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U.S. Department of Education

Staff Report
to the
Senior Department Official
on
Recognition Compliance Issues

RECOMMENDATION PAGE

1.
Agency:   Accreditation Commission for Education in Nursing (1952/2016)
                  (The dates provided are the date of initial listing as a recognized agency and the date of the agency’s last grant of recognition.)
 
2.
Action Item:   Compliance Report
 
3.
Current Scope of Recognition:   Accreditation of nursing education programs and schools, both postsecondary and higher degree, which offer a certificate, diploma, or a recognized professional degree including clinical doctorate, masters, baccalaureate, associate, diploma, and practical nursing programs in the United States and its territories, including those offered via distance education.
 
4.
Requested Scope of Recognition:   Same as above
 
5.
Date of Advisory Committee Meeting:   June, 2015
 
6.
Staff Recommendation:   The agency does not meet the requirements of sections 602.14(a) and (b) of the Secretary's Criteria for Recognition. Department staff is recommending termination of the agency's recognition.
 
7.
Issues or Problems:   It does not appear that the agency meets the following sections of the Secretary’s Criteria for Recognition. These issues are summarized below and discussed in detail under the Summary of Findings section.

-- The agency does not meet the requirements of this section of the criteria. Department staff is required to recommend the limitation, suspension or termination of the agency's recognition. [§602.14(a)]

-- The agency does not meet the requirements of this section of the criteria. Department staff is required to recommend the limitation, suspension or termination of the agency's recognition. [§602.14(b)]



EXECUTIVE SUMMARY

 
 

PART I: GENERAL INFORMATION ABOUT THE AGENCY

 
The National League for Nursing Accrediting Commission (NLNAC) is a national programmatic accrediting agency for postsecondary and higher degree nursing education programs. Its current scope of recognition is for the accreditation in the United States of programs in practical nursing, and diploma, associate, baccalaureate and higher degree nurse education programs, including those offered via distance education.

The agency’s accreditation is a required element enabling some of its practical nursing and all of its hospital diploma programs to establish eligibility to participate in the Title IV, HEA programs. Consequently, the agency must meet the requirements under the separate/independent provisions of the regulations, or must seek and receive a waiver of those requirements.

 
 
Recognition History
 
The National League for Nursing, precursor to the NLNAC, was first recognized as a national accrediting agency in 1952 for the accreditation of associate, baccalaureate, and higher degree nurse education programs. Its scope was later expanded to include diploma and practical nursing programs. Prior to the 1997 meeting, the accrediting functions of the National League for Nursing were formally transferred to the NLNAC.

The agency was reviewed again by the National Advisory Committee on Institutional Quality and Integrity (NACIQI) at its December 2006 meeting. The agency initially requested an expansion of scope for distance education, but withdrew the request in October 2006. At the December meeting, the NACIQI determined that the agency was in full compliance with the Secretary’s criteria. The Secretary agreed with the NACIQI recommendation, and the agency was granted a five-year period of recognition. In June of 2008 the agency again appeared before the NACIQI for an expansion of scope to include distance education and was granted the request.

At the NACIQI Spring 2012 meeting the National Advisory Committee recommended to grant the agency's request to expand its scope to include the accreditation of clinical doctorate educational programs. It also recommended to continue the agency's recognition and require the agency to come into compliance within 12 months, and to submit a compliance report that demonstrates the agency's compliance with the following issues:

•The agency must demonstrate that it satisfies the "separate and independent requirements" (see 602.14(b)). [602.14(a)]

•The agency must revise its by-laws to be compliant with the Secretary's "separate and independent" definition. [602.14(b)]

•The agency must provide further information and documentation regarding training it provides for public representatives serving on its appeals panel on the agency’s standards, policies and procedures. [602.15(a)(2)]

•The agency must amend its definition of distance education to include that technology is used to support regular and substantive interaction between the instructor and the students. [602.16(b)(c)]

•The agency must clearly define in its substantive change policy under what conditions/situations it would require a program to undergo a new comprehensive evaluation and provide documentation of its application of its policy. [602.22(a)(3)]

•The agency must amend its policy to include that, in the absence of official comments from the program; the agency will provide evidence that the affect program was offered the opportunity to provide official comment. The agency must also provide documentation of its timely provision of the brief statement and program's comments to the Secretary, the appropriate state licensing agency and the public. [602.26(d)]

The agency was last reviewed by the NACIQI at its June 2014 meeting. ACEN was granted an extension of its recognition, for good cause, for a period of six months and that the agency submit a report demonstrating its compliance with the cited criteria within 30 days of expiration of the six-month period, with reconsideration of recognition status thereafter, including review of the report and appearance by the agency at a NACIQI meeting to be designated by the Department. The agency's report must include a completed plan and timeline toward achieving full compliance, any agreements made between ACEN and NLN that have been developed, and By-Laws addressing the deficiencies under 600.14(a) and (b) which precluded NLN involvement and the impingement on the agency’s independence going forward. The agency's compliance report is the subject of this analysis.


