particular topic. A telephone call to the ASPA office often results in consultation on good practices and pointers toward other resources.

These (and other) services are supported by your ASPA membership dues. So, please don’t forget to say "thank you" to your fellow members the next time ASPA helps you get answers to your accreditation questions. _

Cynthia A. Davenport, Executive Director, ASPA
1020 W. Byron Street - Suite 8G
Chicago, IL 60613-2987

Phone: 773/525-2160
Fax: 773/525-2162
E-mail: aspacd@aol.com
Web: www.aspa-usa.org

Newsletter Edited/Produced in January and July by: Cynthia A. Davenport