Note: The U.S. Department of Education is not taking written public comments at the present time. MoKanSan received the following message:
"Thank you for your comment. At this time though, we are not accepting written comments. Written comments will be accepted when the proposed rules are published in the Federal Register sometime this summer."
Please feel free to participate in the public comment period this week. See the instructions below on how to secure a three-minute public comment spot.
This week is the final week for the U.S. Department of Education negotiated rulemaking proceedings. One topic of great interest concerning state authorization is the proposed language in Issue Paper 6: Certification Procedures [34 CFR 668.14(b)(iii)]. The language, regarding the expectations for institutions participating in a state authorization reciprocity agreement, states the institution must:
“comply with all State consumer protection laws, including both generally-applicable State laws and those specific to educational institutions, except for State requirements for obtaining authorization that are inapplicable pursuant to a State authorization reciprocity agreement.”
The proposed language may, in fact, cause unintended consequences and directly impact and drastically limit reciprocity through the National Council for State Authorization Reciprocity Agreements (NC-SARA). The intent of the language as currently proposed is that the benefits of reciprocity would be limited only to the act of applying for authorization and the payment for that application. The enhanced student consumer protections afforded by NC-SARA would go away. If approved, this language would diminish necessary state capacity for oversight, and the costs and staffing required for institutions to comply across the states would grow dramatically. Some institutions may be forced to add staff and costs for compliance or decide to only accept students from certain states. Smaller, rural universities would have less resources to comply, while the wealthier or for-profit institutions would be better positioned. Essentially, NC-SARA students would not be allowed to enroll in or continue their educational programs unless their institutions meet additional requirements for authorization, if required, from each individual state in which they have students.
Participation in NC-SARA, whether state or institution participation, is voluntary. Today, 49 states, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands have agreed to the terms of and voluntarily participate in NC-SARA. More than 2,300 institutions voluntarily participate in NC-SARA, providing a more efficient, consistent, and effective regulation of distance education programs.
The states’ decision to voluntarily participate in NC-SARA was due to either legislative action that was signed by the state’s governor (more often the case) and/or approval by the state’s authorization board. While the intention may be to enhance consumer protection, the proposed language has the potential to cause unintended consequences and undermine the necessary input states should have into their own reciprocity agreements. Participating institutions are subject to uniform requirements that are overseen by the institution’s home state. Removal of the uniform oversight structure would cause a return to a more confusing and inequitable administration of consumer protection for students.
Prior to NC-SARA, institutions adopted the door-to-door salesman approach to state authorization. Each state varies greatly in the institutional application requirements and in consumer protections offered to distance education students. Some states require an onerous and costly application process in order to offer distance education, whereas other states have very little oversight of out-of-state institutions providing distance education to residents of their state. Without NC-SARA, students have extremely different levels of recourse when they are negatively impacted by a higher education provider. Participation in NC-SARA does not eliminate the fact that the institution remains subject to other state regulations that are “generally applicable” to any business, including registration with the Secretary of State’s office as a business if required, authorization/approval from state licensure boards if required, misrepresentation, fraud, and adherence to state Department of Labor rules for those completing internships in certain states.
The bottom line is the students will suffer if this proposed language goes into effect.
- Each institution would revert back to the door-to-door salesman approach, requiring them to monitor and respond to regulations for each individual state in which they enroll students. This includes adopting the tuition refund schedule for various states, posting surety bonds in some states, submitting annual reports to certain states, etc.
- Institutions may limit the number of states for which they will serve students due to additional and varying state requirements; therefore, there will be fewer options for students to complete their desired program online.
- Many students – including military affiliated students – may find their education constrained when they are transferred to states for which the institution has chosen not to serve.
- There will be uneven protection for students as each state varies greatly in consumer protection offered.
- Some states may impose restrictive consumer protection requirements, several states have very little oversight of out-of-state providers of distance education.
- The institution support for the student will vary based upon the consumer protections required by the state.
How can you voice your concern?
- Prepare your comments personalized to address the impact at your institution and send to Gregory Martin, who serves as the Federal Negotiator who is leading this rulemaking committee: Gregory.Martin@ed.gov and/or the comment request e-mail negreghearing@ed.gov as soon as possible to ensure that your message is available in advance of final voting next week by the negotiators.
- NC-SARA has created a Call to Action webpage with information on the proposed regulation, including template letters for institutions, states, students, and other organizations. WCET Frontiers published an article further breaking down the issues at hand.
- If a comment is an official one on behalf of the institution, be sure to follow the proper channels for an official comment.
- You can comment on your own accord, using your title and institution name, but be sure not to use letterhead or imply that it is anything other than your informed opinion.
- You may additionally comment by participating in the public comment times this week with a three-minute statement at the end of each rulemaking day, Monday-Thursday. To request time to comment, please send the name of the speaker, as well as the name of the organization, if applicable, to negreghearing@ed.gov no later than 12:00 p.m. Eastern time on the day of the meeting.
- Additionally, you may e-mail your letters to the following Negotiated Rulemaking Institutional and Programmatic Eligibility Committee members, available at Negotiated Rulemaking for Higher Education 2021-22 website (See Institutional and Programmatic Eligibility Committee at bottom of page).
- If you would like to stream this final week of rulemaking (March 14-18), register for Session 3 here.