PART II: SUMMARY OF FINDINGS

 
§602.14 Purpose and organization

(a) The Secretary recognizes only the following four categories of agencies:

The Secretary recognizes...

(1) An accrediting agency

(i) Has a voluntary membership of institutions of higher education;

(ii) Has as a principal purpose the accrediting of institutions of higher education and that accreditation is a required element in enabling those institutions to participate in HEA programs; and

(iii) Satisfies the "separate and independent" requirements in paragraph (b) of this section.

(2) An accrediting agency

(i) Has a voluntary membership; and

(ii) Has as its principal purpose the accrediting of higher education programs, or higher education programs and institutions of higher education, and that accreditation is a required element in enabling those entities to participate in non-HEA Federal programs.

(3) An accrediting agency for purposes of determining eligibility for Title IV, HEA programs--

(i) Either has a voluntary membership of individuals participating in a profession or has as its principal purpose the accrediting of programs within institutions that are accredited by a nationally recognized accrediting agency; and

(ii) Either satisfies the "separate and independent" requirements in paragraph (b) of this section or obtains a waiver of those requirements under paragraphs (d) and (e) of this section.

(4) A State agency

(i) Has as a principal purpose the accrediting of institutions of higher education, higher education programs, or both; and

(ii) The Secretary listed as a nationally recognized accrediting agency on or before October 1, 1991 and has recognized continuously since that date.

 
Department staff agrees, in part, that the agency has demonstrated that it has the requisite purpose required by 602.14(a) (3) (i), however, it also accredits one or more institutions that use its accreditation to establish eligibility for Title IV, HEA programs. Therefore; the Department cannot support the agency's position that "The Corporation's sole mission and purpose is to provide accreditation of nursing education programs ". The Department needs to continue to clarify that this can be their principal purpose, but it cannot be their sole purpose. The agency must understand that hospital based programs and their supporting administration comprise "institutions" for Title IV purposes if there is no other institution they are part of." The agency must also understand they need to accredit institutions to meet the federal link requirement, including applying the criteria related to institutional accreditation which the agency has done in its 2012 petition).
It is clear that ACEN accredits entities in hospitals, and in states, that would qualify as institutions for Title IV purposes, and they would have institutionally accredited them, and not programmatically accredited them.

The Department also remains seriously concerned regarding the relationship between ACEN (which, at that time, was called NLNAC) and the National League for Nursing (NLN). Specifically, that ACEN could be subjected to interference in its operations by NLN or any other organization or individual other than its own Board of Commissioners, and if so, would severely affect the agency's compliance with the Department's conflict of interest and separate and independent requirements. The Department especially noted that there was a provision in the NLNAC's by-laws that required the written consent of the NLN in order for the ACEN Board of Commissioners to amend the agency's by-laws in order to come into compliance with the separate and independent requirements. Furthermore, in the context of NLN's authority granted it by the by-laws, NLN could legally direct the operation of the ACEN’s accreditation business, leading the Department to conclude that the agency could not operate in the separate and independent manner required by the Title IV statute and regulations. As discussed in the 2014 report, it was determined that ACEN needed to amend its by-laws so that it demonstrates that it satisfies the "separate and independent requirements" (see 602.14(b)). However, the agency has not provided revised/amended by-laws and remains non-compliant with the requirements this section.

In addition, as noted in the 2014 compliance report, an amendment to the certificate and bylaws, made with the approval of NLN as required by New York law, could have addressed the deficiencies under 600.14 (a) and (b) if they had precluded NLN involvement and the impingement on the agency's independence going forward, notwithstanding the one-time involvement of NLN in approving those changes. As it stands the agency continues to be out of compliance; furthermore, Department staff is unaware of any progress between NLN and ACEN to address ACEN’s noncompliance with the separate and independent requirements.


Analyst Remarks to Response:
ACEN concedes that the Accrediting Commission and NLN have not been able to reach an agreement to revise/amend the Certificate of Incorporation and its By-laws established in the state of New York. The revisions would address those overbroad provisions in the NLNAC's by-laws that require the written consent of the NLN to amendments to the by-laws but that do not contain limitations on the consent requirements needed to ensure ACEN’s compliance with the Secretary's "separate and independent requirements". As mentioned in the staff analysis and noted in the 2014 compliance report, an amendment to the certificate and by-laws, made with the approval of NLN as required by New York law, could have addressed the deficiencies under 600.14 (a) and (b) if they had precluded NLN involvement and the impingement on the agency's independence going forward, notwithstanding the one-time involvement of NLN in approving those changes. Rather than coming into compliance, the agency appears to be requesting the Staff to find it out of compliance so as to force NLN’s hand or support its legal action in New York.

The agency also seems to insist that it needs to be able to make revisions to NLN's Certificate of Incorporation regarding NLN's involvement in the function of the Accrediting Commission. However, in dialogue with the Department NLN has made it clear that it would be willing to make the appropriate changes in its Certificate of Incorporation in order to come into compliance with the Secretary's "separate and independent requirements". In addition, Department staff has stated several times that the statute or regulations do not require Accrediting Commissions that are part of membership associations to be separately incorporated.

The agency appears to concede that it is not able to come to an agreement with NLN on an amendment to the bylaws that would satisfy both it and NLN and comply with the separate and independent requirement. While the agency blames NLN for the impasse, Staff cannot verify that this is the case. In any event, whether ACEN’s noncompliance is voluntary or has been forced upon it, the Higher Education Act requires the limitation, suspension, or termination of any agency's recognition if the agency is found to be either in noncompliance with the criteria for recognition or ineffective in its performance with respect to those criteria, and sets a 12 month deadline for achieving compliance. If the agency fails to come into compliance within the specified time frame, the law requires termination of the agency's recognition, unless recognition is extended for good cause. The agency has already received a sixth month good cause extension, and provides no basis for a conclusion that a short additional extension would resolve the problem.

In addition to the issues posed by the agency’s organizing documents, the agency’s resistance to amending its purpose to reflect that accrediting programs is a “principal” rather than a “sole” purpose causes concern. The agency claims it is a Title IV gatekeeper, but under the HEA an entity’s accreditation must be institutional, rather than programmatic, to participate in Title IV (see HEA 102). Under the Secretary’s criteria, institutional accreditors have responsibilities that programmatic accreditors do not. The agency’s refusal to acknowledge a role as an institutional accreditor and its practice of referring to the entities which it accredits solely as “programs” raises concerns that it is not providing institutional accreditation to the entities for which it purports to act as a gatekeeper and that accordingly it is imperiling those entities’ Title IV eligibility. Furthermore, if the agency provides no “institutional” accreditation then Title IV cannot provide the “federal link” required for recognition under 34 CFR 602.10.


 

(b) For purposes of this section, the term separate and independent means that--
(1) The members of the agency's decision-making body--who decide the accreditation or preaccreditation status of institutions or programs, establish the agency's accreditation policies, or both--are not elected or selected by the board or chief executive officer of any related, associated, or affiliated trade association or membership organization;

(2) At least one member of the agency's decision-making body is a representative of the public, and at least one-seventh of that body consists of representatives of the public;

(3) The agency has established and implemented guidelines for each member of the decision-making body to avoid conflicts of interest in making decisions;

(4) The agency's dues are paid separately from any dues paid to any related, associated, or affiliated trade association or membership organization; and

(5) The agency develops and determines its own budget, with no review by or consultation with any other entity or organization.

 
As noted in the previous criterion the agency continues to be out of compliance with the separate and independent requirements of the Secretary’s Criteria for Recognition, and Department staff is unaware of any progress between NLN and ACEN to address ACEN’s noncompliance.

As noted in the 2014 compliance report, compliance would have been achieved but for the nullification of the amendments to the certificate of incorporation and bylaws resulting from the agency's apparent violation of New York law. In the absence of lawful revisions to the documents in question conforming them to the separate and independent requirements the Department cannot find ACEN in compliance.

The Department continues to state that an amendment to the certificate and bylaws, made with the approval of NLN as required by New York law, could have addressed the deficiencies under 600.14 (a) and (b) if they had precluded NLN involvement and the impingement on the agency's independence going forward, notwithstanding the one-time involvement of NLN in approving those changes.





Analyst Remarks to Response:
The ACEN has informed the Department that "current action is pending between NLN and ACEN in the New York Supreme Court in which ACEN has raised a claim of promissory estoppel based on NLN's representations that ACEN will comply with DOE's separate and independent requirements and that NLN will do nothing to jeopardize ACEN's recognition by DOE". However, this claim has not yet been ruled on.

While the Department was hopeful that NLN and ACEN would be able to come to an agreement in which compliance with the Secretary's "separate and independent" requirements would be accomplished within the time frame allowed under the Higher Education Amendments of 1998, the agency remains out of compliance with the requirements of this section.
 
 

PART III: THIRD PARTY COMMENTS

 
The Department did not receive any written third-party comments regarding this agency.